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  • FT: UN Committee against Torture castigates Japan’s judiciary

    Posted by Dr. ARUDOU, Debito on May 29th, 2007

    Hello Blog. The Financial Times (London) reports that more bodies within the UN are joining the fray and pointing out Japan as not only a slacker in the human rights arenas, but also as sorely lacking in terms of checks and balances regarding the criminal procedure and the judiciary.

    We’ve been saying things like this for years, glad to see it catching fire.

    Pertinent UN Press Releases on this subject dated May 2007 are in the Comments section below the article (to save space), so do click on “Comments” at the very bottom if you are interested. Related article on how this pressure is starting to affect things (such as recording interrogations) blogged here.

    The entire 11-page report being referred to in the FT article below is downloadable in MS Word format at
    UNComttTortureMay2007.doc

    Arudou Debito in Sapporo

    =======================================

    UN body attacks Japan’s justice system
    By David Turner in Tokyo
    Financial Times, May 23 2007

    http://www.ft.com/cms/s/3dfc6122-08ca-11dc-b11e-000b5df10621.html
    Courtesy of Ludwig Kanzler and Olaf Karthaus

    A United Nations committee has castigated Japan’s criminal justice and prison system, listing a wide range of problems including the lack of an independent judiciary, an extremely low rate of acquittal and human rights abuses among detainees. The UN Committee Against Torture takes a broad interpretation of its brief, criticising the state’s physical treatment of citizens and the fairness of the justice system.

    The report comes at an embarrassing time for Japan. The government has been trying to restore the country’s status as a nation with the moral and political authority of a world power, in addition to an economic powerhouse. Shinzo Abe has tried to accelerate this process since he became prime minister since last year, but with mixed results.

    In an 11-page report completed last week, scarcely any part of the system escapes criticism. For example, it raises suspicions over a “disproportionately high number of convictions over acquittals”. There were only 63 acquittals in the year to March 2006, compared with 77,297 convictions, among criminal cases that had reached court, according to Japan’s Supreme Court.

    In a version of the report released in Tokyo on Monday and described as “advanced unedited” [sic], the committee links the high conviction rate to the state’s emphasis on securing confessions before trial.

    It cites fears about “the lack of means to verify the proper conduct of detainees while in police custody”, in particular “the absence of strict time limits for the duration of interrogations and the absence of mandatory presence of defence counsel”.

    Parts of the law relating to inmates on death row “could amount to torture”, it says, criticising the “psychological strain imposed upon inmates and families” by the fact that “prisoners are notified of their execution only hours before it is due to take place”.

    The committee also “is concerned about the insufficient level of independence of the judiciary”.

    It attacks Japan’s dismissal of cases filed by “comfort women”, who were forced to work in military-run brothels during the war, on the grounds that the cases have passed the country’s statute of limitations.

    The report, written after an 18-day session of the committee in Geneva, asks the Japanese government to consider a slew of measures, including “an immediate moratorium on executions”.

    The committee issued its attack after receiving a report from the Japanese government on its efforts to prevent human rights abuses. All UN member states must submit such reports regularly, although the UN Committee scolds Japan for filing its report “over five years late”.

    The committee’s findings are in line with complaints by human rights lawyers. But the report has attracted controversy within the UN.

    Keiichi Aizawa, director of the Japan-based United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders, told the Financial Times: “The treatment of offenders in Japan is fair.”

    Japan’s Justice Ministry declined to comment on the report.
    ENDS
    ============================

    REFERENCED UN COMMITTEE AGAINST TORTURE REPORT ON JAPAN MAY 2007 AVAILABLE IN FULL IN MS WORD FORMAT:
    UNComttTortureMay2007.doc

    Click on “Comments” below to see UN Press Releases.

    3 Responses to “FT: UN Committee against Torture castigates Japan’s judiciary”

    1. debito Says:

      COMMITTEE AGAINST TORTURE HEARS RESPONSE OF JAPAN
      10 May 2007, UNITED NATIONS PRESS RELEASE
      http://www.unog.ch/80256EDD006B9C2E/(httpNewsByYear_en)/B09D683BCB412A54C12572D700373660?OpenDocument

      The Committee against Torture this afternoon heard the response of Japan to questions raised by Committee Experts on the initial report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

      
Responding to a series of questions raised by the Committee members on Wednesday, 9 May, the delegation, which was led by Tetsuya Kimura, Director of the Human Rights and Humanitarian Affairs Division in the Ministry of Foreign Affairs of Japan, said that interrogation and other investigation activities were permitted in accordance within a regular schedule for meals and bedtime. Moreover, interrogations were not to be carried out at night, unless there were pressing reasons to do so. Regarding the so-called “secret handbook of interrogation” methods, that was actually the memoir of an experienced investigator setting out his personal experience, advice and opinions about his job. It was not an official manual in any way.
      

On the issue of videotaping, the delegation stressed that interrogation was indispensable in Japan to come to the truth of the case. Videotaping could bring about many problems, because it became more difficult to take up private issues concerned and could cause a suspect to become more reluctant to express himself. There were strong pressures on the police to produce results, and videotaping the interrogation threatened that ability. Nevertheless, Japan was very seriously engaged in reviewing the possibility of using audio or video recordings during interrogations.
      

The Committee will submit its conclusions and recommendations on the report of Japan towards the end of the session on Friday, 18 May 2007.
      

As one of the 144 States parties to the Convention against Torture, Japan is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
      

When the Committee next reconvenes in public, at 3 p.m. on Friday, 11 May, it will hear the answers of Poland to the questions posed by Experts on Thursday, 10 May.

      
Response of Japan

      
Responding to a series of questions raised by Committee Experts on Wednesday, 9 May, the delegation of Japan, addressing concerns of the scope of what constituted a public official or a person acting in a public capacity in terms of provisions against torture, confirmed that, among others, those terms included prison officials, immigration officials and self-defence forces.
      

Complaints of torture against police officers were pursued through an administrative procedure. That procedure provided for the detention of suspects and all the other procedural guarantees and measures in a criminal procedure. The Public Prosecutor decided as to whether an indictment should be brought in such a case.
      

On the issue of the two extradition requests from Peru for ex-President Fujimori, Japan had felt that the indictment had not presented sufficient prima facie evidence to extradite Mr. Fujimori, the delegation said. Then, in 2005, Mr. Fujimori had left the country, thus pre-empting Japan’s taking a final decision on his extradition.
      

Regarding accession to the Optional Protocol to the Convention, the delegation noted that the Government was currently reviewing the possibility of setting up the national monitoring mechanism required by the Protocol, as well as the need for any revisions to Japanese legislation to conform with the Protocol.
      

With respect to the situation of the “comfort women”, the delegation first noted that Japan had acceded to the Convention against Torture in 1999. The Convention’s provisions were not applicable retroactively and therefore did not apply to the actions in question. Moreover, Japan had addressed in good faith the provisions for reparations with regard to the Second World War, under the San Francisco agreement, among others, and had fulfilled its legal obligations in that regard and settled all outstanding issues, including that of the comfort women. Following a study on the situation of the comfort women that had been undertaken several years ago, the Japanese Government had issued a statement expressing the Government’s sincere apologies and remorse, and those apologies had been offered several times. The policy of the Japanese Government in that regard had not changed. Moreover, financial compensation had been paid to some former comfort women and the Government had implemented medical and other support projects to address their condition. Furthermore, the Japanese Prime Minister himself had directly sent his apologies to the comfort women.
      

When a case was transferred to the Prosecutor by the judicial police, if the Prosecutor wished to keep the suspect in detention, he had to apply to a judge for a detention order. The maximum detention period was 10 days, which could be extended a further 10 days at the Public Prosecutor’s request. Citing statistics for 2005, the delegation said that the arrest rate had been 33.2 per cent, 29.8 per cent of whom were detained. Of the detainees, 43.9 per cent were detained for 10 days or less.
      

Suspects in custody before indictment could have access to defence counsel, and defence counsel could be appointed by the court under certain circumstances.
      

In terms of the “substitute prisons” or detention in police detention facilities, that practice was used because it was known that detention regimes in police cells prevented the violation of the detainees’ rights, the delegation affirmed. Also, where there was a risk of destruction of evidence or tampering with the investigation of the case, such a detention could be ordered. In addition, such detentions were granted where it was considered that the investigation would not take a long time, and it was therefore not desirable to transfer the suspect to a prison cell further away.
      

Interrogation and other investigation activities were permitted in accordance within a regular schedule for meals and bedtime, the delegation said. Moreover, interrogations were not to be carried out at night, unless there were pressing reasons to do so. Regarding the so-called “secret handbook of interrogation”, that was actually the memoir of an experienced investigator setting out his personal experience, advice and opinions about his job. It was not an official manual in any way.
      

The delegation underscored that both the Constitution and the Code of Criminal Procedure had preventive provisions to ensure that forced confessions were prohibited. In addition, the burden of proof was on the prosecutor concerning whether or not the confession was obtained voluntarily or involuntarily. To prevent excessive reliance on confessions, article 8 of the Constitution provided that no one could be convicted in cases where his own confession, whether made in open court or not, was the only evidence against him.
      

On the issue of videotaping, the delegation stressed that interrogation was indispensable in Japan to come to the truth of the case. Videotaping could bring about many problems, because it became more difficult to take up private issues concerned and could cause a suspect to become more reluctant to express himself. There were strong pressures on the police to produce results, and videotaping the interrogation threatened that ability. Nevertheless, Japan was very seriously engaged in reviewing the possibility of using audio or video recordings during interrogations.
      

Regarding the Herald Tribune article, which discussed a case of alleged vote buying, the delegation recalled that for 13 indictments, 12 defendants had been found not guilty. (One of the suspects had died during the course of the investigation.) There had been no fabrication of facts as asserted in the article, or interrogation under pressure. The court decision had been based on evidence produced. It was found that the six confessions had been done on a voluntary basis. Ultimately, the court in its ruling said that there were alibis for the defendants.
      

In the Saga Prefecture case, in which three women had been murdered, it was true that there had been long hours of investigation, and that had been pointed out by the court in its decision. Depending on the gravity of the case, it was difficult to reduce the hours of investigation, the delegation stressed. However, the sex, age and heath of the suspect had to be taken into consideration in conducting police interrogations.
      

In the case of the man who had been falsely imprisoned for two years and nine months in the Yokohama Prefecture, that was indeed regrettable. However, the delegation said it was true that the suspect had freely confessed before the trial was brought.
      

The high rate of conviction in Japan was not owing to forced confessions, the delegation countered. There were strict screening rules for bringing indictments that meant that cases were not brought unless the case was clear.
      

Gags were only used in police detention facilities, where protection cells were not available, when detainees did not follow officials’ directions to stop shouting, and was only used by the order of the detention manager, and taking the health conditions of the detainee into consideration. Arresting ropes of over 3 millimetres in diameter were used in cases where there was a risk that the suspect would escape, or cause injury to property or to himself, the delegation said.
      

Single cell treatment was used for those inmates who refused to work or who had problems socializing with other inmates. The delegation said that it was possible to keep an inmate in a single cell for a long time period, but the authorities tried to encourage inmates to leave that regime and transferred prisoners to other accommodations as soon as possible.
      

Regarding sexual violence in prisons, the delegation said any cases that arose were addressed as quickly as possible, and cited some examples. In the Toyohashi branch of Nagoya Prison, in September 2003, a prison official had been found guilty of having conducted illicit sexual intercourse with a prisoner. Following an administrative review, the official had been dismissed. Moreover, a criminal prosecution brought had ended in the official’s conviction to a prison sentence of three years. In September 2004, a Fukuoka prison official who had forced a female prisoner to strip naked twice was dismissed following an administrative review. However, as the victim had not wanted to press a criminal action, no criminal prosecution had been undertaken.
      

In terms of oversight for the complaint procedure for prisoners, there was a special board that reviewed the complaints. The secretariat of the special board was within the Ministry of Justice, but to guarantee separation from the Corrections Bureau, it was placed in the Minister’s Secretariat, the delegation said.
      

Regarding the composition of the mobile teams of citizens that monitored conditions in detention centres, the delegation said that the Correctional Administrative Reform Council had recommended that the teams consist of citizens from the region, including lawyers, doctors or members of local government. Recommendations from public and private organizations were canvassed, including local bar and medical organizations. Members were to be of high moral standing.
      

Stays in protection rooms could be ordered for up to 72 hours. However, if necessary, the warden of the prison could renew that order for a further 48 hours if he deemed it appropriate. There was no limit for how many times the stay could be renewed. However, a doctor had to review the medical status of the detainee for further renewals. The delegation had no figures on how many prisoners were kept in such rooms, or for how long, nor had any studies been undertaken on the effectiveness of placing prisoners in protection rooms.
      

On the death penalty, and the practice of hanging in Japan, the delegation said there was no consensus that such punishment was inhumane. Regarding prisoners on death row, and long confinements in solitary cells, it was the practice in Japan to confine prisoners sentenced to the death penalty in solitary cells. It was true that those confinements were often long, for procedural reasons.
      

Prisoners on death row were informed that their sentence would be carried out on the day of their execution. If they were informed earlier, it could destabilize the prisoner, the delegation said.
      

Turning to refugee issues, the delegation said refugees who could not be immediately deported were kept in detention facilities. However, if it was found that such a detention would be unduly long, provisional release was possible.
      

With regard to immigration centres, complaints could be lodged with the director of the centre, and it was possible to appeal that decision by a complaint before the Minister of Justice. Since that procedure had been instituted, there had been 167 complaints, 63 cases going all the way to the Minister of Justice. It was found that there was a reason for complaint in one case, however, it did not relate to violence committed by officials.
      

Turning to conditions in psychiatric hospitals, the delegation noted that mental hospitals had to make periodic reports to the Ministry of Justice on the condition of patients. Those working in private mental hospitals were not public officials, but in case of false committals, the hospitals had to comply with Ministry of Justice standards, thus ensuring appropriate consideration for the human rights of patients.
      

The delegation confirmed that human trafficking was specifically criminalized in Japan’s penal code.
      

Regarding dismissal of judges, in Japan judges had a very strong position in order to ensure the independence of the judiciary. Judges could only be dismissed following a public impeachment or where it could be demonstrated they were mentally or physically unfit to carry out their duties. A Supreme Court judge could only be deposed by public referendum.
      

Questions by Committee Experts

      
FERNANDO MARIÑO MENENDEZ, the Committee Expert serving as Rapporteur for the report of Japan, wished to know the Government’s opinion as to whether the Convention’s prohibition against torture was binding in times of war.
      

In Japanese law prolonged detention might be an indication that a confession given after such detention would not be accepted. However, the limit for detentions was 23 days and, given the possibility of limitless extensions of the detention, it appeared that there was no upper time limit for detention. Mr. Mariño therefore wondered what a prolonged detention was considered to be in Japan. Such a procedure seemed to indicate a disregard for the presumption of innocence in the Japanese legal system.
      

In the case of the death penalty, Mr. Mariño said that he had understood that death row prisoners were not given legal assistance, but asked for further clarification as the delegation had provided information to the contrary.
      

Mr. Mariño was further concerned about the independence of the mechanism to investigate conditions in penitentiaries. Similarly, he was concerned about the “mediators” appointed to assist asylum-seekers in lodging their applications. How was the independence of such mediators guaranteed? And who appointed them?
      

ALEXANDER KOVALEV, the Committee Expert serving as Co-Rapporteur for the report of Japan, could not understand the delegation’s explanation as to why videotaping of interrogations could not be undertaken. They had noted that such recordings could be leaked; however, that was equally true of written statements.
      

On asylum requests, Mr. Kovalev was concerned that the present wording of the relevant Japanese legislation increased the risk that an asylum-seeker at risk of being tortured in his home country, but who had most recently travelled to Japan from a third country, would actually be more and not less likely to be returned to his country of origin where he faced the threat of torture.

      
Other experts asked questions on a number of topics, including the decision-making process for discharging mental patients; and why, if the Ministry of Justice had abolished gags for prisoners, it continued to be a valid practice for prisoners.
      

An Expert, noting the delegation’s explanations with regard to the women who had been forced into sexual slavery by the Japanese Army during the Second World War, including that the provisions of the Convention were not applicable retroactively, noted that it was now commonly recognized that victims of sexual trauma experienced a continuing trauma and violation of their rights based on events in the past. In that connection, the denial by the Japanese Government of its responsibility in this regard constituted a retraumatization for those women.
      

Response by Delegation
      

Responding to additional questions raised, the delegation of Japan said there was a system to register complaints of racial discrimination within the national police.
      

It was not true that the Ministry of Justice disregarded the presumption of innocence, the delegation stressed. That was why, before a trial was undertaken there were two stages during which a suspect was fully screened while in detention. Japan put a great deal of importance on the presumption of innocence and on ensuring that it was preserved.
      

On the counsellor system for asylum-seekers, the delegation said that there was a booklet on that system which had been devised for information purposes, and it included information on the qualifications of such counsellors. A copy would be provided to the Committee if it wished.
      

The delegation dispelled fears that Japanese asylum legislation made it more likely that an asylum-seeker would be returned to their home country, even if there was a likelihood that he would be tortured there. The immigration law prohibited return of asylum-seekers to any country where they were at risk of being tortured.

      
Death row inmates had State appointed council up through their appeal to the Supreme Court. Following their final appeal, death row inmates still had access to a lawyer, it was just not a State appointed council, the delegation clarified.
      

For use of the information media; not an official record
      ENDS

    2. debito Says:

      COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF JAPAN
      9 May 2007 UNITED NATIONS PRESS RELEASE
      http://www.unog.ch/80256EDD006B9C2E/(httpNewsByYear_en)/DA97D0247DBCA04AC12572D60033CD16?OpenDocument

      The Committee against Torture this morning began its consideration of the initial report of Japan on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

      Introducing the report, Ichiro Fujisaki, Permanent Representative of Japan to the United Nations Office at Geneva, said that there should be zero tolerance for torture. There were three pillars that were key to that endeavour: first, a legal system. Japan’s Constitution absolutely forbade torture and the penal code supported that provision. If any act of torture was discovered, a thorough investigation was undertaken. Law enforcement officers also received appropriate training. Secondly, there was a need for civil participation. Japan believed that non-governmental organizations were valuable partners in the fight against torture, and a law had been passed last year to have civil society organizations inspect places of detention and report on conditions. The third pillar was international cooperation. Among other efforts, Japan was currently engaged in training law enforcement officers on the provisions of the Convention overseas.

      Continuing with the presentation of the report, Tetsuya Kimura, Director of the Human Rights and Humanitarian Affairs Division in the Ministry of Foreign Affairs of Japan, said the Act on Penal Institutions and the Treatment of Sentenced Inmates, which had entered into force in May 2006, clarified the rights and restrictions applicable to inmates and measures pertaining to the maintenance of institutional discipline, as well as requirements for disciplinary punishment and procedures for imposing them. In addition, the new Act stipulated the establishment of the Board of Visitors for Inspection of Penal Institutions, made up of private citizens who were to inspect the penal institutions and report their views on the management of the institutions to the prison wardens.

      Serving as Rapporteur for the report of Japan, Committee Expert Fernando Mariño Menendez asked for more information about the practice of detention in police cells, which apparently could last up to 23 days in Japan. Also of concern were reports that during such police detentions the detainees did not have access to lawyers and that interrogations were possible under circumstances that made the detainees vulnerable, and which built up psychological pressure on detainees that could lead to confessions.

      Alexander Kovalev, the Committee Expert serving as Co-Rapporteur for the report of Japan, was concerned that there was no system to record interrogations in Japan, and that they could be carried on for hours without stopping. Non-governmental organizations had provided the Committee with a secret handbook on interrogation, which said that officials should not leave the interrogation room until they had obtained a confession, even through to morning. Was the Government aware of this secret handbook?

      Among other things, several Experts expressed concern about the case of the “comfort women” forced into sexual slavery by the Japanese Army during the Second World War, as well as individuals who had been conscripted to forced labour. Those were war crimes. Experts said the Japanese Government should recognize its moral responsibility in those cases and ensure redress to the victims of those crimes, including compensation.

      Also representing the delegation were numerous other representatives from the Permanent Mission, as well as representatives of the National Police Agency of Japan; the Ministry of Justice; the Tokyo Regional Immigration Bureau; the Ministry of Foreign Affairs; the Ministry of Health, Labour and Welfare; and the Japan Coast Guard.

      The delegation will return to the Committee at 3 p.m. on Thursday, 10 May, to provide its responses to the questions raised today.

      Japan is among the 144 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

      When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of Ukraine to the questions posed by Experts on Tuesday, 8 May.

      Report of Japan

      Article 36 of the Constitution of Japan absolutely forbids the infliction of torture and cruel punishment by any public official. The initial report of Japan (CAT/C/JPN/1) notes that
      Articles 13 and 38 of the Constitution are also in line with the spirit of the Convention. Under these provisions of the Constitution, the Penal Code prescribes, inter alia, the crime of violence and cruelty by a special public official and its aggravated crime of causing death or injury. In Japan, it is ensured that all acts of torture, attempts to commit torture and acts by any person which constitute complicity or participation as defined in paragraph 1 of Article 1 of the Convention are offences under various laws, including the Penal Code. Regarding Article 3 of the Convention (which prohibits return or extradition where there are “substantial grounds” for believing the person so returned would be in danger of being subjected to torture), in order to determine whether the “substantial grounds” exist, the Immigration Bureau of the Ministry of Justice has been providing its officials with appropriate lectures to enhance their knowledge and ability at every possible opportunity such as training courses. During the period from 29 July 1999, when the Convention entered into force in Japan, to 31 March 2004, of the administrative lawsuits seeking revocation of written deportation orders, there were no rulings to revoke such an order by reason of violating the Convention.

      In addition to constant overcrowding, the Japanese correctional administration faces difficulties related to an increase in the number of elderly prisoners, foreign prisoners and prisoners who are difficult to deal with, and thus the environment for detention in Japan’s prisons is worsening in both quality and quantity. The Ministry of Justice has been endeavouring to improve prison administration. However, in response to the fact that officials of Nagoya Prison were prosecuted for causing death or injury by violence and cruelty by a special public official, the Ministry of Justice is taking further steps to improve prison administration. The main measures taken so far include improvement of human rights training programmes for the officials of penal institutions; the abolition of the use of leather handcuffs and the introduction of a new restraining device carefully designed to ensure the safety of inmates; and re-examination of the procedures for petition to the Minister of Justice by inmates. In addition, to examine reform of prison administration from a broad viewpoint, the Correctional Administration Reform Council consisting of private experts was established. The Council examines the actual conditions by interviewing non-governmental organizations, conducting surveys of prisoners and prison officials, and holding discussions. Based on the recommendations made by the Correctional Administration Reform Council in 2003, the Ministry of Justice set up the Committee for the Promotion of Correctional Administration Reform and makes every effort to carry out the reform. As the first step, measures have already been taken including review of the regulations for prison facilities, review of the specifications of protective cells, introduction of video taping of all cases of use of the protective cells, and regular publication of information related to the treatment of inmates. Furthermore, revision of the Prison Law (established in 1908), which is the most important part of reform of correctional administration, is now in progress.

      Presentation of Report

      ICHIRO FUJISAKI, Permanent Representative of Japan to the United Nations Office at Geneva, said that there should be zero tolerance for torture. There were three pillars that were key to that endeavour: first, a legal system. In that connection, Japan’s Constitution absolutely forbade torture and the penal code supported that provision. If any act of torture was discovered, a thorough investigation was undertaken. Law enforcement officers also received appropriate training. Secondly, there was a need for civil participation. Japan believed that non-governmental organizations were valuable partners in the fight against torture, and was glad to see so many of them present at the meeting today. Before presenting its report, the Government had listened to the advice of non-governmental organizations. In addition, a law had been passed last year to have civil society organizations inspect places of detention and report on conditions. The third pillar was international cooperation. In that regard, among other efforts, Japan was currently engaged in training law enforcement officers on the provisions of the Convention overseas.

      TETSUYA KIMURA, Director of the Human Rights and Humanitarian Affairs Division in the Ministry of Foreign Affairs of Japan, continuing with the presentation of the report, specified that Article 36 of the Constitution of Japan absolutely forbade the infliction of torture and cruel punishment by any public official. Under those provisions of the Constitution, the Penal Code proscribed, inter alia, the crime of violence and cruelty by a special public official and its aggravated crime of causing death or injury. For those crimes a fair trial was guaranteed, not only by normal criminal procedures, but also by the special criminal procedures provided for in Articles 262 to 269 of the Code of Criminal Procedure. In Japan it was ensured that all acts of torture, attempts to commit torture and acts by any person which constituted complicity or participation as defined in Article 1 of the Convention against Torture, were offences under the Penal Code, even if those acts did not fall under Article 195, setting out the crime of violence and cruelty by a special public official. Moreover, there was no domestic law that allowed anyone to invoke, as a justification of torture, exceptional circumstances such as a state of war, a threat of war, internal political instability or any other public emergency, and no domestic law stipulated that an order from a superior office or a public authority could be invoked as a justification of torture.

      As Japan was able to fulfil its obligations under the Convention within its existing domestic laws and regulations it had not been necessary to adopt new laws or change existing laws at the time of its accession to the Convention, Mr. Kimura said. Furthermore, Japan was carrying out comprehensive reform of the correctional administration and making further efforts to protect and promote human rights, including prevention of torture and other cruel, inhuman or degrading treatment or punishment.

      Regarding article 3 protections against deportation to a country where an individual was at risk of being tortured, Mr. Kimura said that according to the Immigration Control and Refugee Recognition Act, when it was judged that there were substantial grounds for believing that a person would be in danger of being subjected to torture in the country to which he was scheduled to be deported (among the schedule of countries to which it was permissible to deport him) he would be deported to one of the other countries.

      In terms of extradition, the Law on Extradition stipulated that, if the Minister of Justice deemed it inappropriate to surrender the fugitive, the fugitive would not be extradited. Cases where there were substantial grounds for believing that the fugitive would be in danger of being subjected to torture in the country requesting the extradition fell under the cases where the Minister of Justice deemed it inappropriate to surrender the fugitive, Mr. Kimura noted.

      Regarding education, training, rules and directions provided to public officials, Mr. Kimura said
      all police personnel received continuous education on the prohibition of torture and other cruel, inhuman or degrading treatment at various levels of the police academies and at their places of work, such as police stations. In particular, at prefectural police academies training was provided for public officials that were to be in charge of detention to acquire the knowledge and skills necessary for the proper management of detainees and prevention of accidents.

      Public prosecutors were appointed when they had studied the Constitution, had received human rights education, and demonstrated appropriate knowledge of human rights. Furthermore, they received on-the-job-training from their superiors, as well training courses on the Convention and other human rights conventions, Mr. Kimura added.

      Systematic and intensive training was given to officials of correctional institutions at the Training Institute for Correctional Personnel, including basic educational training (eight months), educational training to become a lower level senior official (three months), educational training to be an upper level senior official (six months) and special educational training in specific fields (up to three months). Medical assistants were given two years’ educational and practical training at the nurses’ training centre.

      Regarding the treatment of detainees in the detention facilities of the Immigration Bureau, Mr. Kimura said that education and awareness-raising activities to instil respect for human rights of detainees was provided at every possible opportunity, such as through training programmes for newly recruited immigration control officers, officials who had been employed for several years and officials in charge of the treatment of detainees (conducted annually). The Regulations for Treatment of Detainees provided for appropriate treatment of detainees, including the need for directors of detention centres to listen to the views of detainees concerning their treatment and patrolling immigration centres. Detainees could file complaints about their treatment with the director of his or her centre, and if the detainee was not satisfied with the action taken, he or she could file a further complaint with the Minister of Justice.

      Turning to regulations on interrogations, Mr. Kimura said rules on supervision and direction of criminal investigations by the police included the Rule of Criminal Investigation. With regard to the examination of suspects, the Constitution and the Code of Criminal Procedure and other laws provided that a suspect had to be informed of his right to remain silent. They also provided prohibitions against compulsion and torture and outlined procedures for preparation of written statements. The police supervised and instructed interrogators to observe those provisions. Supervisory systems for correctional institutions included inspection by the Ministry of Justice and inspections by the regional correction headquarters.

      Mr. Kimura observed that the human rights organs of the Ministry of Justice did not have the authority for compulsory investigation. However, by receiving a report from a person who alleged to have been subjected to torture, they started investigations and took appropriate relief measures, thereby giving relief to victims and preventing human rights infringement. In that connection, in the case of Nagoya Prison, where prison officials had been prosecuted for having abused prisoners and for killing or seriously injuring them, recommendations had been made to the warden of the prison to thoroughly educate all the prison officials to respect human rights and to establish an effective instruction and supervision system.

      Any person who alleged that he or she had been subjected to torture could file a complaint, seek a review by the Committee for Inquest of Prosecution if no prosecution was undertaken, and request a trial of the case on violence and cruelty by a special public official, Mr. Kimura said. Any person who was deprived of liberty without due process could request relief to either a high court or a district court in accordance with the Habeas Corpus Act.

      In terms of police detentions, when a detainee complained that he had been tortured the person in charge of the police cell had to inform the chief of police of that station, who was bound to immediately undertake an investigation and to inform the detainee of the result. For their part, inmates of correctional institutions who claimed they had been tortured could file petitions with an investigative organ by using the criminal complaint procedure, and were also entitled to file a civil or administrative lawsuit in that regard, Mr. Kimura noted.

      In terms of the so-called “substitute” prisons, Mr. Kimura said that in Japan there were approximately 1,300 police detention cells. Detainees in police detention cells included suspects arrested pursuant to the Code of Criminal Procedure, and pre-trial detainees held in custody on a warrant of detention issued by a judge. Arrested suspects, unless released, were brought before a judge upon a custody request made by the public prosecutor and the judge determined whether or not the suspect was to be taken into custody. The place of detention for suspects was set out in the Code of Criminal Procedure, which stipulated that police detention cells could be used as a substitute for a prison cell – hence the origin of the term “substitute” prisons.

      The death penalty, which was a punishment provided for in the Penal Code of Japan, fell under the lawful sanctions referred to in Article 1 of the Convention against Torture and was not held to constitute torture, Mr. Kimura observed. Furthermore, hanging, presently practiced in Japan in carrying out the death penalty, was not considered to be inhumanely cruel compared to other methods, and did not fall under cruel, inhuman or degrading punishment. The death penalty system was strictly administered in Japan, he added.

      Regarding use of restraining devices and custodial cells, Mr. Kimura said that where there was a risk of violence or suicide, or when an inmate did not follow the directions of officials to stop shouting or making unnecessary noise, or the inmate repeatedly contaminated his cell, the inmate could be housed in a protective cell. In addition, where there was a risk of escape, violence or suicide, restraint handcuffs could be used. Leather handcuffs had been abolished in October 2003 following the case of the Nagoya prison officials, as it was found that such handcuffs tightly squeezed the abdomen of the inmate. Since then, a new type of handcuff had been adopted which merely restrained the wrists.

      Turning to major developments since the report was drafted, Mr. Kimura said that the Act on Penal Institutions and the Treatment of Sentenced Inmates entered into force in May 2006 (later renamed the Act on Penal Detention Facilities and Treatment of Inmates Act). In terms of the rights and obligations of inmates, the new Act made clear that inmates were guaranteed the right to engage in religious acts, to read books and newspapers, and also stipulated restrictions. Measures pertaining to the maintenance of institutional discipline were clarified and requirements for disciplinary punishment and procedures for imposing them, such as prior notification and the granting of an opportunity for explanation, were stipulated. Further, the new Act articulated the principle of “individualized treatment” for inmates.

      In addition, Mr. Kimura said the new Act stipulated the establishment of the Board of Visitors for Inspection of Penal Institutions, made up of private citizens who were to inspect the penal institutions and report their views on the management of the institutions to the prison wardens. Moreover, the Minister of Justice was to compile the views that had been communicated by the Board to the wardens, as well as the measures taken by the wardens in response, and to publish a summary of that information each year.

      The new Act clearly provided for the principle of separation of investigation and detention, ensured that officers responsible for detention had to undergo training to cultivate a better understanding of the human rights of detainees, and provided that police officers supervising detention had to visit and carry out an audit of each detention facility not less than once a year, Mr. Kimura noted.

      Another important development had been the entry into force of the Law for Partial Amendment of the Immigration Control and Refugee Recognition Act on 16 May 2005. That law not only ensured the stable, legal status of persons who had applied for recognition of refugee status, but also increased equity and neutrality in the procedure for refugee recognition. Notably, it provided a refugee examination counsellor system in which a third party participated in the examination of objections to a grant of refugee status.

      Questions Raised by Committee Experts

      FERNANDO MARIÑO MENENDEZ, the Committee Expert serving as Rapporteur for the report of Japan, wondered if the Convention could be directly invoked in Japanese courts as a basis of a torture complaint, and if there were any such examples. In addition, he wondered if the Convention’s obligations could be suspended during times of armed conflict.

      Regarding the definition of torture, Mr. Mariño noted the provisions set out in the Japanese Constitution and in its Penal Code. He was concerned, however, that the language might not cover all acts of torture as set out in the Convention, in particular as there was no precise definition of such acts. In addition, who was considered to be a public official for the purposes of torture according to the Penal Code? Did that include staff in immigration detention centres and members of the military, or staff of psychiatric hospitals managed by private companies?

      The death penalty had not been completely eradicated from the international community, and it was allowed in Japanese law. In the Committee’s view, however, it should be prohibited. In that connection, Mr. Mariño wanted to know about the situation of prisoners on death row. He was concerned by information that there had been people kept in solitary confinement for years while awaiting the execution of their sentence, and that individuals on death row received no prior warning when their sentence was to be carried out. Also of concern was that there was no mandatory appeal against death sentences in Japan.

      It was often in deprivation of liberty situations that torture occurred, Mr. Mariño observed. For that reason, he would appreciate more information about the practice of detention in police cells, which apparently could last up to 23 days in Japan. Was a judicial order required for the continuation of police detentions at any point? Also of concern were reports that during such police detentions the detainees did not have access to lawyers. Interrogations were also possible under circumstances that made the detainees vulnerable, and which built up psychological pressure on detainees that could lead to confessions. In particular, he cited the example of the Futokoro case, in which forced confessions had been obtained.

      Turning to the issue of jurisdiction and extraterritorial jurisdiction for acts of torture, Mr. Mariño wondered if there had been any prosecutions brought against foreigners on Japanese territory who had committed acts of torture abroad. Conversely, he would like to hear an update on the extradition proceedings in the case of ex-President Alberto Fujimori, who Japan had so far refused to extradite to Peru on torture charges, among others.

      On human trafficking, Mr. Mariño said that was often carried out by organized crime and the Japanese mafia was particularly notorious. In that connection, he wondered how women victims of trafficking were protected from sexual exploitation. What recourse was there for victims of such exploitation? That was particularly worrisome in the light of the fact that there was no compensation available to those women who had suffered from sexual exploitation during the Second World War.

      ALEXANDER KOVALEV, the Committee Expert serving as Co-Rapporteur for the report of Japan, said that the legal foundations for the prohibition against torture in Japan were quite good. He also welcomed Japan’s policy of involving civil society in the prevention of torture.

      In terms of human rights training for officials, Mr. Kovalev was concerned that it consisted simply of lectures by senior officers from the same service. There was insufficient involvement of non-governmental organizations and academicians in those programmes. Also, was Japan ensuring that such training covered the full range of issues and human rights conventions that were applicable?

      Mr. Kovalev was concerned that there was no system to record interrogations in Japan, and that they could be carried on for hours without stopping. Non-governmental organizations had provided the Committee with a secret handbook on interrogation, which said that officials should not leave the interrogation room until they had obtained a confession, even through to morning. Was the Government aware of this secret handbook?

      Regarding the new prison law that had been adopted last spring, Mr. Kovalev pointed out that it did not provide for an independent investigative body to review complaints lodged by prisoners.

      Also of concern, Mr. Kovalev said, was that documents proving torture were kept by the authorities and there were a number of instances where it was later alleged that such documents had been misplaced or lost.

      Other Committee Experts then made comments or asked questions on a number of issues, including the need for a regular and independent system of review of interrogation methods and detention conditions with a view to preventing torture; the likelihood of the adoption of the human rights protection bill; a lack of absolute time-limits for confinement in isolation cells; whether any individuals had been convicted of complicity in acts of torture; the fact that complaints of torture often had to be lodged with the same bodies that were accused of committing the acts; and whether there was a statute criminalizing gender-based violence, including marital rape.

      An Expert, noting the already lengthy term limit for detentions in police custody – 23 days – said that that appeared to be a limit of 23 days per charge. Were there, therefore, individuals with multiple charges who were kept in such custody for over 23 days? He also asked if there were any limits on how many hours a day an interrogation could be carried out.

      An Expert wished to know if there had been any complaints received by foreigners regarding ill-treatment by officials involving racial prejudice and what action had been taken to address that. In that connection, several Experts expressed concern about the case of the “comfort women” forced into sexual slavery by the Japanese Army during the Second World War, as well as individuals who had been conscripted to forced labour. Those were war crimes. The Japanese Government should recognize its moral responsibility in those cases and ensure redress to the victims of those crimes.

      An Expert wondered about the various restraints, including arresting ropes and gags, that were permissible to use on prisoners and detainees, and requested further details about their use.

      Further to the Nagoya prison affair, an Expert asked for details of the punishments handed down in that case.

      An Expert specifically asked about the case of the detainees documented in yesterday’s Herald Tribune, in which several Japanese citizens had been found to have been coerced by officials into false confessions. In that connection, she would appreciate comments by the delegation on the methods of interrogation that led to such confessions and what measures would be taken to ensure that individuals were not subjected to such pressure or coercion in future. The article also mentioned a recently released documentary, “I Just Didn’t Do It”, documenting the case of a man who was falsely accused of groping a teenage girl on the Tokyo subway and was imprisoned for 14 months on that charge.

      An Expert noted that confessions could only be used as evidence if they had been freely and voluntarily made. The burden of proof that that was the case should be on the prosecution, not on the defendant.

      Noting that the Convention did permit the death penalty, an Expert said that was only with a view to its further restriction to the gravest cases and its eventual abolition. Furthermore, hanging was not a particularly humane form of carrying out that sentence.

      For use of the information media; not an official record

      CAT07013E
      ENDS

    3. Liberal Japan » Blog Archive » Another forced confession Says:

      […] 2007/05/29 FT: UN Committee against Torture castigates Japan’s judicial system, Debito.org; This blog entry includes entire Financial Times article plus relevant UN documents and more. […]

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