EU human rights policy and Japan

1. EU human rights policy and Japan Paul Bacon Waseda University Deputy Director, EUIJ Waseda pbacon@waseda.jp

2. The Transformative Power of Europe? 1 • The EU has a very strong self-image. The EU is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. • The EU requires potential members, and encourages its partners, to respect and uphold these principles. • Particularly with regard to EU enlargement, people have talked about the soft power and the transformative power of the EU. • Most people agree that the EU has successfully demonstrated these powers in its near abroad. • Through conditionality, the EU has transformed the domestic political, economic and social systems of European states who want to join the EU.

3. The Transformative Power of Europe? 2 • However, it is not clear whether European transformative power only works in the European region. • Does the EU have the power and attractiveness to spread its ideas beyond the European sphere, using techniques of conditionality? • There is a large literature on EU transformative power, but the focus has overwhelmingly been on the European region. • Little has been written about the EU’s relations with non-European states. • Does the EU have the soft power to influence the human rights policies of Japan and Korea? • More specifically, does the EU have the soft power to influence Japan’s policy on the death penalty? • Recent developments would suggest that the answer to this question is a resounding ‘no’.

4. EU Policy on the Death Penalty 1 • The EU considers that abolition of the death penalty contributes to the enhancement of human dignity and the progressive development of human rights. • The objectives of the European Union are: • To work towards universal abolition of the death penalty as a strongly held policy view agreed by all EU member states; if necessary with the immediate establishment of a moratorium on the use of the death penalty with a view to abolition. • Where the death penalty still exists, to call for its use to be progressively restricted and to insist that it be carried out according to minimum standards as set out in the attached paper, while seeking accurate information about the exact number of persons sentenced to death, awaiting execution and executed. • These objectives are an integral part of the EU’s human rights policy.

5. EU policy on the Death Penalty 2 • The EU considers the death penalty to be a cruel and inhuman punishment, which represents an unacceptable denial of human dignity and integrity. • The EU uses all available means – diplomatic channels and raising public awareness - in working towards the goal of abolishing the death penalty throughout the world. • In 2009, the EU issued statements on over 30 individual death penalty cases and carried out more than 30 demarches measures regarding individual cases. • EU High Representative for Foreign Affairs and Security Policy and Vice-President of the European Commission Catherine Ashton said: “It is encouraging that the large majority of states have abolished the death penalty in law or practice. However, there is no room for complacency - every execution is one too many. This is why I have made our work on the abolition of the death penalty a personal priority”.

6. Global Abolitionist Norm? • Ashton refers to a worldwide trend towards abolition: • In 2009, at least 5,679 executions were carried out, down from a minimum of 5,735 in 2008 and a minimum of 5,851 in 2007. • Between 1993 and 2009, the number of countries that abolished the death penalty by law for all crimes, grew from 55 to 97. • Today, 139 countries - more than 2/3 of the countries of the world - are abolitionist in law or practice. • Of the 58 countries/territories retaining the death penalty, 18 were known to have carried out executions in 2009 (China, Iran, Iraq, Saudi Arabia and the US top the league).

7. The EU, the UN and the DP • The EU also acts against the death penalty in multilateral organizations such as the United Nations. • On December 21st 2010 the United Nations General Assembly approved a new resolution in favour of a universal moratorium on the death penalty. 108 countries voted in favour, with 41 against and 36 abstentions (another 7 countries were absent at the time of the vote). • The number of countries supporting the moratorium has increased each time the vote has been held (there were also votes in 2007 and 2008).

8. The EU Delegation in Tokyo (And EUIJ Waseda) • The EU Delegation in Tokyo places a high priority on human rights and the abolition of the death penalty. • EUIJ Waseda has co-hosted several high profile events about the death penalty, in partnership with the EU Delegation and other European member-states. • Reflections on life: European and Asian perspectives on capital punishment, December 2nd, 2009. • Co-Hosted by the Swedish Embassy, the Delegation of the EU to Japan and EUIJ Waseda • Promoting Human Rights in Japan through U.N. Treaties, November 4th, 2010. • Co-Hosted by the Delegation of the EU to Japan and EUIJ Waseda • The Death Penalty: Japan in World Perspective, November 25th, 2010. • Co-Hosted by the British Embassy, the Netherlands Embassy and EUIJ Waseda.

9. EIDHR • The EU’s political commitment has been matched by substantial financial support for concrete projects. • Global abolition is and remains one of the main objectives of the EU’s human rights policy. • The EU is the leading institutional actor and lead donor supporting the fight against the death penalty.   • The abolition of the death penalty is one of the thematic priorities in the European Instrument for Democracy and Human Rights (EIDHR), which is the lead source of funding for abolitionist projects worldwide.

10. The five EIDHR objectives • 1) Enhancing respect for human rights and fundamental freedoms in countries where they are most at risk; • 2) Strengthening the role of civil society in promoting human rights and democratic reform, in supporting the peaceful conciliation of group interests and, in consolidating political participation and representation; • 3) Supporting actions on human rights and democracy issues in areas covered by EU Guidelines, including on human rights dialogues, on human rights defenders, on the death penalty, on torture, on children and armed conflict, on the rights of the child, on violence against women and girls and combating all forms of discrimination against them, on International Humanitarian Law and on possible future guidelines; • 4) Supporting and strengthening the international and regional framework for the protection and promotion of human rights, justice, the rule of law and the promotion of democracy; • 5) Building confidence in and enhancing the reliability and transparency of democratic electoral processes, in particular through election observation.

11. Capital punishment in Japan • Capital punishment is legal in Japan. • Between 1946 and 1993, Japanese courts sentenced 766 people to death, 608 of whom were executed. • The death penalty is ordinarily imposed in cases of multiple murders involving aggravating factors. • In Japan, the courts follow guidelines developed in the trial of Norio Nagayama, a 19 year old from a disadvantaged background, who committed four murders. • The supreme court of Japan, in imposing the death penalty, ruled that the death penalty may be imposed in consideration of the degree of criminal liability and balance of justice, based on a nine-point set of criteria. • Though technically not a precedent, the ‘Nagayama standard’ has been followed in all subsequent capital cases in Japan. • These guidelines were also used in the first case where lay judges were asked to pass judgment in a capital case and found the defendant guilty.

12. The Nagayama Standard • 1. Degree of viciousness • 2. Motive • 3. How the crime was committed; especially the manner in which the victim was killed. • 4. Outcome of the crime; especially the number of victims. • 5. Sentiments of the bereaved family members. • 6. Impact of the crime on Japanese society. • 7. Defendant's age (in Japan, someone is a minor until the age of 20). • 8. Defendant's previous criminal record. • 9. Degree of remorse shown by the defendant.

13. Conditions on death row • Those on death row are not classified as prisoners by the Japanese justice system, and the facilities they are held at are not referred to as prisons. • Inmates lack many of the rights afforded to other Japanese prisoners. • The nature of the regime they live under is largely up to the director of the Detention Center, but it is usually significantly harsher than normal Japanese prisons: • Inmates are held under solitary confinement and are forbidden from communicating with their fellows. • They are permitted two periods of exercise a week. • They are not allowed televisions and may only possess three books. • Prisoners are not allowed to exercise within their own cells. • Prison visits, both by family members and legal representatives, are infrequent and closely supervised.

14. Numbers • Executions are carried out by hanging in a death chamber within the Detention Center. • When a death order has been issued, the condemned prisoner is informed on the morning of his or her execution. • The prisoner‘s family and legal representatives are not informed until afterwards. • There are presently 130+ people awaiting execution in Japan. • You can see the recent trend in the number of executions in the following slide. • After a comparative lull between 2000 and 2005, the number of executions rose significantly in the following three years. • The number of executions initially declined again when the Democratic Party of Japan (DPJ) came to power in 2009. • However, this trend has been dramatically reversed in 2012, as we can see from the next slide.

15. 7 DPJ-authorized executions • On July 28th, 2010, Justice Minister Keiko Chiba, a lawyer-turned politician from the Democratic Party of Japan, authorized and witnessed the executions of two death row inmates. • She had been a member of the Diet Members League Against the Death Penalty, and the Amnesty Diet Members League until she assumed the post of Minister, and had been was widely and mistakenly expected to refuse to sign an execution warrant. • During her tenure Chiba had expressed her desire to initiate discussion on the issue of the death penalty, and had demonstrated a cautious stance. • However, Chiba had lost her seat in the Upper House election on July 11th, and would have lost her Cabinet seat in the impending reshuffle. • It is still not clear exactly why Chiba took the decision to authorize the executions. • After the two Chiba-authorized executions there was an 18-month period where no executions took place, leading some to suggest that Japan had experienced a de facto moratorium on executions. • However, there have now been 7 executions this year, with three taking place in march, two in August, and two more in September, including the first woman to be executed for 15 years.

16. Number of executions in Japan between 1998 and 2012

17. Public opinion in Japan • The death penalty is broadly supported by the Japanese public. • In 34 polls taken between 1953 and 1999, support for the death penalty has never dropped below 50 percent. • A late 2009 Cabinet Office survey shows that a record 85.6 percent of Japanese favor maintaining the death penalty. • The percentage of those who said the death penalty is unavoidable was up 4.2 points from the previous survey in 2004. • Only 5.7 percent of respondents said it should be abolished for no matter what crime. The figure was down 0.3 point from six years ago. • Those who supported the death penalty said victims and their families would remain frustrated (54%) and heinous crimes would increase if the punishment was abolished (51.5%). • The survey, carried out from late November to early December, covered 3,000 people, and received valid responses from 1,944. The survey has been conducted every five years since 1994. • In 2008, the United Nations Human Rights Council recommended that Japan abolish the death penalty regardless of public opinion. • The government has maintained the punishment, citing public support.

18. Saiban-in system • Beginning in 2009, Japan instituted a jury system called saiban-in. • Juries consisting of three legally-trained judges and six citizens chosen by lottery now decide criminal cases by majority vote. • Since 1943, verdicts had been decided by three-judge panels, leaving citizens with no voice in a system in which virtually all criminal trials end in a conviction. • The return to citizen participation represents a bold commitment to have ordinary Japanese take greater responsibility in running the country. • If a jury is sufficiently unhappy with the government‘s case or the government’s conduct, it can simply refuse to convict. • A majority not guilty vote by the jurors can proceed, but a majority guilty vote by the lay judges needs a corresponding vote from a minimum of one professional judge.

19. Saiban-in system • The new system faces many challenges. • According to surveys conducted by a sociologist, Hiroshi Fukurai, the prospect of jury service intimidates many Japanese. • Other polls show 70 percent of Japanese don't want to be on juries. • Japanese are much more likely to fear retaliation from defendants than American jurors are. • They also have far less confidence than Americans do in their ability to judge fairly. • Some abolitionists believe that the new jury system will mean that Japanese have to become more educated about their own legal system, and that they will be more reluctant to impose the death penalty when they are more personally involved in the decision. • It is probably too early to pass judgment on this question. However, it is necessary to note two early ‘firsts’. • On November 16th 2010, a jury trial in Yokohama sent a man to the gallows for a double murder, in the country's first death penalty ruling by jurors. • On November 25th 2010, Japanese jurors sentenced a teenager to hang for a double murder, the first death penalty given to a minor under the nation's newly-introduced jury system.

20. Japan’s official position on the DP • The Japanese government position on the death penalty is stated clearly on page 36 of the Fifth Periodic Report to the UN Human Rights Committee. • 130. The Government believes that whether to retain or abolish the death penalty should be determined individually by each country, taking into account the public sentiments, crime trends, criminal policies and other relevant factors. • As far as Japan is concerned, whether to retain or abolish the death penalty is an issue of particular importance which relates to the core of the criminal justice system and deserves careful examination from various perspectives, including that of the achievement of social justice, with sufficient attention being paid to public opinion. • In Japan, considering, inter alia, that the majority of the public believes the death penalty to be inevitable for extremely heinous and atrocious crimes (the latest survey was conducted in September 1999) and since such heinous crimes as murder and death on the occasion of robbery resulting in multiple deaths are still being committed, the Government’s view is that imposing the death penalty on those who have committed extremely heinous crimes and whose criminal responsibility is extremely grave cannot be avoided, and that abolishing the death penalty is not appropriate.

21. 3 reasons for the increase • 1. The first is that the number of death sentences also increased significantly from 2004 onwards. • 2. A second reason for the dramatic increase in the number of executions has been to manage the (inaccurate) perception that heinous crime is on the increase. • Sometimes the government does something symbolic to reassure the public that everything under control. • Timing is important, and the execution of the notorious child murderer Tsutomu Miyazaki, just nine days after Tomohiro Kato went on the rampage in Akihabara, killing seven people, is a good example of this. • The execution of Miyazaki so soon after the Akihabara incident was designed to send out a reassuring message to the Japanese people that ‘justice would be done’, and that the full sentence would be carried out in Kato’s case. (Kato was indeed sentenced to death, on Thursday March 24th, 2011). • 3. The third factor is the identity of the Minister of Justice. This is because within the Japanese system the Minister of Justice must sign the death warrant, and therefore the attitude of the current Minister can significantly affect the number and rate of executions.

22. Overview • It could be argued that there has been a significant reduction in the number of executions, that the number of executions will remain comparatively low in the future, and that, therefore, the EU’s human rights diplomacy in Japan has been a success. • Equally, it remains highly unlikely that Japan will abolish the death penalty in the near future. It is also unlikely that there will be a moratorium, official or otherwise. • Political circumstances within Japan make it unlikely in the near future that any party would consider changing a policy that is said to have widespread public support. • The political costs of abolition of the death penalty in the current unstable political climate are too high, and the prospects for a cross-party consensus not strong. • The DPJ has recently executed 7 prisoners, sparking fears of a new wave of executions. • If an LDP government is elected, there is also the possibility that the number of executions will rise sharply again.

23. The UN Human Rights Committee • The UN Human Rights Committee is the monitoring committee for the International Covenant on Civil and Political Rights. • Japan’s Fifth Periodic Report was considered during the 94th session of the Human Rights Committee, in October 2008. • In the following slides I look in some detail at the criticisms that were made of Japan’s record in the Concluding Observations of the Human Rights Committee. • I have focused on the sections of the Concluding Observations that focus on the death penalty and the issue of due process in Japan’s criminal justice system. • The Concluding Observations document is a highly respected source of information on the human rights situation in Japan. • For each article of the Concluding Observations, subjects of concern and recommendations are listed, which provide even more detailed criticism of the death penalty than the EU’s minimum standards.

24. Article 16 - recommendations • Regardless of opinion polls, Japan should consider abolishing the death penalty. • Japan should inform the public about the desirability of abolition. • The death penalty should be strictly limited to the most serious crimes. • Japan should adopt a more humane approach with regard to the treatment of death row inmates. • Persons at an advanced age or with mental disabilities should not be executed. • Japan should also ensure that inmates on death row and their families are given reasonable advance notice of the scheduled date and time of execution, to reduce the psychological suffering caused by the lack of opportunity to prepare themselves for this event. • The possibility of pardon and a more limited sentence should be genuinely available to those sentenced to death.

25. Article 17 - recommendations • Japan should introduce a compulsory system of review in capital cases. • When a case is under review, the death penalty should be suspended until the review process has been completed. • Limits should be placed on the number of requests for pardon, in order to prevent abuse of the suspension. • Japan should also ensure the strict confidentiality of all meetings between death row inmates and their lawyers concerning retrial.

26. Article 18 – subjects of concern • The Human Rights Committee is disapproves of the substitute detention system (DaiyoKangoku), under which suspects can be: • detained in police detention facilities for a period up to 23 days to facilitate investigations; • without the possibility of bail; • with limited access to a lawyer, especially during the first 72 hours of arrest.

27. Article 19 – subjects of concern • There are insufficient limitations on the length of interrogations of suspects police regulations; • Lawyers are excluded from interrogations on the assumption that they would prevent interrogators from persuading the suspect to disclose the truth; • Electronic recording methods are used selectively during interrogations, often only to record the confession by the suspect. • There is an extremely high conviction rate based primarily on confessions. • This is even more of a problem in cases where convictions involve death sentences.

28. Article 19 - recommendations • Japan should: • adopt legislation setting strict time limits for the interrogation of suspects; • ensure the systematic use of video recording devices during the entire duration of interrogations; • guarantee the right of all suspects to have a lawyer present during interrogations, with a view to preventing false confessions. • Japan should also: • acknowledge that the role of the police during criminal investigations is to collect evidence for the trial rather than establishing the truth; • ensure that silence by suspects is not considered to be evidence of guilt; • encourage courts to rely on modern scientific evidence rather than on confessions made during police interrogations.