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


Hakamada to death deeply regrets his own participation in a case he considers to be a wrongful conviction.47


Minimum fair trial guarantees in capital cases


Te comprehensive provisions of Article 14 of the ICCPR set out in detail the minimum guarantees for a fair trial. Tese provisions must be respected in all capital cases.


Te fifth Safeguard states: “Capital punishment may only be carried out pursuant to a final judgment rendered by a competent court after legal process which gives all possible Safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the ICCPR, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings.”


Te UN Special Rapporteur on extrajudicial, summary, or arbitrary executions has stated that fair trial guarantees in death penalty cases “must be implemented in all cases without exception or discrimination”48


. Te Special Rapporteur has reiterated that “proceedings leading to the imposition


of capital punishment must conform to the highest standards of independence, competence, objectivity and impartiality of judges and juries, in accordance with the pertinent international legal instruments.”49


Te general understanding is that those facing the death penalty should be afforded


special protection and all guarantees to ensure a fair trial (sometimes referred to as “super” due process’) above and beyond the protection afforded in non-capital cases.


Te HRC has consistently held that if Article 14 (fair trial) of the ICCPR is violated during a capital trial, then Article 6 (right to life) of the ICCPR is also breached. In Carlton Reid v. Jamaica the HRC held that:


“[T]he imposition of a sentence of death upon the conclusion of a trial in which the Provisions of the Covenant have not been respected constitutes… a violation of Article 6 of the Covenant. As the Committee noted in its General Comment 6(16), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the present Covenant implies that ‘the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal’.”50


47


Tis judge (Kumamoto Norimichi) originally wanted to acquit Hakamada, and wrote a 360-page document stating his reasons for believing in the


defendant’s innocence, but he was outvoted by two other judges on the panel who wanted to convict and condemn the defendant to death. Te following year (1969) Kumamoto quit the bench in protest, and in 2007 he filed a petition with Japan’s Supreme Court demanding a retrial for Hakamada. See


Yamadaira Shigeki, Sabakareru no wa Ware Nari: Hakamada Jiken Shunin Saibankan Sanjukunen no Shinjitsu (Tokyo: Futabasha, 2010) 48


49 50


Extrajudicial, summary or arbitrary executions: Report of the Special Rapporteur…, UN Document E/CN.4/2001/9, 11 January 2001, paragraph 86 Extrajudicial, summary or arbitrary executions: Report of the Special Rapporteur…, UN Document E/CN.4/1997/60, 24 December 1996, paragraph 81 (Communication No. 250/1987), U.N. Doc. CCPR/C/39/D/250/1987, at paragraph11.5


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