Posted by debito on July 13th, 2007
Hi Blog. These are some old chestnuts sitting on my blog, waiting to ripen and fall to earth:
DEBITO.ORG NEWSLETTER JULY 12, 2007
SPECIAL ISSUE ON JAPAN’S JUDICIARY
Contents of this newsletter:
1) UN COMMITTEE AGAINST TORTURE CASTIGATES J JUDICIAL SYSTEM
2) LAT: FIRST RECORDED POLICE CONFESSION OKAYED AS COURT EVIDENCE
3) DIETMEMBER CRITICAL OF J’S UPCOMING JURY SYSTEM
4) UNIVERSITY OF HAWAII’S ASIAN PACIFIC LAW JOURNAL ON CHILD ABDUCTION IN JAPAN
5) I GET SMACKED BY A CAR WHILE ON MY BIKE IN JUNE…
AND HAVE A GOOD EXPERIENCE WITH TRAFFIC COPS!
1) FT: UN COMMITTEE AGAINST TORTURE CASTIGATES JAPAN’S JUDICIAL SYSTEM
The Financial Times (London) reports that more bodies within the UN are pointing out that Japan is not only a slacker in the human rights arenas,
but also as sorely lacking in terms of checks and balances regarding criminal procedure and the judiciary.
We’ve been saying things like this for years,
glad to see it catching fire.
To save space, germane United Nations Press Releases on this subject dated May 2007 are archived in the Comments section, below the blogged version of this article. Click here if interested:
Related article on how international pressure is starting to affect things (such as recording interrogations) follows next in this newsletter.
Now for the FT article:
UN BODY ATTACKS JAPAN’S JUSTICE SYSTEM
By David Turner in Tokyo
Financial Times, May 23, 2007 (excerpt)
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…
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 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.
Entire article with UN press releases at
The entire 11-page report being referred to in the FT article below is downloadable from Debito.org at
Now for the fruits of international pressure:
2) LAT: FIRST RECORDED POLICE CONFESSION OKAYED AS EVIDENCE
I’ve talked numerous times on Debito.org about your rights when under “voluntary detention” and arrest by Japanese police (best article I have on the issue is at http://www.debito.org/japantimes102305detentions.html). Headline: As there is the presumption of guilt, you don’t have many rights at all, and those being interrogated will be under constant pressure to confess to something in lengthy tag-team police interrogations over the course of weeks.
This is especially germane to our readers, as the NPA’s tendency has been to target NJ for instant questioning, search, and even seizure while under suspicion for, say, cycling while foreign-looking.
However, the LA Times came out with an article that had some good news–a recorded police interrogation admitted in court. I’ve never heard of this happening before.
CASE MAY SHINE LIGHT ON JAPANESE INTERROGATIONS
A suspect’s confession is admitted as court evidence.
The move could pave the way for greater oversight of the country’s secretive investigation culture.
By Bruce Wallace, Los Angeles Times, May 26, 2007 (excerpt)
Courtesy of Jon Lenvik
TOKYO For the first time, a DVD recording of a suspect confessing his crime to police was admitted as evidence in a Japanese court Friday, a move that could lead to stricter checks on the lengthy, secret police interrogations that defense lawyers say result in pressure on suspects to make false confessions.
Prosecutors and police have long resisted demands from human rights activists and lawyers to record their questioning of suspects, who can be held without charge for 23 days in special police cells with limited access to defense lawyers.
But a court case here may open the way for greater oversight of the confession-based investigation culture…
Last week, the United Nations’ Committee Against Torture amplified Japanese activists’ call for an end to the nation’s system of pretrial detention of suspects in police stations without access to lawyers…
The committee demanded the 23-day holding period be shortened to match standards in other countries. And it said interrogations should be monitored by independent observers as well as recorded, so courts can later judge whether confessions may have been obtained through coercion.
“The Japanese police should now admit that they cannot investigate people for 23 days in detention,” said Eiichi Kaido, a lawyer who has been active in the campaign by Japanese bar associations to reform the system. “No other countries have such a long detention period. The U.N. report means the Japanese legal system has to be amended.”
The Justice Ministry said only that it was studying the U.N. report, noting that its recommendations cut across several government jurisdictions…
The government has shown little inclination to radically overhaul a system that is defended by police and that attracts little criticism from the Japanese public or media. The U.N. review of the justice system was largely ignored by media here, despite its charge that the Japanese system fails to meet minimal international standards in many areas…
Entire article at http://www.debito.org/?p=419
Now let’s hope that with recent pressure from both popular culture (Suo Masayuki’s movie I JUST DIDN’T DO IT) and from overseas (the UN) results in more judicial oversight, and required recordings of all police interactions with suspects (with lawyers present as well). Don’t hold your breath, but it’s still a step in the right direction.
Meanwhile, the Ministry of Justice counterattacks–making sure nobody challenges their power over jurisprudence, by minimizing the impact of “lay judges” (i.e. jurors) being winkled into the criminal justice system by May 2009 by popular demand:
3) DIETMEMBER HOSAKA CRITICAL OF “THOUGHT SCREENING” IN NEW J JURY SYSTEM
Chris Salzberg at Global Voices Online translates Lower House Dietmember Hosaka Nobuto’s questioning of the Justice Minister et al regarding their proposed screening of applicant citizen jurors in the new and upcoming jury for criminal cases.
This is very important, since for once Japan’s judiciary is trying to open the sacerdotal system of judicial decisionmaking to more public input and scrutiny. And here the Ministry goes all over again trying to screen jurors to make sure they are sympathetic towards (i.e. trusting of) the police.
As noted above, police and prosecutors have enough power at their disposal to convict people without proposing to stack the jury too. But nobody likes to give up power, especially a control-freaky type of place like the MOJ:
JAPAN: THOUGHT CHECK SCREENING FOR CITIZEN JUDGES
By Chris Salzberg and Tokita Hanako
…It is only against this backdrop of the chronic problem of forced confessions that Hosaka’s blog entry can really be understood:
Yesterday, in the Lower House Committee on Judicial Affairs, I questioned [the government] for 40 minutes over a legal revision of criminal proceedings to institutionalize “Participation in the Judicial Action of Crime Victims”.
In exchanges between the Supreme Court and the Justice Ministry, a state of affairs was revealed in which the legal system would be swayed from its foundation by a “wide range of views from a group of citizens chosen by drawing lots”, part of the [new] citizen judge system.
When a police officer is called by the prosecution to testify as a witness, it is permissible to ask the citizen judge candidates and the court of justice: “Do you have trust in the investigation of this police officer?”
If you answer: “No, I do not trust this police officer”, then the prosecutor can judge that “A fair trial cannot be guaranteed” and can instigate a procedure in which, without indicating any reasons, a maximum of 4 candidates can be disqualified.
The 6 members of the citizen judge system, acting as “representatives of the people”, under this filtering by the prosecution, becomes a group of only “well-intentioned citizens without any doubts about the police”; this in turn has a huge influence in court battles in which the prosecution argues with the defence over the “voluntariness of confessions” [extracted by the police].
The investigation has the authority to perform a “thought check” on these delegates of the citizen court system, chosen by “drawing lots”, related to issues such as their “degree of confidence in the police investigation” and their “view on the death penalty”, and, without stating any reason, can carry out a “challenge” procedure to eliminate up to 4 candidates.
I am shocked that this scheme has been hidden. For the “bureaucracy”, this very convenient “well-intentioned citizen without doubts about the bureaucracy”, chosen from the entire population by drawing lots, is nothing more than a disguise under the name of “participation in the legal system”…
Starting next week, I will try to put the brakes on this reckless degeneration of justice. Please have a look at the exchange that took place in the Committee of Judicial Affairs, reproduced below…
Chris’s excellent blog entry has analysis and fully-translated proceedings of Hosaka’s Diet session:
Thanks to the unsung heroic Dietmembers out there.
One more item about jurisprudence, this time in Family Court:
4) UNIVERSITY OF HAWAII’S ASIAN PACIFIC LAW JOURNAL
ON CHILD ABDUCTION IN JAPAN
From Mark Smith at Children’s Rights Network Japan:
I would like to tell everyone about a new law journal article about Japanese family law that is now available. It’s written by a law professor in Japan who himself has been through the family court system all the way up to the Supreme Court.
First sentence: “Japan is a haven for parental child abduction.”
Need I say more? If you are married to a Japanese partner and have children, it’s a must read, even at 100 pages.
IN THE BEST INTERESTS OF THE COURT:
WHAT AMERICAN LAWYERS NEED TO KNOW ABOUT CHILD CUSTODY AND VISITATION IN JAPAN
Colin P.A. Jones JD, Asian Pacific Law and Policy Journal
University of Hawaii Volume 8, Issue 2, Spring 2007
More on the craziness of divorce law in Japan:
Finally, to leave you on a pleasant note:
5) TRAFFIC ACCIDENT: GOOD EXPERIENCE WITH POLICE
I have heaped enough scorn at Debito.org on the Japanese police (deservedly, mind you). But I thought I’d balance things out a bit with praise where it’s due:
TRAFFIC ACCIDENT IN SAPPORO
TREATED WITH DIGNITY AND EFFICIENCY BY THE POLICE
JUNE 13 TO 15, 2007
I had a pretty rotten June
and it was only made worse by the events of June 13:
At 1PM, I was doing my bicycle commute to school from downtown Sapporo (60 kms round trip), cycling on a sidewalk designated for cyclists, when a middle-aged gentleman working for a construction company left the parking lot of Homac department store in Atsubetsu, Sapporo, without looking both ways.
He ploughed into the front tyre of my bicycle (the one I have used for all of my cycletreks these past few years), dragging me and my bicycle for about a meter. My body weight was thrown upon the hood of his car, but my right leg took a sizeable impact below the knee.
He came out of his car immediately to check on me and to apologize. Sliding off his car and standing on my good left leg, I said, okay, let’s get the police involved. I dialed 110 on my keitai, got the Atsubetsu Police, and explained to them the situation. Location, details of the impact, make and license plate of the car, and names.
Some hints, in case you find yourself in this situation:
1) IF YOU ARE THE VICTIM, TAKE CHARGE. NEGOTIATE WITH THE POLICE RIGHT AWAY ON THE PHONE, WHERE THERE IS LESS NONVERBAL BAGGAGE TO DEAL WITH.
2) DO NOT MOVE THE VEHICLES. STAY WHERE YOU ARE AND LET THE POLICE TAKE PHOTOGRAPHS. CHANGING THE POSITIONS DESTROYS EVIDENCE.
3) STAY AS CALM AS POSSIBLE. DON’T SAY YOU’RE SORRY UNLESS YOU ARE WILLING TO TAKE FULL RESPONSIBILITY FOR THE ACCIDENT. LET THE POLICE GATHER THE INFORMATION.
We waited about ten minutes before the traffic police came by, and they talked to me first and got my side of the story. Not once did they ask my nationality (the driver, making conversation, did, not that it bothered me when he was trying to be helpful). Once I showed the cops my driver license and university meishi, they were pleasant, even deferential. They treated me like a victim.
Even more luckily, the driver of the car was a decent sort, and claimed full responsibility and fault. The driver and I were cordial, cross-checking our stories, while the police took our statements separately. Our memories jibed, so the investigation was completed in about ten minutes. The police took their pictures, chalked the positions of the vehicles and had them moved, and confirmed their interpretations of the events (based upon the evidence at hand) with our recollections (police in Japan try to find fault with both parties, so they asked if I was cycling fast or recklessly. I wasn’t, the driver concurred, and reiterated that he was completely to blame).
The police advised me to go to a hospital immediately for some X-rays, then said we could depart. I locked my ruined bike (the front tyre was completely collapsed and bowed inward, the front fork bent, and even the back tyre was askew–I have the feeling the driver confused his accelerator with his brake) to a nearby fence, limped to the driver’s car, and got a lift to school.
The driver’s insurance company was on the phone to me within hours, getting my particulars and side of the story. (The agent did ask about my nationality, and I said Japanese. When he asked my previous nationality, I told him it was irrelevant. He dropped the subject.) He was trying to get an estimate of my bike’s worth, which I said I could not assess. I told him that I wanted my bike the same as it was before, at no cost to me. I would retrieve the bike later that evening and deliver it to my favorite bike shop for a repairs estimate. He said keep track of my auto mileage for compensation for my fuel costs. I gave him the bike shop’s number and let them negotiate things out.
I went to the hospital two days later (one I chose; the insurance agent called ahead and made an appointment for me; they would cover all my bills) for several X-rays of my right leg. They turned up negative for any severe damage (some possible bleeding in the bone, but no edema). They diagnosed (correctly) that I should have a full recovery in a couple of weeks, but in the interim it was difficult for me to walk normally and climb stairs. The hospital would be sending the insurance agency news on the doctor’s findings in a few weeks.
I then took the doctor’s diagnosis to the Atsubetsu Police Station, who treated me again with deference and some respect for having Japanese citizenship. They confirmed the written-up report with me line by line, asked me if I wished to press charges against the driver (I didn’t), and asked me to stamp my approval. I had not brought my inkan, but they allowed me to sign the form when I indicated I was unwilling to fingerprint it. At all times they were on the ball (I saw the drawing of the accident scene–it was clear and accurate) and after thirty minutes I was out the door.
Outcomes of this case:
1) I got my bike fixed. It’s good as new and I’m cycling my 200 kms a week as before.
2) The injuries I suffered are no longer part of my life. Looks as though my lower leg just had a really bad Charley Horse; all seems back to normal. No pain whatsoever.
3) The driver’s insurance company did what you’d expect from an insurance company (a la Michael Moore’s SICKO)–haggle. The agent tried to force me to pay ten percent of my bike’s repairs. I said that the police (and the driver) had acknowledged 100% fault on the driver, so I was not going to pay anything.
When the agent tried to say that it’s customary for the victim to pay ten percent, I said: “Look, I’m not asking for any compensation or damages. Just have all my repairs and medical bills paid and my costs out of pocket at zero. I could ask for compensation (baishoukin, or isharyou) money on top, but the driver’s been such a nice chap that I didn’t have the heart. My mind could change, however, with the tone of this negotiation, and cost your company even more money. So let’s not haggle here over 8000 yen.”
An hour later, the insurance company called me back and said that the driver agreed to pay the last ten percent out of his pocket. Case closed.
So in conclusion, let me say that I found the police to be fair, thorough, and in no way making an issue of me cycling while White. Good.
I believe the kirifuda here is learning how to take charge linguistically. So those who find themselves in a similar situation had better understand the value of understanding Japanese, and having all their ducks in a row to establish credibility. Those who believe that NJ should not learn Japanese because they can get along just fine in English etc. (or mysteriously believe that they can get away with more due to some kind of “guest status”), wise up.
Thank heavens I had a responsible driver, as well. This went as smoothly as I think it possibly could have. The best part of a rotten June, and believe me, that’s saying something. We should all be so lucky with Japan’s judiciary.