Transcript EU Centres Meeting

Human rights, transformative power,
EU-Japan relations
Paul Bacon
Waseda University
Deputy Director, EUIJ Waseda
Some key questions
• Is it appropriate for the EU to develop an Asia strategy?
• Is Asia too big and diverse to be covered by a single strategy?
• Should EU constitutive practices and values such as democracy, human
rights and opposition to the death penalty be included?
• Yesterday there were marginal references to this issue, and mixed
messages when the broad issue did come up.
• References to the promotion of EU values, R2P and the political content of
partnership agreements on one hand.
• Strong focus on economics, and a warning not to be naïve on the other.
• What would the relative priority of economic and political considerations
be in an EU Asia strategy?
• More specifically, what is the most productive way to promote human
rights in Japan?
Overview 1
• The EU tries to use transformative power, where possible, to
promote democracy, human rights and the abolition of the death
penalty around the world.
• The EU Delegation in Japan has also dedicated much attention and
some resources to human rights diplomacy in Japan.
• The EU has achieved some success and momentum in raising
awareness of the death penalty, and promoting the abolitionist
case.
• Whilst the number of executions has declined this year, however, it
is simply too soon to say what the medium-term trend is.
• The short-term decline has occurred for a number of reasons,
including the fact that the DPJ has been in power, the introduction
of a new jury system, and, indeed, increased pressure from the
international community.
Overview 2
• It could be argued that there has been a significant reduction in the
number of executions, that the number of executions will remain 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.
• Circumstances within Japan make it unlikely in the near future that any
party would countenance moving against a policy that is said to have
widespread public support.
• The political costs of abolition in the current social and political climate
are prohibitively high, and the prospects for a cross-party consensus not
strong.
• It could be argued that excessive resources have been allocated to
attempting to persuade Japan to place an unofficial moratorium on
executions.
Overview 3
• It could also be argued, therefore, that the EU’s human rights diplomacy
has not achieved its desired objective, and that, accordingly, the EU’s
transformative power is weak in the Japanese context.
• Although the author supports the abolition of the death penalty, it is
important to note that there is a reasonable case that can be made in
defence of this punishment.
• There are, however, other human rights problems in Japan which are
arguably at least as important as the death penalty, and for which there
are no reasonable justifications.
• The presentation cites the Concluding Observations of the UN Human
Rights Committee on Japan’s Fifth Periodic Report under the International
Covenant on Civil and Political Rights to support this claim.
• For each article of the Concluding Observations, subjects of concern and
recommendations are listed.
• I have produced a composite list of recommendations, based on the UN
report, the EU Guidelines for the Death Penalty, and the guidelines on the
death penalty from the European Instrument for Democracy and Human
Rights.
Overview 4
• This UN document has identified problems that exist with regard to due
process in the Japanese criminal justice system, and addresses issues such
as the length of time spent in custody, the recording of interviews, and
access to legal counsel for suspects throughout the interview process.
• These issues are not as high profile and as potentially politically costly to
any incumbent party, or to any possible cross-party consensus.
• Movement on these issues, although also not easy, is therefore less
difficult than movement on the issue of the death penalty.
• The criminal justice process should therefore also be a principal target of
the EU’s human rights diplomacy in Japan.
• Although the issues of the death penalty and due process are often
conflated and clearly overlap, they are also separable.
• The EU should therefore consider complementary or alternative ways to
effect conditionality and gain transformative power.
Overview 5
5 possible types of conditionality
• 1. Integrate death penalty and due process issues. Suggest incremental
measures relating to the death penalty, culminating in abolition. Start with
less ambitious goals, and create a process. (The salami approach)
• 2. Separate death penalty and due process issues. Create the possibility of
trade-offs between measures relating to the death penalty, and measures
relating to due process.
• 3. Integrate death penalty and due process issues. Create the possibility of
trade-offs between aggregated human rights issues and other issues, such
as trade, in the context of negotiation of a new action plan, or other major
agreement.
• 4. Separate death penalty and due process issues. Create the possibility of
trade-offs between death penalty issues and other issues, such as trade, in
the context of negotiation of a new action plan, or other major agreement.
• 5. Separate death penalty and due process issues. Create the possibility of
trade-offs between due process issues and other issues, such as trade, in
the context of negotiation of a new action plan, or other major agreement.
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.
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.
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.
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 107 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 have declined again for the time being,
but it is not easy to predict what will happen over the next couple
of years.
Public opinion in Japan
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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.
The Chiba 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.
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During her tenure Chiba had expressed her desire to initiate discussion on the
issue of the death penalty, and had demonstrated a cautious stance.
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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.
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It is still not clear exactly why Chiba took the decision to authorize the executions.
New Initiatives?
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At the press conference to announce the executions Chiba stated that she would establish a
panel at the Ministry of Justice to study the death penalty, and would also allow the news
media to visit the execution chamber. (This gesture was also criticized, in that it was only
extended to members of the ‘kisha’ club).
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Because of the pressure Chiba had been placed under by ministry officials, she announced
the establishment of the panel only after the executions “as a responsibility of the Minister”.
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The panel has been criticized for a number of reasons:
– It meets privately, and not for open discussions, as ex-Minister Chiba had suggested.
– Panel membership has been restricted to senior officials at the Ministry of Justice.
– Finally, the panel agreed to only discuss only a limited number of issues.
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The Democratic Party of Japan (DPJ) declared that it would review the death penalty and
consider a moratorium during the 2009 election campaign, but nothing has been put into
action.
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The DPJ also announced its intention to establish a party working group on the death penalty,
but the details of that working group have yet to be determined.
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.
Saiban-in system
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The new system faces many challenges.
– According to surveys conducted by a sociologist, Hiroshi Fukurai, the prospect of jury service
intimidates many Japanese.
– 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.
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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 too pass judgment on this question. However, it is necessary to
note two recent ‘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.
Japan’s official position on the DP
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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.
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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.
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The EU and the death penalty
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The EU considers the death penalty to be a cruel and inhuman punishment, which represents an
unacceptable denial of human dignity and integrity.
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In its efforts against the death penalty, the EU is actively supported by states from all regions of the
world.
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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 and other measures regarding individual cases.
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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."
Ashton statement on recent
executions in Japan
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I deeply regret the execution by hanging of Hidenori Ogata and Kazuo Shinozawa
on 28 July 2010, and the fact that this marks the resumption of executions in Japan
after one year during which none took place. The European Union is opposed to the
use of capital punishment in all cases and under all circumstances and has
consistently called for its universal abolition. The EU believes that the death
penalty is cruel and inhuman and that its abolition is essential to protect human
dignity.
•
Although I deeply regret these executions, I welcome the latest efforts by the
Minister of Justice to foster public debate in Japan about the death penalty and her
decision to set up a panel to study the issue.
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Japan and the EU are close partners on a wide range of human rights concerns
around the world. The EU has on a number of occasions called on the Japanese
authorities for a moratorium on the application of the death penalty, pending its
complete legal abolition. This would bring Japan into line with the worldwide trend
away from the death penalty. More than two-thirds of countries around the world
have formally abolished or ceased to apply the death penalty, as called for by the
UN General Assembly.
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).
The EU, the UN and the DP
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The EU also acts against the death penalty in multilateral fora, such as the United
Nations.
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A culmination of this effort was the resolutions on the moratorium on the use of
the death penalty, adopted by the United Nations General Assembly on 18
December 2007 and 18 December 2008.
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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).
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The number of countries supporting the moratorium has increased each time the
vote has been held.
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The number of cosponsors of the Resolution also increased, 90 in total, three
doing so for the first time: Cambodia, Russia and Madagascar.
The EU Delegation in Tokyo (And EUIJ Waseda)
• It has been made clear to the EUIJs that both human rights generally and
the death penalty specifically have been prioritized by the EU Delegation.
• EUIJ Waseda has co-hosted several high profile outreach events, in
partnership with the EU Delegation and other 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 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.
The UN Human Rights Committee
• The UN Human Rights Committee is the monitoring committee for the
International Covenant on Civil and Political Rights.
• State parties to the Covenant are required to submit initial and periodic
reports to the committee.
• 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.
• 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.
Article 16 – subjects of concern
• the Committee reiterates its concern that the number of crimes
punishable by the death penalty has still not been reduced;
• and that the number of executions has steadily increased in recent
years.
• It is also concerned that death row inmates are kept in solitary
confinement, often for protracted periods;
• are executed without prior notice before the day of execution;
• and, in some cases, at an advanced age or despite the fact that they
have mental disabilities.
• The non-use of the power of pardon, commutation or reprieve, as
well as the absence of transparency concerning procedures for
seeking benefit for such relief, is also a matter of concern. (arts. 6, 7
and 10)
Article 16 - recommendations
• Regardless of opinion polls, the State party should favourably consider
abolishing the death penalty;
• and inform the public, as necessary, about the desirability of abolition.
• In the meantime, the death penalty should be strictly limited to the most
serious crimes, in accordance with article 6, paragraph 2, of the Covenant.
• Consideration should be given by the State party to adopting a more
humane approach with regard to the treatment of death row inmates;
• and the execution of persons at an advanced age or with mental
disabilities.
• The State party should also ensure that inmates on death row and their
families are given reasonable advance notice of the scheduled date and
time of the execution, with a view to reducing the psychological suffering
caused by the lack of opportunity to prepare themselves for this event.
• The power of pardon, commutation and reprieve should be genuinely
available to those sentenced to death.
Article 17 – subjects of concern
• The Committee notes with concern that an
increasing number of defendants are convicted
and sentenced to death without exercising their
right of appeal;
• that meetings of death row inmates with their
lawyer in charge of requesting a retrial are
attended and monitored by prison officials until
the court has decided to open the retrial;
• and that requests for retrial or pardon do not
have the effect of staying the execution of a
death sentence. (arts. 6 and 14)
Article 17 - recommendations
• The State party should introduce a mandatory
system of review in capital cases;
• and ensure the suspensive effect of requests for
retrial or pardon in such cases.
• Limits may be placed on the number of requests
for pardon in order to prevent abuse of the
suspension.
• It should also ensure the strict confidentiality of
all meetings between death row inmates and
their lawyers concerning retrial.
Article 18 – subjects of concern
• The police functions of investigation and detention are formally
separated under the Act on Penal Detention Facilities and
Treatment of Inmates and Detainees.
• However, the Committee is concerned about aspects of the
substitute detention system (Daiyo Kangoku), 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;
– and with limited access to a lawyer especially during the first 72 hours
of arrest.
• This increases the risk of prolonged interrogations and abusive
interrogation methods with the aim of obtaining a confession. (arts.
7, 9, 10 and 14)
Article 18 - recommendations
• The State party should abolish the substitute detention
system;
• or ensure that it is fully compliant with all guarantees
contained in article 14 of the Covenant.
• It should ensure that all suspects are guaranteed:
– the right of confidential access to a lawyer;
– including during the interrogation process;
– and to legal aid from the moment of arrest and
irrespective of the nature of their alleged crime;
– and to all police records related to their case;
– as well as to medical treatment.
• It should also introduce a pre-indictment bail system.
Article 19 – subjects of concern
• The Committee notes with concern the insufficient limitations on
the duration of interrogations of suspects contained in internal
police regulations;
• and the exclusion of counsel from interrogations on the assumption
that such presence would diminish the function of the interrogation
to persuade the suspect to disclose the truth;
• and the sporadic and selective use of electronic surveillance
methods during interrogations, frequently limited to recording the
confession by the suspect.
• It also reiterates its concern about the extremely high conviction
rate based primarily on confessions.
• This concern is aggravated in respect of such convictions that
involve death sentences. (arts. 7, 9 and 14)
Article 19 - recommendations
• The State party should adopt legislation prescribing strict time
limits for the interrogation of suspects and sanctions for noncompliance;
• ensure the systematic use of video recording devices during the
entire duration of interrogations;
• and guarantee the right of all suspects to have counsel present
during interrogations, with a view to preventing false confessions
and ensuring the rights of suspects under article 14 of the
Covenant.
• It 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 inculpatory;
• and encourage courts to rely on modern scientific evidence rather
than on confessions made during police interrogations.
Article 20 – subjects of concern
• The Committee is concerned that the Penal Institution
Visiting Committees, which review complaints that have
been dismissed by the Minister of Justice;
• and the Prefectural Public Safety Commissions responsible
for reviewing complaints, petitions for review and reports
of cases submitted by detainees;
• lack the independence, resources and authority required
for external prison or detention monitoring and complaint
mechanisms to be effective.
• It notes the absence of any verdicts of guilt or disciplinary
sanctions against detention officers for crimes of assault or
cruelty during the period from 2005 to 2007. (arts. 7 and
10)
Article 20 - recommendations
• The State party should ensure:
• (a) that the Penal Institution and Detention Facilities Visiting Committees
are adequately equipped and have full access to all relevant information in
order to effectively discharge their mandate and that their members are
not appointed by the management of penal institutions and police
detention facilities;
• (b) that the Review and Investigation Panel for Complaints from Inmates of
Penal Institutions is adequately staffed and that its opinions are binding on
the Ministry of Justice; and
• (c) that the competence for reviewing complaints submitted by detainees
is transferred from the Prefectural Public Safety Commissions to an
independent body comprised of external experts.
• It should include in its next periodic report statistical data on the number
and nature of complaints received from prisoners and detainees, the
sentences or disciplinary measures imposed on perpetrators, and any
compensation provided to victims.
Article 21 – subjects of concern
• The Committee is concerned that death row inmates are
confined to single rooms during day and night, purportedly
to ensure their mental and emotional stability;
• and that lifetime prisoners are sometimes also placed in
solitary confinement for protracted periods of time.
• It is also concerned about reports that inmates may be
confined to protection cells without prior medical
examination for a period of 72 hours initially which is
indefinitely renewable;
• and that a certain category of prisoners are placed in
separate “accommodating blocks” without an opportunity
to appeal against this measure. (arts. 7 and 10)
Article 21 - recommendations
• The State party should relax the rule under which
inmates on death row are placed in solitary
confinement;
• ensure that solitary confinement remains an
exceptional measure of limited duration;
• introduce a maximum time limit;
• require the prior physical and mental examination of
an inmate for confinement in protection cells;
• and discontinue the practice of segregating certain
inmates in “accommodating blocks” without clearly
defined criteria or possibilities of appeal.