Japan’s legal obligations on the use of the death penalty
monitoring bodies with regard to the death penalty in Japan need to be implemented to ensure compliance with the Safeguards in each and every case.
Japan’s judiciary can play a crucial role in ensuring that domestic law is interpreted and construed consistently with human rights norms restricting the death penalty pending abolition. Te wave of recent case law from national courts around the world – which have found, for example, that mercy procedures are judicially reviewable – reveals an increasing interdependence between different legal systems. It also reveals a willingness by the judiciary to invalidate laws that do not comply with contemporary international norms and to ensure scrupulous respect for fair trials and due process guarantees in capital cases.
In the years leading up to the start of Japan’s lay judge system in 2009, more than 500 “mock trials” were held. Te main objective of those test trials was to anticipate the problems that might occur in the new trial system and to prepare for the complexities that inevitably accompany fundamental reform of this kind. But despite the scale of this preparation, not a single mock trial was held in which prosecutors sought a sentence of death and a mock tribunal was asked to make a life-or- death decision. Tis absence illustrates the Japanese tendency to assume death is not a fundamentally different form of punishment – and one that therefore requires special preparations, procedures, and protections. Part 1 of this report has shown that in many respects Japan’s death penalty policy and practice fail to conform with its legal obligations under the ICCPR. From the overly broad scope of Japan’s capital statutes, to the de-facto death of executive clemency, to the ill-treatment of inmates on death row and the possibility of execution without appeal, to problems of access to capable defence counsel and to potentially mitigating or exonerating evidence possessed by prosecutors, Japan’s system of capital punishment is seriously flawed.76
Tere is a large gap between what Japan is required to do
under the ICCPR and the Safeguards set up to protect those facing the death penalty and what its domestic law requires for the administration of capital punishment. Until this gap is either eliminated or significantly reduced in size, Japan will remain an international outlier with respect to “the gravest real-life problem in the law.”77
Recommendations:
To achieve a measure of conformity with binding international norms and the obligations of Japan under the ICCPR, the following reforms to the criminal and constitutional laws that regulate Japan’s death penalty need to be implemented:
• Eliminate the death penalty from crimes which do not involve deliberate intent to kill • Strengthen procedural guarantees in the trial and appellate processes
For additional analysis of shortcomings in Japanese capital punishment, see David T. Johnson, “Progress and Problems in Japanese Capital Punishment”, in Roger Hood and Surya Deva, editors, Confronting Capital Punishment in Asia: Human Rights, Politics, Public Opinion and Practices (Oxford University
76
Press, 2013, forthcoming) 77
Scott Turow, Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty (New York: Farrar, Straus and Giroux, 2003), p.11 29
• Abolish the system of daiyo kangoku and replace it with a system that provides effective judicial control over the use of pre-trial detention, the length of which needs to be dramatically reduced
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