Japan’s legal obligations on the use of the death penalty


Principle 3 of the Basic Principles on the Role of Lawyers, require states to provide sufficient funding and other resources to provide legal counsel to the poor and disadvantaged.


Te HRC have held that state parties to the ICCPR have an obligation to make remedies in the constitutional courts available and effective in relation to claims of violations of the rights set out in the ICCPR. In Rawle Kennedy v. Trinidad & Tobago the HRC held that the denial of legal aid for the applicant to pursue a constitutional motion relating to an alleged violation of his right to a fair trial constituted a violation of Article 14(1) read together with Article 2(3) of the ICCPR:


“Te Committee notes that the Covenant does not contain an express obligation as such for any State party to provide legal aid to individuals in all cases but only in the determination of a criminal charge where the interests of justice so require (Article 14(3)(d)). It is further aware that the role of the Constitutional Court is not to determine the criminal charge itself, but to ensure that applicants receive a fair trial. Te State party has an obligation, under Article 2, paragraph 3, of the Covenant, to make the remedies in the Constitutional Court… available and effective in relation to claims of violations of Covenant rights. As no legal aid was available to the author before the Constitutional Court in relation to his claim of a violation of his right to a fair trial, the Committee considers that the denial of legal aid constituted a violation of Article 14, paragraph 1, in conjunction with Article 2, paragraph 3.”63


Japanese law and practice


In Japan, state-appointed defence lawyers are appointed after a judge has made a detention decision. One result is that from arrest to detention there is a strong possibility that suspects without resources will have no legal representation. Moreover, since state-appointed defence lawyers are only appointed for certain kinds of crime which are punishable by death, life imprisonment, or imprisonment for more than three years, suspects do not receive this essential form of assistance for minor offences. Problems commonly arise in murder cases that also involve the minor crime of disposing of a dead body. In this kind of case, the suspect is often arrested, detained, and investigated for the minor crime first, without access to a defence lawyer.


In addition, once a criminal penalty has been finalised, legal aid cannot be used, even to seek a retrial. Hence, some inmates have resigned themselves to their death sentence even when they believe it is unjust, simply because they cannot afford to pay for the assistance of defence counsel.64


In 2010,


JFBA conducted its second survey on death row conditions by sending questionnaires to all 110 death row prisoners. Te survey found that 24 inmates said they were not seeking a retrial, and six of them explained that this was because they could not afford to hire attorneys.65


Te minimum fair trial


guarantees provided for under Article 14 of the ICCPR also apply to the appellate process, and the failure to provide legal aid for an appeal or retrial breaches the requirements of Articles 14(3)(d) and 14(5) of the ICCPR (See 1.5.5. below).


63 64


Note 42 above at [7.10]


China University of Politics and Law, Beijing, December 15-16, 2012, pp.1-16 65


Shinomiya Satoru, “Criminal Legal Aid in Japan: Past, Present, and Future”, paper presented at the conference on Criminal Legal Aid in the World, at http://www.nichibenren.or.jp/library/ja/jfba_info/publication/data/shikei_syoguu_enquete_a2.pdf


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