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Towards a more effective approach to human rights and democracy: a tailored human rights strategy for Japan. Dr. Paul Bacon Deputy Director, EUIJ Waseda The Asia-Pacific Roundtable on EU Studies January 2013, Hualien , Taiwan. 4 recent EU documents on human rights and democracy.

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Dr. Paul Bacon Deputy Director, EUIJ Waseda The Asia-Pacific Roundtable on EU Studies

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Towards a more effective approach to human rights and democracy: a tailored human rights strategy for Japan

Dr. Paul Bacon

Deputy Director, EUIJ Waseda

The Asia-Pacific Roundtable on EU Studies

January 2013, Hualien, Taiwan


4 recent EU documents on human rights and democracy

  • December 2011: High Representative of the EU, Human Rights and Democracy at the Heart of EU External Action - Towards a More Effective Approach.

  • June 2012: Council of the European Union, EU Strategic Framework on Human Rights and Democracy.

  • June 2012: Council of the European Union, EU Action Plan on Human Rights and Democracy.

  • October 2012: European Parliament, Enhancing EU Action on the Death Penalty in Asia, Briefing Paper.


Core elements of the 4 EU documents

  • Renewal - policy needs to be ‘more active, more coherent, more effective’.

  • Tailoring – need to create tailored, bottom-up, country-specific human rights strategies.

  • Priorities - administration of justice, and the right to a fair trial (due process) recognized as human rights priorities.

  • Universal - commits the EU to universal human rights norms.

  • Local – commits the EU to working in partnership with local civil society organizations.

  • Campaigns - need for cross-cutting themes such as judicial reform, right to a fair trial (HR).

  • HR – in some countries, abolition of the death penalty is unlikely.

  • In such cases it would be more practical to shift attention to other issues.

  • Parliament – countries are at different stages on journey to abolition, and therefore require different strategies.

  • All states to ratify and implement universal human rights treaties.

  • Four documents all explicitly recommend that EU should draw on standards in reports produced by the UN human rights bodies.


Developments on Human Rights in Asia

  • Of 24 Asian countries discussed in the Parliament report:

    • Five have abolished the DP: Bhutan, Cambodia, Mongolia, Nepal, Philippines.

    • Six are abolitionist in practice: Brunei, Burma, Laos, Maldives, South Korea, Sri Lanka.

    • Four have a significant downward trend in executions: China, Malaysia, Pakistan and Singapore.

    • Nine have experienced little or no progress: Afghanistan, Bangladesh, India, Indonesia, Japan, North Korea, Taiwan, Thailand, Vietnam.


Figure 1: Number of executions in Japan between 1998 and 2013


Developments on Human Rights in Japan 1

  • The Parliament report identifies Japan’s situation as having fluctuated markedly in recent years.

  • It implies that there is little chance of an official moratorium or abolition of the DP. I agree.

  • The Democratic Party of Japan was in power for three years, between 2009 and 2012, and was generally less supportive of the DP. (Only 2 executions in 2.5 years, until March this year)

  • There were two periods of de facto moratorium when the DPJ was in power, the second of which lasted 20 months. This year, however, there have been 7 executions.

  • There was a general election on December 16th, which was won emphatically by the Liberal Democratic Party, which is generally highly supportive of the DP.

  • Roughly 85% of the Japanese public supports the DP.


Developments on Human Rights in Japan 2

  • This makes it politically costly to consider abolition, and offers an easy excuse to continue with executions.

  • The DPJ was prepared to uphold a de facto moratorium during the middle of its term.

  • But the de facto moratorium was the high-water mark of what is currently achievable in Japan on the DP, especially as the LDP won on the 16th.

  • So, a more differentiated human rights strategy is necessary for Japan.

  • This approach should still include the DP, but should not focus exclusively or excessively on the DP.

  • There are other human rights issues in Japan which are arguably more important than the DP, on which there is greater possibility of movement by the Japanese government.

  • Broadly, I am referring to due process and criminal justice issues, which I have separated out horizontally from death penalty issues in slides 8-11.

  • I have also categorized death penalty and due process issues vertically, listing them provisionally in descending order of priority (starting with the most important).

  • Issues in red and marked with an * are most important/most achievable.


Death penalty-related recommendations 1Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008)

  • Abolition of the death penalty

  • Official moratorium on death penalty.

  • Unofficial moratorium on death penalty.

  • Significant reduction in number of executions

  • Reduction in the number of executions

  • Persons at an advanced age or with mental disabilities not to be executed.

  • Minors not to be executed.

  • Death penalty strictly limited to the most serious crimes.

  • Powers of pardon, commutation and reprieve to be genuinely available to those sentenced to death.

  • Mandatory system of review in capital cases*.

  • Suspensive effect of requests for retrial or pardon in such cases*.


Death penalty-related recommendations 2Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008)

  • Strict confidentiality for all meetings between death row inmates and their lawyers concerning retrial*.

  • Inmates on death row and their families to be given reasonable advance notice of the scheduled date and time of the execution, to prepare themselves for this event*.

  • Ensure that solitary confinement remains an exceptional measure of limited duration*.

  • Introduce a maximum time limit for solitary confinement.

  • Require prior physical and mental examination for inmates to be confined in protection cells.

  • Discontinue practice of segregating certain inmates in “accommodating blocks” without clearly defined criteria or possibilities of appeal.

  • Inform public about the desirability of abolition.


Due process-related recommendations 1Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008)

  • Abolish substitute detention system (23 days, 72 hours).

  • Right of confidential access to legal aid from the moment of arrest and irrespective of the nature of their alleged crime, for all suspects*.

  • Right of confidential access to a lawyer during the interrogation process for all suspects*.

  • Right of all suspects to have counsel present during interrogations, to prevent false confessions and ensure the rights of suspects*.

  • Strict time limits for interrogation of suspects, and sanctions for non-compliance*.

  • Systematic use of video recording devices for entire duration of interrogations*.

  • Role of police during criminal investigations is to collect evidence for the trial rather than establishing the truth.

  • Silence of suspects not considered inculpatory.


Due process-related recommendations 2Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008)

  • Courts to rely on modern scientific evidence rather than confessions made during police interrogations.

  • Right of confidential access to all police records related to their case for all suspects.

  • Right of confidential access to medical treatment for all suspects.

  • Pre-indictment bail system to be introduced.

  • The Penal Institution and Detention Facilities Visiting Committees are adequately equipped and have full access to all relevant information.

  • Members of above committees not appointed by management of penal institutions and police detention facilities.

  • The Review and Investigation Panel for Complaints from Inmates of Penal Institutions adequately staffed and its opinions binding on the Ministry of Justice.

  • Competence for reviewing complaints by detainees to be transferred from the Prefectural Public Safety Commissions to an independent body comprised of external experts.


General Recommendations

  • Country-specific specialist advisory committees composed of 8-10 members (civil society) to identify 5 issues from each list to focus on, using the criteria of importance and likelihood of reform.

  • Public opinion polling on DP in Japan.

  • Possibility of deliberative polling exercises based on the death penalty/criminal justice.

  • Region-wide expert committee of 8-10 members, to co-ordinate and review country strategies.

  • Re-booting of the Tokyo Human Rights Task Force (diplomatic grouping of some 10 EU member-states).

  • Publication of annual 10-15 page EU-sponsored country report (possibly confidential)

  • Continued support for death penalty lobby groups such as the Federation of Bar Associations, the Diet Members League, and for relevant NGOs such as the Center for Prisoners’ Rights.


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