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


b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.


3.Te penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.


Even where a person faces a capital charge or has been sentenced to death by a court applying the highest standards of process, the treatment of a person in custody or following sentence may deprive him of dignity or be considered inhumane. Such treatment is not merely a violation of the ICCPR in its own right, but also prevents effect being given to the sentence of death. Compliance with Article 6 requires any deprivation of life to be in accordance with the “other provisions of this Covenant”.


Te HRC’s General Comment dates from 199222 and is somewhat out of date. However, that


comment combined with the subsequent case law particularly of the European Court of Human Rights23


(ECtHR) suggests that inhuman treatment is where severe suffering is caused irrespective


of intention. Cruel treatment means the same and degrading treatment is where a person is disproportionately humiliated and deprived of dignity. Whilst capital punishment, imprisonment and being restrained at trial all have the capacity to humiliate and degrade, there will only be a violation of this norm in the context of detention and punishment if the treatment is either done with the purpose of inflicting humiliation over and above the legitimate acts themselves, or does humiliate without objective justification.


Te ninth Safeguard states that where capital punishment occurs, “ …it shall be carried out so as to inflict the minimum possible suffering”. Tis requirement is relevant once a death sentence has been imposed. Issues may arise with respect to the conditions of detention on death row, and the HRC has expressed concern inter alia about poor living conditions, including undue restrictions on visits and correspondence24


cells. Te Committee against Torture has addressed the issue of conditions of detention for those under sentence of death and recognised that the mental anguish caused by spending an excessive length of time on death row may amount to cruel, inhuman, and degrading treatment.25


In resolution 1996/15, the UN Economic and Social Council urged member states in which the death penalty may be carried out “to effectively apply the [UN] Standard Minimum Rules for the Treatment of Prisoners, in order to keep to a minimum the suffering of prisoners under sentence of death and to avoid any exacerbation of such suffering.”26


Japanese law and practice


Te following seven points summarise some of the most relevant Japanese laws and practices with respect to prohibitions against torture and related ill-treatment.


22 23


GC No 20 (1992)


(2010) E Ct HR 24


25 26


See for example Peers v Greece (2001) and the extensive subsequent case law including Dougoz v Greece, Kalashnikov v Russia, and Onofriou v. Cyprus Concluding observations of the Human Rights Committee: Japan<UN Document CCPR/CO/&(/Add.102, 19, November 1998 at paragraph 21


See Report of the Secretary-General, Note 5 above at p.54 Note 8 above at paragraph 7


11


, small cell sizes, lack of proper food and exercise, and inadequate time spent outside


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68