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The Death Penalty in Japan


In capital cases as well, there are some cases where the death sentence has been imposed and finalised despite insufficient assistance from a defence lawyer, but there have been no cases in which a death sentence has been overturned because of the ineffective assistance of counsel. Tis raises serious concerns that Article 14(3)(d) of the ICCPR is not being respected in all capital cases.


Disclosure


Few international instruments expressly provide a right of disclosure, but it has consistently been read into the right to a fair trial generally and the right to adequate time and facilities to prepare a defence under Article 14(3)(b). Te classic statement comes from the ECtHR in the case of Edwards v. UK59


:


“…it is a requirement of fairness [under Article 6] …that the prosecution authorities disclose to the defence all material evidence for or against the accused and that failure to do so [can] give rise to a defect in the trial process.”


While it is permissible to withhold material from the defence that does not have the potential to assist the defence on grounds of public interest immunity only such measures as are ‘strictly necessary’ are permissible (Van Mechelen v. Netherlands60


; Rowe and Davis v. UK61 Japanese law and practice


When Japan established a formal pre-trial procedure in 2005, a provision requiring disclosure of evidence in cases that employ the new process was established. Criminal cases now fall into one of two categories: those in which the formal pre-trial procedure is required, and those in which it is not.


Murder cases in Japan ordinarily must go through the formal pre-trial procedure, but the newly established system of discovery does not require prosecutors to disclose to the defence all of the evidence in their possession and hence does not conform to the right to a fair trial and, in particular, to the right to ‘adequate time and facilities to prepare a defence’ under Article 14(3)(b). As a result, Japanese defence lawyers work at a huge informational disadvantage compared to their police and prosecutor counterparts in potentially capital cases.


Legal aid


Under Article 8(2)(e) of the ACHR, appointed counsel is to be paid by the state only if domestic law so provides. However, the IACtHR has held that states must provide counsel free of charge for a person who cannot afford to pay, if counsel is necessary to ensure a fair hearing (Advisory Opinion, 10 August 1990).62


).


59 60 61 62


(1993) 15 EHRR 417 (1993) 15 EHRR 647 (2000) 30 EHRR 1 OC-11/90


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