Japan’s legal obligations on the use of the death penalty
In Resolution 1989/6455
, the UN Economic and Social Council recommended that Member states
afford “special protection to persons facing charges for which the death penalty is provided by allowing time and facilities for the preparation of their defence, including the adequate assistance of counsel at every stage of the proceedings, above and beyond the protection afforded in non-capital cases”.
In Frank Robinson v. Jamaica the HRC considered whether a State Party is under an obligation itself to make provision for effective representation by counsel in a capital case, should the counsel selected by the defendant decline to appear. Te Committee held that “it is axiomatic that legal assistance be made available in capital cases”56
and that Jamaica was in breach of Article 14(3)(b) of the ICCPR as the applicant had faced a capital trial without legal representation.
In Trevor Collins v. Jamaica, counsel effectively abandoned the appeal against a capital conviction without prior consultation with the author. Te HRC stated that:
“While article, paragraph 3 (d), does not entitle the accused to choose counsel provided to him free of charge, measures must be taken to ensure that counsel, once assigned, provides effective representation in the interest of justice.”57
[emphasis added] Similarly in John Campbell v. Jamaica58 the HRC noted that the complainant was only notified
the name of his court-appointed lawyer after the appeal was dismissed meaning that he had no opportunity to prepare his defence, thus violating Article 14 (3)(d) of the ICCPR.
Japanese law and practice
In Japan, there are no legal provisions requiring the effective assistance of defense counsel. Indeed, Japanese courts tend not to find problems even when defense counsel’s assistance is clearly ineffective and inappropriate.
One example is a decision of the Tird Petit Bench of Japan’s Supreme Court issued on 29 November 2005. In this opinion, Japan’s highest court found no legal problem with the court proceedings of first instance, which did not take any corrective measures in a murder case involving a defendant who changed from confessing to a complete denial of the charges against him in the middle of his trial, even while the defendant’s defence lawyer continued presenting a trial defense based on the defendant’s previous admissions of guilt. In effect, the Supreme Court ruled that it is permissible for a defence lawyer to ignore a client’s statements about the criminal charges against him or her.
However, a similar case was decided by the Tokyo High Court on 12 April 2011. In this case, the defense lawyer made arguments in court based on the premise that the defendant was guilty, even though the defendant had stated that he was not guilty, and the High Court overruled the original decision by finding that the defence lawyer’s actions were incompatible with his basic obligation to protect the interests of his client and that there was a violation of the rules for court proceedings.
55 56 57 58
Note 7 above, at paragraph 1(a)
(Communication No. 223/1987), U.N. Doc. CCPR/C/35/D/223/1987 at paragraphs 10.3 and 10.4 CCPR/C/47/D/356/1989, 12 May 1993 at [8.2] CCPR/C/47/D/307/1988 20 June 1988
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