ALTERNATIVE REPORTTO THE FOURTH PERIODIC REPORT OF JAPANON THE INTERNATIONAL COVENANTON CIVIL AND POLITICAL RIGHTS

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INTRODUCTION

This alternative report by the Japan Federation of Bar Associations (hereinafter "JFBA") to the Fourth Periodic Report of the government of Japan, presented in accordance with the International Covenant on Civil and Political Rights, is organized as follows. Chapter 1: General Issues, Chapter 2: Problems of Foreigners and Minorities, Chapter 3: Criminal Procedure, Chapter 4: The System of Capital Punishment, Chapter 5: Treatment of Persons in Criminal Detention, Chapter 6: Mentally Ill Persons, Chapter 7: Measures for the Elimination of Discrimination against Women, Chapter 8: Measures for the Rights of Children. A brief summary of the contents of each chapter is as follows:


 

(1) Chapter 1,

"General Issues," looks at the effectiveness of the Covenant in Japan's courts in relation to the Japanese Constitution, problems with interpretation and application of the Covenant and problems with ratification of the First Optional Protocol. It also comments on the reality that twenty years after Japan has ratified this Covenant, rights provided under it are still not guaranteed in Japan and, finally, considers the reasons why the Japanese government is reluctant to participate in the international procedure for individual communications.


(2) Chapter 2,

"Problems of Foreigners and Minorities," comments on continuing issues connected with the long-standing problem of guaranteeing rights to Koreans who are permanent residents of Japan, notes the situation of serious human rights abuses in connection with deportation and deportation procedures for migrant workers and considers the progress in and problems with measures for protection of Ainu and other minorities.


(3) Chapter 3,

"Criminal Procedure," notes that there has been no solution of the substitute prisons (Daiyo Kangoku) problem since the previous counter-report and reports on the continuing occurrence of human rights violations that result from this system. In order to prevent human rights violations, the JFBA proposes: 1) the establishment of a system of state-appointed attorneys for suspects before their indictment; 2) that the systems for disclosure of evidence and for detention of suspects be revised; 3) that legislation for the regulation of police interrogations be introduced; and 4) that improvements be made in the habeas corpus law and in the system for interviews between attorneys and persons under detention.


(4) Chapter 4,

"The System of Capital Punishment," reports on the current state of the system, notes that criminal procedures leading to death sentences do not fulfil the requirements of the Covenant, proposes that Japan suspend executions and comments on problems involved with the ratification of the Second Optional Protocol.


(5) Chapter 5,

"Treatment of Persons in Criminal Detention," reports on the state of treatment of prisoners with particular regard to Japan's onerous prison rules, notes the numerous occurrences of major human rights violations in the treatment of foreign prisoners, devotes considerable attention to reports on Japanese prisons issued by international NGOs and notes the urgent need for improvements.


(6) Chapter 6,

"Mentally Ill Persons," comments on the present state of compliance with the Covenant and the effectiveness of appeal procedures taken by patients involuntarily admitted to mental health facilities, with particular reference to the introduction of a new law in 1987 and notes that despite the continuation of Covenant violations, the government has not considered the Covenant in its deliberations over legal revisions.


(7) Chapter 7,

"Measures for the Elimination of Discrimination against Women," reports on measures that need to be taken to raise the status of women and the state of women's participation in society. With regard to inequalities in employment, it notes problems with the Equal Employment Opportunities Law of 1997. It addresses the problem posed by the legal requirement that spouses must have the same family name, comments on guarantees of gender equality in textbooks, reports on the state of violence against women and offers proposals for measures that should be taken by the government.


(8) Finally, Chapter 8,

"Measures for the Rights of Children," comments first on discrimination against the rights of inheritance of children born out of wedlock, with particular reference to a decision by the Supreme Court Grand Bench (en banc) handed down since the Human Rights Committee's (hereinafter "the Committee") consideration of the Third Periodic Report by the government of Japan. The majority opinion of the Supreme Court is that, although the law prescribing differentials in inheritance does not violate the Constitution, it is appropriate to resolve the issue by amending the law. The response of the government, thus, should be criticized. Chapter Eight also deals with the problems involved in the public disclosure of birth registrations and family registrations of children born out of wedlock. Next, nationality problems are considered, with comments on the obstacles to the acquisition of a nationality for some children in Japan, and discrimination in the granting of Japanese nationality. Finally, problems of child abuse are considered. Because the Committee on the Rights of the Child has already conducted a detailed consideration of the First Periodic Report of the Japanese government under the Convention on the Rights of the Child, this item is not discussed in detail in this alternative report.


Chapter 1: GENERAL ISSUES

Section 1: Public Welfare (Article 5 of the Covenant)

  1. Conclusions and Recommendations

    By restricting rights guaranteed under the Covenant on the grounds of "public welfare," Japan violates the article 5 of the International Covenant on Civil and Political Rights (hereinafter, the Covenant) which provide specific, substantive rights.
  2. Subjects of Concern and Recommendations of the Human Rights Committee

    Concerning the application of the Japanese constitutional doctrine of public welfare, the Committee commented as follows: Furthermore, it is also not clear whether the "public welfare" limitation of articles 12 and 13 of the Constitution would be applied in a particular situation in conformity with the Covenant. (Comment, paragraph 8) and again: The Committee regrets that appears to be a restrictive approach in certain laws and decisions as to the respect of the right to freedom of expression. (Comment, paragraph 14)

    Most importantly, the issues being raised by the Committee are: 1) that the constitutional doctrine of the "public welfare" is vague, and that it has the potential for making the guarantee of rights less than fully effective; and 2) that restrictions on rights made in the name of "public welfare" exceed the limits of restrictions on rights recognized by the Covenant.
  3. The Government's Response and its Fourth Periodic Report (paragraphs 2-8)

    In its Fourth Periodic Report, the Japanese government states that Article 13 of the Japanese Constitution indicates that human rights "...may be restricted by their inherent nature so that conflicting fundamental rights can be coordinated...." (paragraph 3) As an example, it explains that impugning the honor of another person is a punishable crime the punishment of which, it says, is in the public welfare. It adds that there is "...no room for restriction under the concept of 'public welfare' on all those human rights which have no possibility of interfering with other people's rights." Concerning the range of limitations placed on human rights by laws, ordinances, etc. for reasons of the "public welfare," the report cites court decisions showing that, unlike restrictions on business or economic freedoms, in which the discretionary powers of the legislature are recognized as being relatively broad, strict standards apply to laws, ordinances, etc. limiting freedom of thought and conscience. The report maintains that it is not possible for state authority to arbitrarily restrict human rights under the concept of the "public welfare" and that actually existing restrictions under this concept amount to essentially the same restrictions on human rights recognized by the Covenant.
  4. Position of the JFBA
    1. In fact, restrictions on human rights imposed under the doctrine of public welfare are not limited to the "coordination of conflicting fundamental rights." This concept is used as a basis for limits placed on basic individual rights by the state in the interests of the state.

      The Alien Registration Law establishes the system for registering fingerprints of foreign residents of Japan. A Supreme Court decision, (Supreme Court, Third Petty Bench, Judgement of December 15, 1995) ruled that the public welfare provision of article 13 of the Constitution permits restriction of the freedom of all persons from arbitrarily forced fingerprinting. The reasoning given by the Court for this conclusion can be summarized as follows. "This freedom [the freedom of all persons from arbitrarily forced fingerprinting], however, is not protected without restriction in regard to the exercise of state power. Article 13 of the Constitution provides that a fitting amount of restriction can be applied when necessary for the public welfare." The fingerprinting system "has an objective of ascertaining information concerning residence and status of aliens resident in Japan through their registration." The Court accepted that this system is "the most reliable method of identifying aliens, who are not a part of the family registration (koseki) system." Accordingly, the Court concluded that "the objective of this legislation is sufficiently reasonable and can be affirmed to be necessary."

      It is clear that "public welfare" in this case is not concerned with securing the rights or safety of others, but rather the state's interest in the "impartial management of aliens resident in Japan."
    2. The term "public welfare" usually includes the social interests of public safety, order, morals, etc. The Constitution of Japan, however, gives no definition of this term. Moreover, we have not been able to locate any court decision, from the Supreme Court on down to the district (trial) courts, that clarifies the meaning of "public welfare."

      Thus, the scope of "public welfare" is defined neither by law nor by legal precedent. It is an extremely vague concept that is used to impose limitations on rights guaranteed under the Covenant. The fact that it is very hard to predict what sort of legal limitations on rights will be demanded in its name is a serious problem.

Section 2: The Principle of Equality and The Tolerance of "Reasonable" Discrimination (Articles 2 and 26 of the Covenant)

  1. Conclusions and Recommendations

    By passing legislation characterized as "reasonable discrimination," Japan is in violation of article 2 paragraph 1 and article 26 of the Covenant, in effect rendering these articles inoperative. This official tolerance of discrimination should be immediately corrected.
  2. Subjects of Concern and Recommendations of the Human Rights Committee

    The Committee has not directly discussed the arbitrary interpretation and application of the doctrine of "reasonable discrimination" used by Japan's courts, but it has expressed concern and recommended correction of a variety of types of discrimination in Japan, including: - Discrimination against children born out of wedlock in regard to inheritance - Discrimination against persons born in North and South Korea and Taiwan who were formally members of the Japanese military, in regard to military pensions. - The requirement that foreigners with permanently resident in Japan must carry identification at all times, which is not required of Japanese nationals. (Comment, paragraphs 9, 11 and 17)
  3. The Government's Response and its Fourth Periodic Report (paragraphs 27, 199-202)

    Concerning discrimination against children born out of wedlock the government maintains in the Fourth Periodic Report that "...the Government of Japan does not consider that a distinction between the statutory share in succession of an illegitimate child and that of a legitimate child necessarily constitutes unreasonable discrimination against illegitimate children." It makes no reference at all to pension discrimination against former members of the Japanese armed forces, nor to the relevant court rulings which have come down. Concerning the governmental purpose behind the legal requirement that foreign permanent residents of Japan carry specific identification at all times, the report simply says that the government is now considering this matter as part of a complete revision of the alien registration system.
  4. Position of the JFBA
    1. The Supreme Court of Japan has presented the following theory of "reasonable discrimination," which serves as the legal basis for the above-mentioned policy of the government and the statements of the government in its Fourth Periodic Report.

      Article 14 paragraph 1 of the Japanese Constitution provides that "[a]ll the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin." The Supreme Court has interpreted the phrase "race, creed, sex, social status or family origin" as only examples, not a definitive list, and that discrimination on such bases is permissible, provided that it is "reasonable."
    2. This doctrine has been criticized, however, on the grounds that no Supreme Court decision has given a clear definition of what constitutes "reasonable discrimination," and that it is an extremely vague concept that cannot serve as a standard for judicial scrutiny. Moreover, even when one of the parties to a lawsuit has claimed a violation of the Covenant, the Supreme Court has affirmed this concept without even conducting specific consideration of the applicability of the Covenant to the case.

      For example, a Supreme Court decision of July 5, 1995 (Grand Bench) affirmed a provision for discriminatory division of inheritance to children born out of wedlock (Article 900, proviso 4 of the Civil Code) on the grounds that: The purpose of this provision is understood to be to strike a balance between respect for legal marriage and protection of illegitimate children, on the basis of respect of the position of the legitimate child born of the legal spouse, while giving consideration to the standpoint of, and extending protection to the illegitimate child, who is also eligible for inheritance, by recognizing as the legal inheritance for the illegitimate child one-half that of the legitimate child. The Court reasoned that: Because legal marriage is a part of the current Civil Code, the above provision should be regarded as having a reasonable basis. The reasons for establishment of this provision and its specifying as the legal inheritance for the illegitimate child one-half that of the legitimate child cannot be held to be grossly unreasonable or exceeding the bounds of the reasonable discretionary power given the legislature. This provision cannot be found to constitute unreasonable discrimination, and therefore is not in violation of Article 14 paragraph 1 of the Constitution.

      Although one of the parties in the suit maintained that this provision violates articles 24 and 26 of the Covenant, this decision made no reference of any kind to the applicability of the Covenant to this case. (Moreover, references to violations of the Covenant were deleted from this party's argument when it was quoted in a collection of court decisions.)

      In a military pension discrimination case concerning a Taiwanese man, the Supreme Court Third Petty Bench in a decision handed down on of April 28, 1992, ruled as follows: [Restriction of military pensions to Japanese nationals] can be interpreted as being based on the fact that the problem of compensation to Taiwanese residents who were members of the Japanese armed forces was scheduled to be resolved through negotiations between the two governments. This should be regarded as constituting an adequately reasonable basis. Consequently, even though discrimination has occurred between former military members having Japanese nationality and former military members who were residents of Taiwan as a result of the nationality requirement in this case, because it is based on the above grounds ... it cannot be said to be in violation of article 14 of the Constitution.

      Interpreting the discrimination as permissible, the Court made no holding at all with regard to the appellant's claim of a violation of article 26 of the Covenant.
    3. In this way, the Supreme Court completely avoids using the compatibility or incompatibility of a challenged law with the Covenant as a standard of judgement in cases where the Court decides whether the discrimination is "reasonable." As a result the Court upholds discriminatory treatment that is not permitted under the Covenant. The position of the government concerning "discrimination that is not unreasonable" is based on these Supreme Court decisions. If discrimination of this kind is permitted, the protections in articles 2 and 26 of the Covenant have no effectiveness whatsoever. The government should lose no time in taking corrective legislative measures concerning the above-mentioned cases of discrimination and should immediately begin reexamination of all other laws to determine whether or not they are compatible with the Covenant and establish legislative or other corrective measures for suspected violations of the Covenant.

a Covenant) <the of 2 (Article covenant Effectiveness 3: Section>

  1. Conclusions and Recommendations

    In order to secure the guarantees of effectiveness provided for in article 2 paragraph 2 and article 3 of the Covenant, the government should recognize that the Covenant requires it to implement immediately and enforce the provisions of the Covenant, and the government should enact the necessary legislative measures, such as revisions of the Code of Criminal Procedure and Code of Civil Procedure, in order that persons may receive judgement and judicial remedies from the court of last resort, i.e., the Supreme Court of Japan.
  2. Subjects of Concern and Recommendations of the Human Rights Committee

    In its comments with respect to the effectiveness of the Covenant after consideration of the Third Periodic Report, the Committee commented that, "[t]he Committee believes that it is not clear the Covenant would prevail in the case of conflict with domestic legislation and that its terms are not fully subsumed in the Constitution." (Comment, paragraph 8).
  3. The Government's Response and its Fourth Periodic Report (paragraphs 9-11)

    Under the title, "Relation between the Covenant and Domestic Laws (including the Constitution)" in the Fourth Periodic Report, the government merely states a general principle of international law, i.e., that decisions about whether the provisions of a treaty or convention have direct application should be judged on a case-by-case basis. The government does not reveal its view about whether the Covenant itself or any parts thereof have direct application. Nor does it offer any consideration about the obligation of immediate implementation provided for in article 2 of the Covenant. Due to this attitude of the government, nearly twenty years since the Covenant was ratified individuals are still left in the dark about whether they can actually enjoy the guarantees of rights based on the provisions of the Covenant, either through direct application of the Covenant or through legislative measures based on the Covenant. Moreover, the government's report continues to show the mistaken understanding of its previous report that the effective scope of human rights guaranteed by the Japanese Constitution is the same as that of the Covenant, and therefore no conflict arises between the two.
  4. Position of the JFBA
    1. The Japanese government has not taken a clear position concerning its obligation to implement and enforce the provisions of the Covenant without delay. Even apart from this, the Japanese government has, on the basis of article 2, an obligation to implement immediately its provisions, using legislative or other measures to effectively guarantee the rights provided for under the Covenant. The government, however, has shown no clear awareness of these obligations.

      In Japanese law, it is generally understood that, while treaties ratified by the Diet are subordinate to the Constitution, they have domestic legal binding force and priority over other domestic laws. The government took the position in its First Periodic Report that because the Covenant had become a part of Japanese law, was a trial standard and predominated over domestic law, it would become necessary to either render invalid domestic laws not in accord with the Covenant or revise them.

      In a reply to the Committee during the consideration of the Third Periodic Report the Japanese representative said: ...while individuals have rights with in the terms of the Covenant, each of the nations that have ratified the Covenant has also taken steps to enact the legislation in line with the requirements of article 2 of the Covenant, and until such time as obligation imposed by such domestic legislation become clear, it will not be possible purely on the basis of the Covenant for an individual to bring a case against the State on the ground that it has not provided the protection [that] it is required to provide. This view seems to be denying the obligation of the government to implement and enforce all provisions of the Covenant without delay.

      The Japanese government has taken the approach of merely stating general principles concerning the effectiveness of international laws, treaties and conventions. Under a legal system in which the Covenant is accepted as domestic law, because of the obligation of immediate enforcement imposed by article 2 of the Covenant, in principle automatic enforceability of its provisions should be recognized. But if the state does not take action, such as new legislation, immediately, then that failure to act should be recognized as a violation, and remedies must be provided accordingly. The government of Japan, however, nearly twenty years after it ratified the Covenant still has not admitted having breached its obligations under the Covenant.

      For example, in a case in which the propriety of limitations on contacts between an attorney and a criminal suspect imposed by the investigating authorities was disputed (Fukuoka High Court, 1988 [Ne] Docket No. 386, No. 390; Judgement of February 21, 1994), the government argued that, "[a]rticle 14 of this Covenant does not have automatic enforceability. Laws should clarify the specific rights belonging to the realm of civil rights."1

      1 The court did not recognize this argument of the government. There have been other examples as well, though scattered, of active recognition by Japanese courts of rights guaranteed by the Covenant. Specifically:

      1. A decision that overturned a ruling imposing translation costs on a criminal defendant as a violation of article 14 paragraph 3(f) of the Covenant. (Tokyo High Court, Judgement of February 3, 1993,in Gaikokujin hanzai saiban hanreishu, 1994, p. 55)
      2. Decision Concerning the Constitutionality of Inheritance Discrimination Against Illegitimate Children

        This decision cited a violation of the Covenant in addition to finding a violation of Article 14 of the Japanese Constitution. The court stated that, "[i]n consideration of the spirit of article 24 paragraph 1 of the Covenant, a solution to the problem must be found that abides by both the concepts of protection of family relationships on the basis of legal marriage and that of the individual dignity of the illegitimate children." (Tokyo high Court, Judgement of June 23, 1993, Hanreijiho No. 1465, p. 55)
      3. Decision Granting Damage Compensation in Recognition of the Illegality of an Arrest for Refusal to Submit to Fingerprinting

        Citing insufficient necessity for forcing a long-term resident alien to submit to fingerprinting, the court ruled that, "[t]here is an undeniable possibility of a violation of articles 17 and 26 of the Covenant (equality before the law, etc.), the Constitution of Japan Articles 13 (right to privacy) and 14 (equality before the law)." On the basis of this reasoning, the court awarded a part of the compensation demanded. (Osaka High Court, Judgement of October 28, 1994, Hanreijiho No. 1513, p. 71) In this case, the decision referred to the Vienna Convention on the Law of Treaties, the general comments and views of the Committee and decisions by the European Court of Human Rights in its interpretation of the Covenant, giving a specific interpretation of the Covenant that recognized it as a distinct instrument in itself, rather than a document that merely repeats basically the same content as the Japanese Constitution.
      4. Decision Awarding Damage Compensation in Recognition of a Violation of the Covenant Regarding Restrictions on Visits Between a Prisoner and the Prisoner's Legal Counsel

        This decision found the requirement of a prison officer's attending meetings between the attorney and the prisoner and the limitation of the visits to thirty minutes to be in violation of the Prison Law, the Prison Law Enforcement Rules and article 14 paragraph 1 of the Covenant. (Takamatsu High Court, Judgement of November 26, 1997)
      5. A decision found a problem in regard to the exercise of the government's discretionary power when it determined that the expropriation of a piece of real estate under article 20 paragraph 3 of the Compulsory Purchase of Land Law was not in conflict with the right of indigenous people (in this case, Ainu) to enjoy their own culture, as guaranteed under article 27 of the Covenant. (Sapporo District Court, Judgement of March 27, 1997)
    2. The Supreme Court of Japan is, as a general matter, still not obligated to rule concerning questions of compliance with the Covenant. Arguments alleging violations of the Covenant are not considered to be grounds for appeal to the Supreme Court within Japanese law, in both civil and criminal proceedings. Accordingly, there have been cases in which motions of appeal to the Supreme Court filed by individuals alleging Covenant violations have been rejected without any consideration given to questions of Covenant violations.

      In criminal cases, because grounds for appeal to the Supreme Court have always been rigidly restricted to constitutional questions, the Court has generally taken the position that claims of the Covenant violations are, in effect, no more than arguments of violations of laws and ordinances, which are not legal grounds for appeal to the Supreme Court, and thus the Court makes no judgements whatsoever concerning compliance with the Covenant.

      In civil cases until December 31, 1997, major violations of laws and ordinances, in addition to constitutional violations, were recognized as grounds for appeal. The Supreme Court had on occasion made holdings concerning claims that violations of the Covenant had occurred, and sometimes it declined to reach such questions. Since the revised Code of Civil Procedure went into effect on January 1, 1998, however, grounds for appeal to the Supreme Court in civil cases have been limited in principle to constitutional questions only. This means that the Supreme Court may not give any more judgements concerning these questions, just as in criminal cases.

      The failure of the Japanese system to ensure the possibility of remedies concerning rights guaranteed by the Covenant as described above violates article 2 paragraph 3(b) of the Covenant.
    3. Japanese courts frequently fail to give serious consideration to the question of compliance with the Covenant.

      In response to arguments citing Covenant violations, Japan's courts generally will recognize - on an abstract level - the automatic enforceability of Covenant provisions and their validity as legal standards for the courts, but in most cases their judgements do not recognize rights guaranteed to individuals by the Covenant.

      In fact, there have been many court decisions that have reaffirmed the position that the rights guaranteed by the Covenant are the same as those of the Constitution, so that as a result if there are no constitutional violations, there are no violations of the Covenant. Many courts conclude the identity of Covenant and constitutional rights without any consideration of the provisions of the Vienna Convention on the Law of Treaties concerning interpretation of the Covenant or the general comments and views issued by the Committee. (As shown in Note 1, however, there have been instances in recent years of findings by a few lower courts of Covenant violations in decisions that gave developed interpretations of the Covenant, with reference to interpretations based on the Vienna Convention on the Law of Treaties, general comments of the Committee and precedents from the European Court of Human Rights, etc.)

      An example of the casual identification of Covenant and constitutional rights is a decision by the Tokyo High Court in a case concerning the fingerprint registration system. The High Court stated that:

      From Article 13 of the Constitution, it could be said that even aliens have the right to not undergo forced fingerprinting without reasonable cause. It is also clear, however, from the provisions of the same article that due restrictions to this freedom of the individual can also be applied when necessary for the sake of public welfare. In consideration of the purpose of the system of fingerprinting provided for in the Alien Registration Law current at the time with which this case is concerned, it can be affirmed that there was sufficient need for this system and it was sufficiently reasonable.... It is completely inconceivable that this system violates Articles 13 and 14 paragraph 1 of the Constitution or Articles 7 and 26 of the Covenant. (Tokyo high Court, Judgment of April 4, 1992)

      A second example of this cavalier treatment of the Covenant by Japanese courts is a decision concerning restrictions placed on defendants' rights of communication with their legal counsel. An attorney filed suit against the state for compensation because the court had imposed restrictions on communications with his client and because letters he had exchanged with his client (who was under detention) had been subjected to censorship. In the first instance, the court had permitted the defendant and the attorney to show memos to one another while in court, but had forbidden them from writing responses on each other's papers. The censorship of the letters was based on Prison Law Enforcement Rule 130 paragraph 1. The suit claimed that both of these restrictions violated article 14 paragraph 3 (b) and (d), among other provisions, of the Covenant. The decision of the original trial court stated as follows:

      In consideration of the wording and intent of the provisions of the Covenant and article 5 paragraph 1 of the Covenant, the rights guaranteed therein are not absolute, nor are they unlimited, but rather are subject to the reasonable restrictions that are inherent in rights....Although the provisions of this Covenant are more detailed and specific than those of the Constitution, it is understood that its intent does not differ from the guarantees of the Constitution. Therefore, even given that rights of communication (free and confidential, between the defendant and attorney) are guaranteed as indicated above, just as this right in the Constitution is subject to prescribed restrictions, it is subject to prescribed restrictions under the Covenant as well, as indicated above. (Urawa District Court, Judgement of March 22, 1996)

      On appeal the high court fully affirmed the judgement of the district court holding, "[t]hat the rights under article 14 paragraph 3(b) and 17 of this Covenant are neither absolute nor unrestricted ... is as stated in the original decision." (Tokyo High Court, Judgement of November 27, 1997) This decision is currently on appeal to the Supreme Court.
    4. From this discussion, it can be seen that the Covenant is not truly functioning as domestic law in Japan. Measures for its effective implementation must be taken immediately.

Section 4: Problems with Ratification of the First Optional Protocol to the Covenant

A. Conclusions and Recommendations


The reasons offered by the Japanese government for not ratifying the First Optional Protocol, namely the "independence of the Japanese judiciary," do not make sense. The First Optional Protocol should be ratified immediately.


B.Subjects of Concern and Recommendations of the Human Rights Committee


It has already been made clear in the Third Periodic Report that the Japanese government has no reason for not ratifying the First Optional Protocol. When the Third Periodic Report was examined, many Committee members questioned the Japanese government's attitude in regard to the Protocol, and asked in their final statements that the Japanese government ratify it. The comment by Mr. Julio Prado Vallejo is representative of the stance of the Committee:


I would like to express my support for those members of the Committee who have referred to the non-ratification, the failure to ratify the Optional Protocol. We don't think that there is any justification in the report for not ratifying it.


As a result of the examination, the Committee recommended as follows.


The Committee recommends that Japan become a party to both Optional Protocols to the International Covenant on Civil and Political Rights.... (Comment, paragraph 16)


C.The Government's Response and its Fourth Periodic Report (paragraph 43)


(1) Statements in the Fourth Periodic Report


The Japanese government in its Fourth Periodic Report says nothing about its consideration of this matter during the five years that have elapsed since the Third Periodic Report. In the present report, the government cites the following problem with ratification.


However, Japan faces problems yet to be solved for ratification, being concerned about how to harmonize this system and the Japanese judicial system, in particular maintaining the independence of the judiciary.


The unofficial Japanese version of the report is slightly more specific about the meaning of the expression "how to harmonize this system and the Japanese judicial system." Translating this part very precisely, we get the following:


There are problems with entering into this protocol in regard to Japan's judicial system, etc. that require careful consideration. In particular, this includes whether or not the independence of the judiciary would be violated.


This problem is mentioned in paragraph 43 of the Fourth Periodic Report in a brief entry that merely repeats what was said in the Third Periodic Report.  The position taken in the Fourth Periodic Report shows no progress whatsoever.2


2 During the Committee's consideration of the Third Periodic Report the Japanese delegation responded as follows to the question of why it considered the independence of the judiciary as a reason for not ratifying. For example, [we must consider] how best to deal with the emergence of differences of opinion in respect of specific Japanese legal cases, particularly after judgment has been passed, or whether the presentation of our report based on the Protocol in respect of a current case, or one for which retrial has been requested, or to constitute the breach of the independence of the Judicature, or whether there would be abuse of the procedure for dealing with the communications from individuals. (From the record of the 1277th Meeting, response No. 8)


(2) Responses of the Japanese Government, the Supreme Court and the JFBA over the Past Ten Years


The Japanese government has taken no domestic initiatives concerning the problem of ratifying the Protocol. On the contrary, it has repeatedly given the following pattern of answers in response to queries during sessions of the National Diet posed by parliamentarians asking for ratification.


"We are not without our doubts that this is an effective system." (1986)


"We want to study the situation concerning its operation in various countries because there are problems, including whether it would function as an effective system and the relationship with domestic law, for example, the relationship with the independence of the judiciary." (1988)


"There is a need to study the matter, giving attention to the question of whether or not it is effective and its relationship with the domestic system of laws, for example, the judicial system, etc." (1990)


"There is a need for careful consideration on the relationship with independence of the judiciary, relationships with the system of appeals and other aspects of the judicial system. There is a possibility of abuse of the system, and we cannot be certain that, given the situation in Japan, that cases could be thoroughly tried." (1991)


"We are really going to the utter limit, working all the concerned government agencies to find out where there are problems with this in domestic law, sometimes including the Constitution." (1992)


After the examination of the Third Periodic Report, similar responses were repeated. For example:


"We still have not found adjustment in this regard with the independence of the judiciary within Japan." (1994)3


3 During the examination of the Third Periodic Report, Committee members tried to persuade the Japanese government as follows:


... most of the countries, have acceded to either regional or universal optional procedure for the protection of human rights whereby they allow communication or individual positions. No problem was created. Normally, these mechanisms take over when the local remedies have exhausted, provided that are available not for long. Therefore I do not think that this [that it might affect the judiciary] is not justification. (Mr. Mavrommatis, Cyprus; 1277th Meeting)


I do not see the shortcomings and negative impact on the judicial system unless the problem is linked to the problem of remedies, which I referred to earlier, because, in that case, certainly the one certain communication could be sent claiming that the remedies are unreasonably prolonged in the country, and that would affect the judicial system. But that would lead to an improvement of the judicial system. It would probably point out that there are problems, and that amendments in the legislation are needed. I say that with sympathy, because in my country we have, in many respects, the problem of the length of the judicial procedures. And we are trying as far as possible to speed them up, but it is not easy, and the support of international bodies as the Human Rights Committee may be good in this respect. (Mr. Pocar, Italy; 1277th Meeting)


Many states have taken the step of ratifying the Optional Protocol and in no way should it be seen to undermine the independence of the standing of the judiciary in the state concerned. (Ms. Evatt, Australia; 1277th Meeting)


Nearly ten years ago, the Japanese government began asserting a position that it has repeated ever since, that there is a need to investigate the relationship of the Protocol with the independence of the judiciary. It has not yet revealed any information about the results of this investigation. During all this time, however, the Supreme Court, which has the greatest responsibility for the independence of the judiciary, has enunciated no dissent with regard to the ratification of the First Optional Protocol. During this time the JFBA, which is the only national organization to which membership is compulsory for all Japanese attorneys, has repeatedly declared that the Protocol poses no problem in regard to the "independence of the judiciary," and indeed the JFBA has been an active advocate of ratification.4,5


4 Following is a summary of that report.


First, it is completely undisputed that the views of the Human Rights Committee do not invalidate conclusions reached by Japan's courts, nor do they have any direct, legal binding force on domestic courts. Therefore, ratification of the Protocol does not amount to establishment of a higher court or extraordinary tribunal, as prohibited by the Constitution (Article 76 paragraphs 1 and 2).


Secondly, any differences in conclusions that arise between domestic courts and the Human Rights Committee would not in any way constitute an undue infringement of the independence of the judiciary. It can naturally be presumed that judgements of the Human Rights Committee formed in accordance with international standards that differ from those of domestic courts will be handed down in accordance with the system of individual communications. It is perfectly natural in democratic societies for organizations or individuals to express their own opinions concerning judgements made in their own countries or in foreign countries. To do so does not constitute a violation of the independence of the judiciary. The International Labor Organization has long issued opinions and recommendations about individual cases. It issues views and recommendations in accordance with its charter about interpretations of ILO Convention n. 87 and ILO Convention n. 98, through its Committee of Experts on the Application of Conventions and Recommendations, Committee on Freedom of Association, etc. These views and recommendations are taken by Japanese courts as "views worthy of serious consideration concerning the current ILO interpretations of these conventions." (Oita District Court, Judgement of January 19, 1993, Hanrei Jiho No. 1457, pp. 36, 49.) This practice is not considered to be a violation of judicial independence.


Thirdly, the concept of independence of the judiciary according to the Japanese Constitution was designed as a system for protecting the balance of powers in relation to the executive and legislative branches of government. If a State party to the Protocol has an obligation under international law to abide by the views of the Committee, the independence of the judiciary still remains intact, unless the executive or legislative branches demand that the judiciary make a change in an individual decision on the basis the Committee's view.


5 It need hardly be repeated that the Committee acting under the First Optional Protocol does not consider communications until all possible domestic remedies have been exhausted, the only exception being where the application of the remedies is unreasonably prolonged. (Article 5 paragraph 2(b)) The Protocol is applied by the Committee according to this principle, which is in accord with the principle in international law requiring exhaustion of domestic remedies. If the Japanese government claims that there are problems with such provisions of the Protocol or with the way the Committee deals with individual communications, it should state this position clearly to the people of Japan and at the venue of the Committee's periodic examinations of its reports. Instead, it has endlessly repeated a stock phrase about "the relationship with the independence of the judiciary." It has offered no specific arguments.


Clearly the government is not making efforts to solve the problem. Its claim can be evaluated as nothing more than an excuse.


(3) Recent, Noteworthy Response by the Japanese Government


  As described above, the Japanese government has for the past approximately ten years consistently maintained there is a possibility of some problem arising with relation of the Protocol to the independence of the Japanese judiciary, but it has given essentially no specifics concerning this claim.


On June 9 of this year, however, in a written response to a questionnaire from a member of the House of Councilors, the government of Japan gave an explanation summarized below.6


6 Written questionnaire (Shitsumon Shuisho) submitted by a member of the House of Councilors, Shoji Motooka, dated May 7, 1998, to the Prime Minister, concerning ratification of the First Optional Protocol to the Covenant.


Accordingly, on June 9, 1998, the Prime Minister sent a letter to the President of the House of Councilors. This is the answer to that questionnaire.


(a) The possibility exists of violation of judicial independence


The First Optional Protocol provides that if domestic remedies have been unreasonably prolonged, the Human Rights Committee, as provided for by the Protocol, can consider a communication without domestic remedies having been exhausted. It is therefore possible for the Committee to indicate a specific judgement concerning a case whose trial is actually in progress in Japan. Even given that a view of the Committee is not legally binding, it could conceivably have an effect on the hearings and decision of the judges in the case. This constitutes a conceivable infringement on judicial independence.


(b) Doubts With Respect to the Decisions of the Committee Concerning Admissibility


  In conjunction with item (a) above, there are doubts concerning the decisions of the Human Rights Committee on whether domestic remedies were exhausted and whether domestic remedies had been unreasonably prolonged in the following two cases of communications from individuals received by the Committee.


(i) In its views (sic) concerning Communication No. 131/1982, N.G. v. the Oriental Republic of Uruguay, adopted on July 25, 1984, the Committee gave a decision recognizing the admissibility of the communication despite the fact that court hearings were under way for the case in that country.


(ii) In its views concerning Communication No. 417/1990, Manuel Balaguer Santacana v. Spain, adopted July 15, 1994, the Committee upheld its original decision approving admissibility on March 25, 1992 on the grounds that the original decision of the Spanish court, which did not come until several years after the suit had been filed, had been unreasonably prolonged.


(c) Other Problems


(i) Lacking the prohibition of a double jeopardy provision, there is no check against the possibility of abuses, and, therefore, the possibility of abuses cannot be denied.


(ii) There is a possibility of causing confusion within the remedy procedures in Japan's present civil procedures.


D. Position of the JFBA


(1) Rebuttal of the JFBA to the Recent Response by the Japanese Government


These claims by the Japanese government are either based on misunderstandings or they are simply not reasonable.


(a) The Claim of Potential Infringement on Judicial Independence


The Japanese government argues there is a possibility that the Committee may issue a judgement concerning a specific case that is pending, which presents the possibility of infringement on judicial independence.


  The only case, however, in which there is such a possibility of the Committee issuing a judgement while a case is pending in the domestic courts is when the case has been unreasonably prolonged. Moreover, according to precedents indicated by the Committee, it is required that such delays not be due to the complexities of the case itself or due to the fault of the alleged victim (View on Communication No. 336/1988). If a case is pending, but has been unreasonably prolonged for reasons other than the responsibility of the alleged victim or the complexity of the case, it can be taken as established that the method of redress is not really functioning, and, therefore, a remedy for the violation of the rights of the alleged victim is in fact impossible without a remedy from an international body. The Japanese Constitution guarantees judicial independence to insure adequate human rights remedies without interference by the other branches of government. This being the case, we can find no reason to continue to give exclusive priority to independence of the judiciary when the courts are not really functioning as means of human rights remedies.


(b) Doubts Cast on the Decisions of the Committee Concerning the Admissibility of Communications


The Japanese government has indicated doubts concerning the decisions of the Committee in recognizing the admissibility in the two, above-mentioned communications. This view of the government appears to be the result of a misunderstanding, because these do not at all constitute reasonable doubts.


(i) Communication No. 131/1982 concerns a case in which the alleged victim claims he was arrested and detained for eight months, during which time he was held incommunicado and tortured. Indeed criminal procedures over the reasons for the arrest and detention were pending, but in view of the request for habeas corpus and other measures that were taken, the Committee found that the effective remedies that were actually available had been exhausted. The Committee had asked the government of Uruguay whether or not other effective domestic remedies remained available to the alleged victim, but received no clear answer.


It is standard practice for the Committee to ask the opinion of the government of the State Party to the case whether all the domestic remedies available to the alleged victim have been exhausted. In this case, if the Uruguayan government had presented persuasive information that domestic remedies had not been exhausted, it is entirely possible that the communication would not have been found admissible. If a communication involving Japan arose, the government of Japan, too, would be given the opportunity to present information about the domestic remedies available. In this case, the government of Uruguay did not make adequate use of that opportunity. The Japanese government has entirely missed the essential point of the case by arguing that the Committee's judgement about whether domestic remedies had been exhausted was dubious.


(ii) Communication No. 417/1990 was filed on behalf of a man and his daughter, who had been one-year old at the time he began judicial proceedings seeking parental rights and access to his daughter. Over five years had passed since he began these procedures, without any judicial decision being indicated.7 Noting that part of the responsibility for the prolongation of the procedures lay with the man himself, the Committee found the case admissible because of the nature of the claim, which involved a parent's right to visit his child; the fact that he was unable to visit his child while the litigation was pending; and, most especially, that it was unreasonable to expect to wait for the final judgement concerning visitation rights. The Committee recognized that this was a situation in which "application of the remedies is unreasonably prolonged," as stated in article 5 paragraph 2(b) of the Protocol.


Although the Committee recognized that the delay in the judicial procedures was partly the fault of one of the alleged victims (the father), it decided that there was urgency in this case because the problem of a father's access to his child is of more serious concern to the child, (the other alleged victim) than the problem of the rights of the father, and, because the child, who is growing day by day, has the right to receive the father's love in the process of growing. Given this situation, the fact that over five years had elapsed from the time the lawsuit asking for visitation rights had begun when the child was one-year old, there is no problem with the Committee having decided that the situation constituted a case that had been unreasonably prolonged.


7 The man brought suit in 1986 seeking the right to visit with his one-year-old daughter, who lived apart from him. In 1987 he was granted access to his daughter once a week, as a provisional measure. This measure, however, was suspended in 1990, but the Spanish court still did not hand down a judicial decision concerning parental rights or visitation rights, nor had it done so by 1992 after more than five years had elapsed since the filing of the suit, when the Committee adopted a view recognizing admissibility. The man had appealed the suspension of the temporary visiting right, but this appeal was rejected in 1992 on the grounds that the suit concerning parental and visitation rights was pending.


(c) Other Problems


It is a requirement for admissibility of a communication that the right of communication not be abused (First Optional Protocol, article 3) and the principle of prohibition of double jeopardy is understood to also be a requirement for the admissibility of a communication (View of Communication No. 72/1980).8 Therefore, the Japanese government has raised an utterly groundless argument that the possibility of abuse exists because there is no prohibition of double jeopardy.


It is not clear what the government has in mind its expression of concern that confusion may be brought upon the system of remedy in Japan's legal procedures, but because it is a basic principle that the Committee's views are only given when domestic remedies have been exhausted, there is no a possibility of such confusion occurring. This claim by the government appears to be based on some sort of misunderstanding.


8 This was a case in which communications were made in 1974 and 1976 by a man concerning his tax assessment. The claim was judged to have not fulfilled the Protocol's conditions for admissibility and to be devoid of substantiation. The Committee concluded that the claim constituted an abuse of the right of submission under article 3 of the Optional Protocol (incompatibility with the provisions of the Covenant).


(2) The Necessity of Ratification of the First Optional Protocol


It can be seen from the records of the European Convention on Human Rights and the Inter-American Commission on Human Rights that the procedures for receiving communications from individuals specified by the First Optional Protocol to the Covenant, which enable victims of human rights violations themselves to bring complaints before an international body, constitute an effective system for securing human rights guarantees. None of the objections that the Japanese government has raised concerning the possibility of violation of the independence of the judiciary, etc. are reasonable. In view of the fact that at the time of its ratification of the Covenant in 1979 the National Diet appended a resolution saying that it would actively promote consideration of the First Optional Protocol with a view toward ratification, this protocol should be ratified immediately.


Section 5: Problems with Ratification of the Convention against Torture

A. Conclusions and Recommendations


The Japanese government should ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter, the Convention against Torture) with no reservations, including article 22, which provides for a system of communications from individuals.


B. Subjects of Concern and Recommendations of the Human Rights Committee


An important item among the recommendations of the Committee at the close of its examination of the Third Periodic Report was that Japan should ratify the Convention against Torture. (Comment, paragraph 16) Upon her visit to Japan in January, 1998, the UN High Commissioner for Human Rights Ms. Mary Robinson also strongly urged the Japanese government to ratify this convention.


C. The Government's Response and its Fourth Periodic Report (paragraph 44)


The government of Japan explains in its Fourth Periodic report the reasons why Japan has been delayed in ratifying the Convention against Torture as follows:


The Government fully understands the purport of the Convention to globally suppress cruel and inhuman acts of torture by governments. The Government is in the process of examining the details of the Convention and considers that further careful examination is necessary for its effectiveness.


D. Position of the JFBA (1) Obstacles to Ratification


The Convention against Torture went into effect in June, 1987. The present number of States Parties has reached 102 countries. In the Asian region, the Republic of Korea and the People's Republic of China have ratified this convention.


From the dialogue that the JFBA has had with the Ministry of Foreign Affairs, we gather that the doubts of the government about its "effectiveness" as expressed in its report concern the universal jurisdiction provided for in article 7. Under this provision, for example, if a Japanese tortures a Chinese in Japan and then goes to the Philippines, he could then receive punishment in the Philippines.


On May 19, 1997 the JFBA invited Mr. Bent Sorensen to its Fourth Human Rights Seminar. Mr. Sorensen is a member of both the Committee against Torture, which is established by the Convention against Torture, and the European Committee for the Prevention of Torture. While Mr. Sorensen was in Japan, he submitted a request to the Human Rights and Refugees section of the Foreign Ministry for early ratification of the convention. At that time, the Foreign Ministry mentioned the universal jurisdiction of article 7 as an obstacle to ratification.


The Foreign Ministry has raised doubts concerning the question of how this provision will be applied and, in the case of torture that occurred in another country, how to obtain evidence from that country.


As Mr. Sorensen correctly points out, however, universal jurisdiction has a symbolic meaning to the convention, but there have been no reports of its having been exercised, so the effectiveness of this article cannot be considered a valid reason for the Foreign Ministry to continue to put off ratification. When she came to Japan in January, 1998, the UN High Commissioner for Human Rights Ms. Robinson visited the Ministries of Justice and Foreign Affairs and asked for early ratification of the Convention against Torture. The reply of the government at that time was, "[w]e are conducting a forward-looking consideration."


(2) Significance of Ratification


This convention contains a great many provisions of significance to the improvement of the situation of persons under detention in Japan, including consideration of government reports (article 19), the systematic review of interrogation rules, etc. (article 11), the education of public officials for prevention of torture, etc. (article 10) and affirmation of the principle of non-refoulement of refugees (article 3). Ratification by Japan of this convention will have great significance in that it will encourage ratification by other countries in the Asian region that have delayed doing so.


Section 6: Situation of the Handling and Prevention of Incidents of Violence by Law Enforcement Agencies

A. Conclusions and Recommendations


There are no effective means of remedy in cases of violence by law enforcement agencies.


(1) Attorneys, acting as prosecutors in the system for requesting indictment of police officers or other public officials provided for in the Code of Criminal Procedure (Articles 262-269), should be given more authority.


(2) When a prosecution inquest committee is held for a second time on a case for which a prosecutor's office has previously decided not to issue an indictment pursuant to a prosecution inquest committee's recommendation of indictment, and the second inquest committee again issues a resolution finding the case fit for indictment, the prosecutor's office should be obligated to issue an indictment in the case.


(3) An effective method of remedy for violence by law enforcement agencies which is independent of law enforcement agencies should be established.


B. The Government's Response and its Fourth Periodic Report (paragraphs 68-69)


Cases of violence or ill-treatment by law enforcement officials engaged in investigations, etc. are extremely infrequent. Such cases should be grounds for strict disciplinary measures taken by the officials' superiors, as well as be subject to criminal procedures.


C. Position of the JFBA


(1) Abuse of authority by public officials (police officers, prosecutors, etc.) is by no means rare. Every year, hundreds of these officials become the objects of requests to the courts for trials under Article 262 of the Code of Criminal Procedure after prosecutors refuse to issue indictments in response to formal accusations or complaints. In 1994, for example, applications for trial were made against 442 public officials. The number in 1995 was 700; in 1995 and 1996 it was 241. Between 1949, when this system was instituted, and 1996, applications for trial were filed against a total of 14,647 public officials, but of all these cases, applications were accepted in only 17, involving 18 officials (of whom 16 were police officers, one a prison staff member and one a judge). Of these 17 cases brought to trial, leaving aside the two that are now pending, convictions were obtained in seven; there were seven acquittals; and one case was dismissed because the statute of limitation had run for a legal action. Thus, only a little more than 0.1% of the applications for trial were acted upon, and in a little less than 0.05% of these cases were convictions obtained.


(2) On the basis of these low rates for admission of trial applications and for conviction, the government asserts that public officials carry out their duties as they are supposed to and that prosecutors' decisions not to indict are also proper, but this view misinterprets the actual situation. Reports from attorneys who have represented accusations or complaints in these cases indicate that police conceal evidence and that both police and prosecutors conduct lackluster investigations in these cases in order to help policemen avoid punishment, or they conduct improper investigations, pointing to evidence of crimes as proof that the actions taken by police were justified. Other reports indicate that even when criminal trials are initiated, police are hostile toward attorneys acting as prosecutors, uncooperative and act to obstruct the investigation, while accused police officers enjoy the full support of the entire police organization.


(3) Prosecutors are required to honor resolutions from prosecution inquest committees by conducting reinvestigations. In many cases, however, these reinvestigations are inadequate, inevitably leading to a decision not to indict.


In cases where the prosecutor's office does not indict following an investigation and a second application is made to a prosecution inquest committee, resulting in another resolution finding the case fit for indictment, the lack of a requirement mandating that the prosecutor's office issue an indictment so that the responsibility for a final determination lies with a court can only be taken as evidence that the system as it now stands lacks effectiveness.


Section 7: Institutions for the Protection of Human Rights

A. Conclusions and Recommendations


The institutions for the protection of human rights that form the heart of the mechanism for human rights protection in Japan have no independence from the government. The Civil Liberties Commission system is supported by private volunteers. Membership in the commission is largely regarded as honorary. Many of the members are of advanced age and there are too few women. These commissions are not able to deal adequately with cases of human rights violations, which can be difficult cases because of their complexity, the highly technical nature of the offence, or the reprehensible nature of the offence.


The government should without delay begin considering the establishment of a national human rights institution independent of the government in accordance with the principles relating to the Status of National Institutions for the Promotion and Protection of Human Rights (Paris Principles; General Assembly Resolution 48/134).


B. The Government's Response and its Fourth Periodic Report (paragraphs 12-17)


In December, 1996, the Japanese Diet adopted a policy of raising public understanding of the principle of respect for human rights, establishing a Law for the Promotion of Policies for the Protection of Human Rights, article 2 of which requires the government to promote policies for remedies to victims of human rights violations. Articles 3 and 4 of this law established a Commission for the Promotion of Human Rights Protection. In May, 1997, the first meeting of this commission considered basic points pertaining to (1) the general promotion of its policy and (2) making that policy more substantial. The commission is scheduled to deliberate on the first of these items from May, 1997 to March, 1998, and the second, from April, 1999 to March, 2002.


Concerning mechanisms for the protection of human rights, the Japanese government in its Fourth Periodic Report merely makes superficial comments about human rights counseling, investigating human rights violations and a system of counselors for children's rights.


C. Position of the JFBA


(1) Japan's Institution for Human Rights Protection


Japan's human rights protection institution consists of the Civil Liberties Bureau of the Ministry of Justice and, below that, its regional, legal affairs bureau offices. The Civil Liberties Commission system was established to supplement this. This system, however, has the following problems.


(a) The positions of officials in charge of the Civil Liberties Bureau who have responsibility for government action on human rights protection (the heads of the General Affairs and Research sections, in accordance with Article 1, etc. of the Ministry of Justice Organizational Ordinance) are filled by prosecutors, while many of the regional, legal affairs bureau staff also have significant other duties, namely responsibility for family registration and other registry duties. If the point of human rights protection is protection against government abuses, the human rights protection mechanism should be made independent of governmental operation.


(b) Civil Liberties Commission members are volunteers who are selected on the basis of recommendations from city or town mayors with the views of bar associations heard, and then appointed by the Minister of Justice. In fact, however, selection of commission members is done by local prominent persons and the position is regarded as primarily honorary. The average age of members is over 60, with women comprising only about 20% of the membership. These commissions are not able to deal adequately with cases of human rights violations, which can be difficult cases because of their complexity, the highly technical nature or the pernicious nature of the human rights violations.


(c) Measures taken against human rights violations are limited to the issuing of recommendations to the offending parties, talking to them, etc. There is no legal power to check human rights abuses.


(d) A nationwide survey of "Dowa districts" (communities of the Burakumin) conducted in fiscal year 1993 by the Management and Coordination Agency indicated that in only 0.6% of cases of human rights violations was the problem brought to a legal affairs bureau or Civil Liberties Commission member. This clearly shows that the system is not functioning to combat human rights offenses.


(e) The "children's rights specialist" system established by the Ministry of Justice in fiscal year 1996 is supposed to be a monitoring institution dedicated to the interests and rights of children, but it is not an impartial, third-party institution. Appointments are made according to the same pattern as for human rights entities described above in subsection (a). The process of selection of commission members is like that described in (b) above and it is doubtful that it has sufficient functions to protect the rights and interests of children. Indeed in June, 1998, the Committee on the Rights of the Child stated in its general comments concerning the First Periodic Report of the government of Japan as follows:


The Committee notes that under the present circumstances the system of monitoring by Children's Rights Commissioners lacks independence from the government and the competence or authority necessary to assure complete and effective monitoring of children's rights. (Item 10) With this, the Commission recommended that Japan take measures necessary for the establishment of an independent monitoring mechanism.


(2) The Law for the Promotion of Measures for Human Rights Protection and Activities of the Commission on the Promotion of Measures for Human Rights Protection.


This commission has the following problems. There are only two functions of the Law for the Promotion of Measures for Human Rights Protection and the commission established under it, i.e., (1) promotion of educational and public information policies to deepen the people's understanding of the idea of respect for human rights and (2) promotion of policies concerning remedies for victims of human rights violations. It does not present a new framework for ensuring human rights to take the place of Japan's institution for the protection of human rights, which has the above-mentioned problems. In view of the fact that a new framework for human rights protection independent of the government is needed, not much can be expected of this Law for the Promotion of Measures for Human Rights Protection and the commission it established.


(3) Procedures for Human Rights Remedies by Bar Associations


(a) Investigations of Human Rights Violations by the JFBA


In addition to the above-described national system for human rights remedies, the JFBA conducts investigations of human rights violations on the basis of requests from alleged victims, and if it finds that the situation warrants, it issues requests, etc., to offenders, on the basis of article 1 of the Attorneys Law and article 72 of the JFBA Articles of Association. From April, 1997 to March, 1998, 102 requests for investigations were received. In addition, the respective regional bar associations similarly receive investigation requests.


Many of these requests concern institutions of detention, including prisons, detention centers, police detention centers and mental hospitals. The police and other authorities, however, are uncooperative with investigations by bar associations. This lack of cooperation sometimes extends to refusal to accept recommendations issued when it has been determined that human rights violations have occurred.


(b) Assistance to Persons in Mental Health Facilities


Some regional bar associations have begun offering counseling services by attorneys to persons detained in mental hospitals. The system is hindered, however, by a lack of financial assistance from the government.


(4) In 1993, the United Nations General Assembly adopted General Assembly resolution 48/134, "Principles relating to the Status of National Institutions for the Promotion and Protection of Human Rights." (Paris Principles; General Assembly Resolution 48/134) The Paris Principles provide domestic human rights institutions with specifics concerning the authority and responsibilities of domestic human rights institutions, composition and guarantees of independence and pluralism, methods of operation and additional principles on the status of committees having quasi-jurisdictional competence. In 1995, the Centre for Human Rights of the United Nations Secretariat issued its Handbook for the Strengthening of National Institutions for the Protection and Promotion of Human Rights, which provides concrete information on the significance and functioning of national human rights institutions.


In view of the inadequacy of the organization and operation of Japan's institutions for the protection of human rights as described above, the government of Japan should without delay begin considering the establishment of a national human rights institution independent of government institutions, in accordance with the above-mentioned General Assembly resolution and handbook.


Section 8: The United Nations Decade for Human Rights Education

A. Conclusions and Recommendations


(1) The government should introduce a curriculum of human rights education in the schools in accordance with article 29 of the Convention on the Rights of the Child, using translations of publications about human rights from the United Nations and elsewhere.


(2) The government should include judges, attorneys, legal trainees and convicts among the objects of its national plan of action. Concrete educational materials for human rights educational programs should be prepared by translating human rights education manuals published by the United Nations and taking into account the views of NGOs. This material should be used for human rights education programs in schools, society at large, industry and for persons engaged in specially designated occupations.


B. The Government's Response and its Fourth Periodic Report (paragraphs 18-19)


(1) In December, 1996, the government adopted the Law for the Promotion of Measures for Human Rights Protection, the stated objectives of which were to "promote policies for education and public information to deepen understanding among the people of the idea of respect for human rights." This law established the Commission on the Promotion of Measures for Human Rights Protection, which is scheduled to issue a basic document on general promotion of these objectives in March, 1999.


(2) In July, 1997, the government issued a domestic action plan for the United Nations Decade for Human Rights Education on the basis of the United Nations Action Plan for the decade.


C. Position of the JFBA


(1) Human Rights Education in Schools Japanese schools do not offer specific instruction in human rights as provided for by the Universal Declaration of Human Rights, the Covenant and other United Nations human rights documents. In May, 1998 the Committee on the Rights of the Child in its consideration of the First Periodic Report of the government of Japan under the Convention on the Rights of the Child stated that it was concerned that Japan has not taken adequate measures to introduce a systematic school curriculum of human rights education in accordance with article 29 of the Convention on the Rights of the Child.


(2) Human Rights Education for Persons Involved in the Administration of Justice and Law Enforcement Officials


The Japanese government provides no systematic human rights education based on the Universal Declaration of Human Rights, the Covenant or other human rights documents for judges, prosecutors, lawyers and other persons involved in the administration of justice, nor to police personnel, prison staff members, immigration officers or other law enforcement officials. Similarly there is no such human rights education for legal trainees conducted under the direction of the Supreme Court after they have passed the National Bar Examination and entered into formal training for the legal professions.


(3) Problems with the Domestic Plan of Action


(a) The domestic plan of action enumerates a variety of persons engaged in specially designated occupations as part of its plan of "promoting human rights education to every segment of society" (e.g., employees of prosecutors' offices, correction facilities, rehabilitation facilities, immigration authority workers, teachers, persons involved with social education, medical personnel, welfare personnel, police officers, public officials, persons in the mass media). One NGO offered its view that human rights education should be provided to all persons involved in the administration of justice rather than solely the personnel of prosecutors' offices, meaning that judges and attorneys would also be included. The final action plan, however, continues to use the designation "employees of prosecutors' offices," thereby failing to include judges and attorneys. It also neglects to specify human rights education for legal trainees and convicts.


(b) The plan provides for promotion of human rights education through four types of programs: 1) in schools; 2) in industry; 3) in society at large; and 4) for persons engaged in specially designated occupations. It does not, however, provide the preparation of human rights educational material specifically for schools or persons engaged in specially designated occupations. Instead, it merely uses abstract phrases about "promoting," "thoroughly expanding" and "conducting" human rights education. In order to make it possible to confirm and verify the content and quality of this human rights education, it is necessary to prepare specific human rights educational materials by translating human rights educational manuals published by the United Nations for the use of all persons involved in human rights education.


(c) The domestic plan of action provides for an implementation that reflects the results of the deliberations of the Commission on the Promotion of Measures for Human Rights Protection. It is to be hoped that the commission will give consideration to the problems pointed out above in subsections (a) and (b).


Chapter 2: PROBLEMS OF FOREIGNERS AND MINORITIES

Section 1: The Rights of Koreans and Minorities living in Japan

A. Conclusions and Recommendations


With respect to foreigners living in Japan, most prominently people of Korean origin, the Japanese government has not recognized these individuals as minorities for purposes of article 27 of the Covenant. By not recognizing and by neglecting their right to "enjoy their own culture, to profess and practice their own religion, or to use their own language," the Japanese government is in violation of article 27, and corrective measures must be taken immediately.


B. Subjects of Concern and Recommendations of the Human Rights Committee


In "Principal Subjects of Concern," the title of section D of its comments adopted after examining the Japanese government's Third Periodic Report, the Committee clearly expressed its concern, stating in Comment paragraph 15 that "[t]he Committee notes with concern the exclusion of Koreans from the Government's concept of minorities. This is not justified by the Covenant, which does not limit the concept of minority to those who are nationals of the State concerned."


C. The Government's Response and its Fourth Periodic Report (paragraphs 208-211)


In its Fourth Periodic Report, with respect to article 27 of the Covenant (rights of persons belonging to minorities), the government discusses only "Policies Relating to the Ainu People." There is no mention whatever of foreign citizens living in Japan, most prominently people of Korean origin, who constitute an existing minority in Japan.


This absence indicates that even now the Japanese government does not include resident Koreans and other foreigners in its concept of "persons belonging to minorities" covered by article 27 of the Covenant. With respect to the Committee's comments referred to above, there have been, of course, no specific measures taken at all.


D. Position of the JFBA


According to figures showing the number of foreigners registered in Japan as of the end of December 1996, there were 657,159 persons listed as possessing Korean citizenship. However, there are also about 200,000 persons of Korean origin who possess Japanese citizenship as a result of naturalization. There are thus over 850,000 persons who are members of the Korean minority in Japan. Regardless of their citizenship, as persons belonging to an ethnic minority covered by article 27 of the Covenant, these men and women are persons possessing "the right to enjoy their own culture, to profess and practice their own religion, or to use their own language."


The Japanese government, with respect to its concept of "persons belonging to a minority," has selectively indicated only the "Ainu People," who possess Japanese citizenship. But this constitutes a clear violation of article 27 of the Covenant, whether by virtue alone of its disregard of the Korean minority living in Japan, or because of its disregard as well of the Committee's general comment 23 on the rights of minorities, which states with respect to the latter that "[j]ust as they need not be nationals or citizens, they need not be permanent residents." (paragraph 5.2)


Thus, the Japanese government's position with respect to its report on article 27 of the Covenant is revealed, first of all, in the fact that it is not attempting positively to correct a situation in which many resident Koreans have difficulty expressing their ethnicity by using their ethnic names publicly in their lives because of obstacles such as discrimination by law and societal discrimination based on ethnic prejudice. Secondly, the government's position is shown in the fact that the government to this day has not even attempted to carry out positive measures to guarantee systematically minority education, despite the past, outrageous policy under Japanese colonial rule of converting Koreans into Japanese imperial subjects, through which policy resident Koreans were denied their language, culture and ethnic names. Although the thrust of general comment 23 is clear--that positive measures are required in order to guarantee minority rights (paragraph 6.2)--the Japanese government has done nothing to carry out its duty.


Section 2: The Duty to Carry the Certificate of Alien Registration at All Times (Articles 12 and 26 of the Covenant)

A. Conclusions and Recommendations


The imposition on permanent and long-term, foreign residents of the duty to carry a certificate of alien registration at all times, as well as the imposition of a criminal penalty for violations, are both contrary to articles 12 (freedom of movement) and 26 (equality before the law) of the Covenant. The Japanese government should immediately abolish this system.


B. Subjects of Concern and Recommendations of the Human Rights Committee


The Committee noted in Comment paragraph 9 that "[t]he requirement that it is a penal offence for alien permanent residents not to carry documentation at all times, while this does not apply to Japanese nationals, is not consistent with the Covenant."


Moreover, in Comment paragraph 17, the Committee stated that "[a]ll discriminatory laws and practices still existing in Japan should be abolished in conformity with articles 2, 3 and 26 of the Covenant."


C. The Government's Response and in its Fourth Periodic Report (paragraph 27)


Since the above-mentioned comments were published, no specific measures have been taken. Again, before the comments were made, when the Lower House's Legal Affairs Committee in the Diet was discussing amendments (which came into force on January 8, 1993) to the Alien Registration Law, it was stated in a supplementary resolution that, "having considered the way in which several systems should exist to respect the human rights of foreigners, and based on the results of this, appropriate measures should be taken speedily upon the expiration of five years from the entry into force of this legislation." Until today, however, there have been no specific improvements made in accordance with this resolution. According to the Fourth Periodic Report, "[a]n extensive review of the 'Alien Registration Law' including the obligation described above [to carry documentation at all times] is currently underway by the Government." (paragraph 27) It is impermissible, however, that human rights violations be left to go on indefinitely.


D. Position of the JFBA


The fact that there is an obligation to carry the Certificate of Alien Registration at all times, and that violations are criminally punishable by a fine of less than 200,000 Japanese yen (Alien Registration Law, art. 18-2, paragraph 4), imposes an excessive burden on foreigners. Especially with respect to those foreigners, such as Koreans, who are permanent residents or settled in Japan and whose identity and residence can be determined as easily as those of Japanese nationals, the requirement of carrying this specific documentation at all times is not reasonable, and violates article 26 of the Covenant. Also, with respect to freedom of movement, there is a violation of article 12 of the Covenant. The system in question must be immediately abolished.


Section 3: Problems in the System of Re-entry Permits (Article 12 of the Covenant)

A. Conclusions and Recommendations


The application of the re-entry permit system of the immigration control law to permanent residents, such as Koreans, is an infringement of the right, protected by article 12 of the Covenant, to leave and return to one's own country. This practice should therefore be corrected immediately.


B. Subjects of Concern and Recommendations of the Human Rights Committee


The re-entry permit system is not specifically referred to in the comment of the Committee mentioned above. However, Comment paragraph 9, the Committee expresses its concern about the continued existence in Japan of certain discriminatory practices against social groups, such as Korean permanent residents. The re-entry permit system is one such human rights violation.


C. The Government's Response and its Fourth Periodic Report


The government has taken no measures whatsoever with respect to this problem and there is no mention of the issue in the Fourth Periodic Report.


D. Position of the JFBA


Article 12, paragraph 2 of the Covenant provides that "[e]veryone shall be free to leave any country, including his own." Paragraph 4 of the same article provides that "[n]o one shall be arbitrarily deprived of the right to enter his own country."


However, article 26 of the Immigration Control and Refugee Recognition Act provides that only those foreigners who leave the country having obtained a prior permit to re-enter are allowed to re-enter Japan without losing their status of residence. The decision whether a prior re-entry permission will be granted or not is entrusted to the broad discretion of the Minister of Justice. If a foreign citizen leaves Japan without a re-entry permit, the previously existing status of residence is lost, and re-entry is not ensured. For this reason, for a foreign citizen whose base of living is in Japan, whether or not a re-entry permit will be granted becomes in effect a matter controlling whether or not the foreign citizen will be able to make a temporary trip outside of Japan.


Permanent residents, especially the great majority of resident Koreans, are people who were born and brought up in Japan, and plan to spend their entire lives in Japan. The fact that the Minister of Justice has the broad discretion over their re-entry permission essentially creates an onerous obstacle to their entering and leaving the country. Since the base of life activity of permanent residents exists in Japanese society, and because the "right to return to one's own country" can be understood as including the "right to return to one's country of permanent residence," permanent residents must have the right to leave and return to Japan freely. This broad discretion of the Justice Minister as regards re-entry permission is a violation of the "right to return to one's country."


For Koreans especially, the vast majority of whom have been born and brought up in Japan, and who in fact plan to make Japan the base of their entire life activity, Japan, rather than their country of citizenship, is their "own country" for the purpose of article 12 paragraph 4 of the Covenant. With respect to the "right to return to one's own country," there is no reasonable ground why they should be treated differently from those who possess Japanese citizenship.


However, quite recently there was a case involving this sort of Korean, born and raised in Japan, possessing the right of permanent residence. By reason of her refusal to be fingerprinted, she was denied a re-entry permit prior to leaving Japan. The Japanese Supreme Court did not apply the "right to return to one's own country" of article 12 paragraph 4 of the Covenant to this person's return to Japan. On the premise that the decision to grant or deny a re-entry permit lay within the broad discretion of the Justice Minister, the Court held that this broad discretion had not been exceeded, nor abused, thus the Justice Minister's decision to refuse a re-entry permit not unlawful. (Supreme Court of Japan, Judgement of April 10, 1998).


With respect to permanent residents, including Koreans, this kind of treatment by the Japanese government is clearly a violation of article 12 of the Covenant, and must be immediately corrected.


Section 4: Discriminatory Treatment in Connection with Post-war Compensation (Article 26 of the Covenant)

A. Conclusions and Recommendations


With respect to those former military service personnel and civilian employees of the military whose places of origin are former Japanese colonies, the refusal, because they no longer have Japanese citizenship, to provide benefits to them under the pension law or the Law for Relief of the War Wounded, Diseased and Bereaved is a violation of article 26 of the Covenant. The Japanese government must immediately cease discriminating on the basis of citizenship against such people, and must provide benefits to them under the pension law and the relief law.


B. Subjects of Concern and Recommendations of the Human Rights Committee


In paragraph 9 of its above-mentioned comments, the Committee indicated that "...persons of Korean and Taiwanese origin who serve in the Japanese Army and who no longer possess Japanese nationality are discriminated against in respect of their pensions."


C. The Government's Response and its Fourth Periodic Report


Since the foregoing comment, the government has continued to refuse to provide benefits under the Pension Law and the Relief Law to these people. Many of them are already of advanced age, have received no compensation whatever, and are dying one by one.


Suits have been brought by some individuals, but the courts have either not found unreasonable discrimination, or have held that a judicial remedy is not possible in the absence of legislation while pointing out the suspicion of unreasonable discrimination. In the end, all such suits have been dismissed (Supreme Court of Japan, Judgement of April 28, 1992; Tokyo District Court, Judgement of July 15, 1994; Osaka District Court, Judgement of October 11, 1995).


In the Fourth Periodic Report of the government of Japan, however, there is no information whatsoever concerning this problem.


D. Position of the JFBA


Individuals from former Japanese colonies who served in the Asia-Pacific war as military personnel or civilian military employees of the Japanese Empire were subject to the same military service as those persons who presently have Japanese citizenship. After the war, despite the fact that they had been victims of death, injury and the like, these people were unilaterally stripped of their Japanese nationality, regardless of their own wishes. Then, with the establishment of the "nationality clause" in the Pension and Relief Laws, those without Japanese nationality were not provided with any pensions. Thus the individuals from former Japanese colonies who were military service personnel or civilian employees of the military have until today received no compensation at all.


Article 26 of the Covenant, however, prohibits discrimination "in law or in fact in any field regulated and protected by public authorities." (General comment 18, paragraph 12) Moreover, in its views expressed in Gueye and Others v. France (Comm. No. 196/1985), the Human Rights Committee decided that differential treatment based on one's citizenship at the time a pension is to be paid constitutes discrimination prohibited by article 26 of the Covenant.


In consequence, the Japanese government's failure to apply the Pension and Relief Laws and its refusal to provide any compensation whatever to persons from former Japanese colonies who were military service personnel or civilian employees of the military on the ground that they do not presently possess Japanese nationality is clearly discrimination prohibited by article 26 of the Covenant. The discrimination in question must be immediately corrected.


Section 5: Problems Regarding the Status of Korean Schools (Articles 26 and 27 of the Covenant)

A. Conclusions and Recommendations


The Japanese government's lack of recognition of Korean school students and graduates as equivalent to Japanese elementary, middle, and high school students and graduates constitutes discrimination in violation of article 26 of the Covenant. Moreover, this inaction infringes upon minority rights and therefore constitutes a violation of article 27. The discriminatory treatment in question must be corrected immediately.


B. Subjects of Concern and Recommendations of the Human Rights Committee


There is no direct mention of Korean schools in the Committee's comments referred to above, but the Committee expresses explicit concern about discrimination against Koreans, as well as the lack of recognition of these individuals as a minority (Comment, paragraphs 9 and 15), and recommends that the discrimination be eliminated (Comment, paragraph 17).


C. The Government's Response and its Fourth Periodic Report


The government is attempting to do nothing to correct this problem. There is no mention of it in the Fourth Periodic Report.


D. Position of the JFBA


In all regions of Japan, there are Korean schools which have been established as legal entities for the purpose of transmitting and developing ethnic education in the minority culture, history, language, etc. The curricula of these schools are comparable to the education provided in Japanese elementary, middle, and high schools, as well as universities. Despite the fact that the education conducted has about the same subjects and the same content level as Japanese schools, the Japanese government does not consider these schools as coming under the provisions of article 1 of the School Education Law. Students and graduates of these Korean schools are not recognized as having the qualifications resulting from attendance at or graduation from corresponding Japanese elementary, middle, high schools or colleges, and are thus not permitted to take examinations certifying statutorily-based public credentials.


If we take universities, including colleges, as an example, a graduate of a Korean high school would not be recognized as having met the requirements for taking most Japanese university entrance examinations. Those universities which recognize such students as qualified to take entrance examinations include none of the 95 national universities, only 30 of the 57 municipal universities, and 220 of the 431 private universities. Although these universities recognize Korean school students' credentials for taking their entrance examinations, a Korean school student desiring to enter the national universities or the remaining municipal and private universities would either have to enroll in a Japanese correspondence or part-time high school while attending the Korean high school and acquire the credentials for taking the university entrance examinations by graduating from the correspondence or part-time high school, or pass a special examination set by the Ministry of Education and obtain a certificate of qualification to take university entrance examinations.


Recently some specific reforms are in evidence, such as equal treatment for Korean schools with respect to commuter passes for elementary and secondary school students, and concerning participation in athletic competitions among high schools. But despite the fact that there are no essential differences between Korean school students and graduates and those of Japanese schools, formal differences are used to deny the recognition of equivalent qualifications. This is simply discrimination in violation of article 26, and moreover, as it impedes minority education, it is a violation of article 27.


In December, 1997 the JFBA adopted an investigative report of its Human Rights Protection Committee on this matter. Based on this report, a document was issued to the government in February, 1998 recommending that this situation be speedily rectified.


Again, in June, 1998 the Committee on the Rights of the Child, in the opinion adopted following its examination of the First Periodic Report of the Japanese government, clearly expressed its concern about the unequal treatment being received by Korean children with respect to access to higher education,9 and recommended that any discriminatory treatment of minority children, including Koreans, be eliminated.10


The government must immediately correct discriminatory treatment which lacks any reasonable and objective grounds.


9 The Committee on the Rights of the Child, sessions 465-467 of May 27 and 28, 1998 (CRC/C/SR.465-467) examined the first periodic report of the Japanese government on the basis of a previously prepared list of questions. The Committee adopted an all-inclusive opinion, consisting of 48 paragraphs. In paragraph 13 of section C, "Principal Subjects of Concern," it was noted that:


The Committee is concerned that the general principles of non-discrimination (article 2), the best interests of the child (article 3) and respect for the views of the child (article 12), are not being fully integrated into the legislative policies and programmes relevant to children, in particular in relation to children from vulnerable categories such as those belonging to national and ethnic minorities, especially Ainu and Koreans, children with disabilities, children in institutions or deprived of liberty and children born out of wedlock. The Committee is particularly concerned about unequal access by children of Korean origin to institutions of higher education and the difficulties encountered by children in general in exercising their right to participate (article 12) in all parts of society, especially in the school system.


10 In section D, "Suggestions and Recommendations," paragraph 35, the Committee noted:


It is the Committee's view that further efforts must be undertaken to ensure that the general principles of the Convention, in particular the general principles of non-discrimination (article 2), the best interests of the child (article 3) and respect for the views of the child (article 12), not only guide policy discussions and decision-making, but also are appropriately reflected in any legal revision, judicial and administrative decisions, and in the development and implementation of all projects and programmes which have an impact on children. In particular, legislative measures should be introduced to correct existing discrimination against children born out of wedlock. The Committee also recommends that discriminatory treatment of minority children, including Korean Ainu children, be fully investigated and eliminated whenever and wherever it occurs. Furthermore, the Committee recommends the same minimum age for marriage of boys and girls.


Section 6: Procedures Governing Deportation of Foreigners (Articles 9 and 13 of the Covenant)

A. Conclusions and Recommendations


The procedure for deportation in Japan: (1) violates article 9 paragraph 4 of the Covenant, since a court hearing without delay following an administrative decision of detention is not ensured; (2) violates article 13 of the Covenant, since it cannot be said that in the deportation procedures there is a way to submit reasons against the propriety of the expulsion; (3) moreover, violates article 13 of the Covenant, since the detainee has no right of confidential communication with his/her counsel.


With respect to these matters, the government must take immediate corrective measures to bring its practices into conformity with the Covenant.


B. The Government's Response and its Fourth Periodic Report (paragraphs 150-152)


As yet, the government has taken no corrective measures at all with respect to these issues. In its Fourth Periodic Report, the government states that the grounds and procedures for the deportation of foreigners are governed by the Immigration Control and Refugee Recognition Act, and that they are administered based on this statute. It notes with respect to the deportation determination procedure that the three-stage preliminary procedure--based 1) on the findings of an Immigration Inspector, 2) an oral hearing by a Special Inquiry Officer, and 3) a final decision made by the Minister of Justice--has sufficient guarantees. Adding to this, the government explains that if de novo judicial review is requested, and if a suit is filed, the propriety of the administrative determination can be contested (paragraphs 150-152).


C. Position of the JFBA (1) In the case of a foreigner subject to deportation, he/she is detained in accordance with a prior order of detention, but a judge does not participate at all in this detention procedure. As already noted, the government's report asserts that there are sufficient guarantees in the three-stage preliminary procedures consisting of an Immigration Inspector, a Special Inquiry Officer, and the Minister of Justice. But all of these are simply procedures within the same administrative agency, internal to the Ministry of Justice. There is no judicial proceeding, nor is there any review by an impartial, third-party agency. In order for a foreigner to obtain a legal remedy completely separate from the procedures under the immigration statute, the individual must bring suit on his/her own initiative and submit reasons against the determinations of the Ministry of Justice. Individuals, however, are not instructed as to the existence of this kind of approach. If a foreigner does not file suit based on his/her own judgment, he or she will never encounter a judge.


Article 9 paragraph 4 of the Covenant is understood to apply not only to criminal proceedings, but also to proceedings governed by immigration control laws (General comment 8, paragraph 1). In the Japanese detention procedure, however, it must be concluded that the procedural guarantee of article 9 paragraph 4 of the Covenant, entitling the detainee to take proceedings before a court in order that " a court may decide without delay on the lawfulness of his detention" is lacking.


(2) Furthermore, while the above-mentioned three-stage preliminary procedure does exist, it is confined to an examination of the grounds for the deportation. For example, in a case where the Minister of Justice has denied renewal of the period of residence, the individual becomes an overstayer and is subject to deportation if that period of residence is exceeded. In the above-mentioned three-stage procedure, the question of whether the period of residence has been exceeded or not is examined, but it is not possible to contest the denial of renewal itself. As an exceptional matter special residence permission may, in the light of circumstances and as a matter of grace, be granted by the Minister of Justice, but this is not a reversal of the previous determination to deny renewal.


Whether or not the period of residence has been exceeded is in formal terms an obvious matter; there is no need for a special examination. In order to submit reasons against the denial of renewal itself, a lawsuit on the foreigner's own initiative is required, not this three-stage procedure. The foreigner may not know about this kind of method, or lacking either the opportunity to meet with, or the financial resources to retain a lawyer, the individual may not file suit and, unable to challenge the denial of renewal, be deported. In this respect, it cannot be said that the rights of aliens provided for in article 13 of the Covenant are being guaranteed effectively. Within the deportation procedure, a way of contesting the substantive content of the expulsion determination must be ensured.


(3) In the regulations of the Ministry of Justice, article 33 of the Rules for Treatment of Detainees governs meetings between detainees and their counsels. However, the right of confidentiality of communication through the exclusion of observers is not ensured. Even at the stage at which an expulsion determination is being litigated, meetings between detainees and counsels are held in the presence of officials of the immigration agency, which is in the position of defendant in the action.


Article 13 of the Covenant provides for the right to be represented in order to submit reasons against a determination of expulsion. By allowing only those deportations that are carried out "in pursuance of a decision reached in accordance with law," the purpose of article 13 is clearly to prevent arbitrary expulsions. (General comment 15 paragraph 10). Given this purpose, not only must the right to be represented itself be ensured, but the guarantee must extend to the right of confidentiality of communication. If this is not done, a detainee will have to meet with his/her representative in the presence of an official of the agency carrying out the expulsion, a circumstance which makes it impossible to expect that effective assistance of counsel can be rendered. Not permitting detainees to meet their counsels without the presence of observers is a violation of article 13 of the Covenant.


(4) As indicated above, since there are parts of the deportation procedure of Japan which are not in conformity with the Covenant, immediate corrective actions must be taken.


Section 7: Treatment in Immigration Detention Facilities (Articles 7, 9, 10 and 17 of the Covenant)

A. Conclusions and Recommendations


Detention in immigration detention facilities violates the prohibition against arbitrary detention contained in article 9 paragraph 1 of the Covenant, in that those confinements are unnecessary and unreasonably long. Moreover, it also violates articles 7 and 10 as well as article 17 paragraph 1 of the Covenant, in that the conditions of detention are extremely poor and in contravention of the legality principle with detainees subject to immigration officers' violence, sexual harassment, abusive punishment, restrictions on communication, inadequate medical facilities, etc.


These conditions should be eliminated immediately, and specific corrective measures should be taken.


B. Government's Response and its Fourth Periodic Report


The government has given no indication that it has taken any specific measures to improve the state of treatment at detention facilities, and in fact does not mention the issue in its Fourth Periodic Report. Paragraph 6 of General comment 21 states regarding all detainees that "...reports should provide detailed information on national legislative and administrative provisions that have a bearing on the right provided for in article 10 paragraph 1 of the Covenant," but the government's Fourth Periodic Report contains no information that would bring it into compliance with this provision.


C. Position of the JFBA (1) Unnecessary detention as a violation of article 9 paragraph 1 of the Covenant


Current immigration law provides that where an immigration officer has sufficient reason to suspect that a person may meet the standards for compulsory deportation, the person may be detained as a suspicious alien by means of an order of detention (Immigration Act, article 39). The Immigration Bureau has adopted a so-called total detention policy in which all suspected persons may be detained without an individual determination of the necessity of detention. As a result, persons for whom detention is unnecessary because they pose no threat of escape, such as children, elderly persons, persons undergoing medical treatment for workplace injuries, pregnant women, etc., are all detained indiscriminately.


For example, even where a criminal court has determined that a foreign defendant charged with violating the Immigration Act poses no risk of flight and has authorized the defendant's release on bail, the immigration office has always placed the foreigner in custody. Although article 9 paragraph 1 of the Covenant prohibits arbitrary detention, the indiscriminate detention of persons for whom detention is unnecessary, such as persons who pose no threat of escape, is a clear violation of this provision.


(2) Long-term detention as violation of article 9 paragraph 1 of the Covenant


The maximum term of detention pursuant to an order of detention is 60 days (Immigration Act, article 41 paragraph 1), and there is no limitation on the period of detention after the issuance of an order of compulsory deportation (Immigration Act, article 52 paragraph 5).


In actuality, detention for fairly long periods of time is the norm. At the detention center of the East Japan Immigration Control Center (located in Ushiku City, Ibaraki Prefecture), many persons have been detained for more than six months, and some have been detained for as long as two years. Such long-term detention is not uncommon at other detention facilities as well.


There is no justification for such unreasonably long detention periods, and there is no question that they comprise arbitrary detention in violation of article 9 paragraph 1 of the Covenant.


(3) Treatment during detention as a violation of the Covenant


Treatment of detainees in immigration detention facilities is poor, as detailed below, and does not comply with the standards established in the Covenant.


(a) Treatment not based on law in violation of article 9 paragraph 1


First, the Immigration Act provides that the setting of many of the legal standards for the treatment of detainees is to be delegated to the Ministry of Justice (Immigration Act, article 61 paragraph 7), and such standards are set forth in a Ministry of Justice order establishing rules for the treatment of detainees. Furthermore, these standards are general in nature, and specific treatment standards are contained in the rules established by the director of each detention center. The Immigration Bureau does not publicly disclose these rules, and the specific standards for treatment are treated as confidential. The physical freedom of detainees is therefore restricted with no basis in law, which is a violation of the legality principle contained in article 9 paragraph 1 of the Covenant.


(b) Many cases of violence and sexual harassment of detainees in violation of article 7 and article 10 paragraph 1 of the Covenant


Several cases involving detainees suffering injury due to violent treatment by staff have gone to trial, but it is suspected that there are many more cases than reach the courts.11


11 The report 'Human Rights Violations in Lock-up Rooms,' compiled by the Immigration Review Task Force, an NGO, introduced such cases as: 1) a Chinese woman who was treated violently and injured in the face during interrogation by immigration officials in the Tokyo Immigration Building No. 2. (the immigration bureau admitted this in an action for damages filed by the woman and agreed to settle the case); 2) an Iranian man who was punched and kicked by several officials at the same Tokyo Immigration Building No. 2 and suffered a broken lumbar and other injuries; and 3) a Korean man who was struck by several officials of the Osaka Immigration and injured in the face and ears. According to interviews with former woman detainees conducted by the Immigration Review Task Force in the Philippines, Thailand and Peru with regard to sexual harassment by immigration officials ('Testimony of Deported Foreigners '95-'97', issued in December 1997), a number of actions by male Immigration officials, such as peeping into the shower room and touching of detainees' hair, breasts and buttocks, were reported. There were several complaints that detainees were raped.


(c) Abuse of isolation rooms and restraints in violation of article 7 and article 10, paragraph 1 of the Covenant


Detention facilities contain isolation rooms. (Rules Regarding Treatment of Detainees, article 18) The construction of isolation rooms varies slightly from one detention center to another, but essentially they are approximately three square meters in area, with three windowless walls and a fourth wall comprising steel bars that faces the guard room, such that the isolation rooms are guarded 24 hours a day. The toilet is an open toilet with no barrier, so that it is completely in the line of sight of the guard room. There is running water in the isolation room, but it cannot be used freely by the detainees, who must ask permission from the staff, who operate the faucet from outside the room. In addition, immigration officials are permitted to use restraints such as handcuffs on the detainees. (Rules, article 19)


Of course, unrestricted use of isolation rooms and restraints is not permitted. The Rules Regarding Treatment of Detainees provide that a detainee who violates provisions of the criminal law or attempts to commit suicide or physically harm himself or herself may be isolated for a certain period, and that restraints may be used where a detainee poses a threat of flight or violence and it is determined that no other means to prevent this exists. (Rules, article 19)


In actual practice, however, isolation rooms and restraints are used for punitive purposes (the use of restraints as punishment constitutes a violation of Rule 33 of the UN Standard Minimum Rules for the Treatment of Prisoners), and because there are no requirements set forth in the Rules Regarding Treatment of Detainees, they may be used freely and arbitrarily.12 This type of treatment qualifies as 'inhuman or degrading treatment' under article 7 of the Covenant, and clearly does not constitute treatment reflecting 'respect for the inherent dignity of the human person' as required by article 10 of the Covenant.


12 According to detainees, those who are not obedient to immigration officials or who do not follow the rules are put in the isolation room or handcuffed for punitive purposes (interviews by the Immigration Review Task Force). In one case that went to trial, three detainees were put in one isolation room, with one of them handcuffed behind his back. Since the handcuffs were not removed even during meals, the restrained detainee had to eat like a dog and ask for the help of his follow inmates in order to use the toilet. They were confined in the isolation room in this condition for as long as 15 days.


(d) Prevention of outdoor exercise in violation of article 10 paragraph 1 of the Covenant


The Rules Regarding Treatment of Detainees provide that "[t]he detention center director shall consider providing opportunities for detainees to have daily outdoor exercise in an appropriate location." (Rules, article 28) Rule 21(1) of the UN Standard Minimum Rules for the Treatment of Prisoners also provides that "[e]very prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits."


However, according to an explanation from the immigration bureau, while there are facilities for outdoor exercise in the so-called detention centers (the Omura Immigration Control Center in Nagasaki and the East Japan and West Japan Immigration Control Centers), outdoor exercise facilities do not exist in other detention facilities (13 regional immigration control offices and bureaus nationwide, as well as numerous local offices). Even in locations that do have outdoor exercise facilities, their use is permitted only twice a week. This lack of facilities and the restrictions on their use clearly does not accord with Rule 21(1) of the UN Standard Minimum Rules for the Treatment of Prisoners, and constitutes a violation of article 10 paragraph 1 of the Covenant.


(e) Restrictions on communication in violation of article 17 paragraph 1 of the Covenant


The Rules Regarding Treatment of Detainees provide that "[w]here the detention facility director, etc., determines upon inspection of a communication from a detainee that any part of the contents of said communication poses an obstacle to the security of detention, etc., sending of such communication shall be permitted only after said part is revised or omitted, and in the event of failure to obey such an instruction, such communication shall be held by the detention facility director." (Rules, article 37)


At the detention facility in the Tokyo Immigration Building No. 2, in actual practice, detainees' communications are severely restricted. Outside telephone communications to or from the facility are prohibited, and immigration officials make the calls on behalf of the detainees. In other detention facilities as well, where detainees are allowed to make outside calls, prior approval is required, and this approval is often denied. Moreover, where the making of a call is permitted, in many cases strict limits are placed on the conversation.13


Because the immigration bureau has not made public the rules governing detainees' treatment, the specific standards on which these restrictions are based are unknown, but in any case, practices such as these clearly comprise arbitrary and unlawful interference with correspondence prohibited by article 17 paragraph 1 of the Covenant.


13 A Peruvian man detained in the West Japan Immigration Control Center claimed that he asked immigration officials to allow him to call his family in Peru, but the request was denied for a long period of time. When he finally received permission, the contents of his conversation were restricted. He was accompanied by three immigration officials, and was told "[d]o not tell them what is going on in the detention center. Do not tell them that you are sick. Just tell them what we tell you to say now. That is, you want them to buy a ticket to return home, the flight should be one that leaves Japan during the day, and the flight should leave from Kansai Airport." (interviews by the Immigration Review Task Force)


(f) Inadequate medical care in violation of Article 10 paragraph 1 of the Covenant


The Rules Governing Treatment of Detainees provide that "where a detainee becomes ill or is injured, the detention facility director shall have the detainee examined by a physician and take measures appropriate to the symptoms." (Rules, article 30) However, the medical care system in detention facilities is highly inadequate.14


Rule 24 of the Standard Minimum Rules for the Treatment of Prisoners provides that "[t]he medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary." At present, however, even these minimum standards are not being met, which comprises a clear violation of the obligation contained in article 10 paragraph 1 of the Covenant to treat detainees "with humanity and with respect for the inherent dignity of the human person."


14 For example, in the detention center of the Tokyo Immigration Control Bureau Building No. 2, while there are approximately 400 detainees, no doctors or nurses are on site. According to detainees, even if they complain about poor mental or physical health, they are not easily allowed to be seen by a doctor. The immigration officials on site are essentially making medical diagnoses in place of a doctor. While the East Japan Immigration Control Center has long-term detainees, as described above, no regular physical examinations are offered.


Section 8: The Ainu Minority Issue (Article 27 of Covenant)

The Ainu culture promotion law has recognized for the first time the existence of this minority in Japan, which is meaningful in that the survival and promotion of the their culture has been incorporated into national policy. The Ainu people are not only a minority but also an indigenous people. Although article 27 of the Covenant establishes for the indigenous people as a minority the right to land and resources traditionally used in its culture, such as fishing and hunting, the Ainu culture promotion law provides no guarantees of social or economic rights based on indigenous status.


Therefore, the government should: 1) provide appropriate compensation to the Ainu for past violations of the economic rights of indigenous people; and 2) guarantee the right to traditional use of land and resources as part of their right to enjoy their indigenous culture.


B. Subjects of Concern and Recommendations of the Human Rights Committee


In its examination regarding the Third Periodic Report of the Japanese government, the Committee questioned the specific content of the 'comprehensive' measures taken on behalf of the Ainu people pursuant to the Hokkaido Utari Welfare Policy, and the government summarized the Utari policy implemented in Hokkaido. In its comments adopted afterward, the Committee expressed its concern "at the continued existence in Japan of certain discriminatory practices against social groups, such as...the Ainu minority" (Comment, paragraph 9), and recommended generally that "[a]ll discriminatory laws and practices still existing in Japan should be abolished in conformity with articles 2, 3 and 26 of the Covenant. The Government of Japan should make an effort to influence public opinion in this respect." (Comment, paragraph 17)


C. Government's Response and its Fourth Periodic Report (paragraphs 208-211)


On May 8, 1997, the Japanese government enacted the 'Law Pertaining to the Promotion of the Ainu Culture and the Dissemination and Advancement of Knowledge of the Ainu Tradition' (Ainu Culture Promotion Law), which went into effect on July 1 of that year. This was the first law that imposed a duty on the state to take positive measures on behalf of a minority in Japan. Concurrent with the implementation of this law, the Hokkaido Aboriginal People Protection Law and the Asahikawa Aboriginal People Law (hereinafter the 'Aboriginal People Protection Law') enacted in 1899 were abolished.


The Fourth Periodic Report simply cited the Utari measures implemented by the Hokkaido prefectural government and did not mention anything about national policies. It also reported on the 'Expert Committee on the Utari Measures,' but did not refer to the enactment of the Ainu Culture Promotion Law.


D. Position of the JFBA Enactment and limitations of the Ainu Culture Promotion Law (1) The Ainu people are an indigenous people who lived in the northern area of Japan, including Hokkaido, before the Japanese advanced into this northern territory. The Japanese Meiji government sought the total annihilation of the Ainu culture as soon as they made development of Hokkaido a national policy. The government deprived the Ainu people of their means to clothe, feed or house themselves, prohibited their traditional lifestyle, and barred the use of the Ainu language. However, the government was unsuccessful in totally eliminating their traditional culture, and therefore, it changed its policy to the Japanization of the Ainu people.


The legal expression of this intention was the Aboriginal People Protection Law. The preamble to this law included the statement that "it has not been long that the Ainu people have been under the authority of the Emperor, and the level of their wisdom is extremely low," clearly indicating the government's low regard for the Ainu people. The Japanization of the Ainu was carried out mainly through the schooling of the children. The Ainu language and culture were driven out, and the lifestyle of the Ainu people was almost completely Japanized. On the other hand, discrimination against the Ainu remained, giving rise to economic disparity and unequal access to higher education.


The population of the Ainu in Japan is estimated to be approximately 50,000 to 100,000, but the actual number is not known. Since approximately 25,000 of them live in Hokkaido, the Hokkaido prefectural government implemented the 'Utari Welfare Policy' in order to eliminate discrimination against the Ainu. The fact that the Japanese government explained only the Utari measures in connection with the previous examination, and refers only to these measures in its Fourth Periodic Report, reflects the fact that no particular measures have been adopted by the national government.


(2) In 1984, an incorporated 'Hokkaido Utari Association' adopted a 'Draft Bill Regarding the Ainu People' and requested that the government enact a law that would codify the various policies concerning the Ainu people. The contents of the bill were: (i) a declaration of rights in order to eliminate discrimination; (ii) granting of fishing licenses to those who requested them; (iii) securing of special seats in the Diet and local assembly; (iv) establishment of a fund for the promotion of Ainu autonomy that would be set aside by the national government and managed by the Ainu people; (v) educational measures and economic policies for Ainu children; and (vi) establishment of a standing council. Note that the Ainu are requesting not only promotion of the culture but also social and economic policies that address the causes of their problems.


(3) In June, 1996, the 'Expert Committee on the Utari Measures,' an advisory committee to the Chief Cabinet Secretary, recognized the indigenous and minority nature of the Ainu people in Hokkaido, as well as the significant destruction of the Ainu culture resulting from the Japanization policies adopted by the government from Meiji onward. Based on this recognition, they recommended that the Aboriginal People Protection Law be abolished and that new legislation for the preservation and promotion of the Ainu culture be enacted. Based on this recommendation, the Ainu Culture Promotion Law was enacted in May, 1997.


The purposes of this law, however, do not include any positive measures by the national government with regard to the economy and general lives of the Ainu people, and were limited to such goals as promotion of the Ainu culture, the preservation and dissemination of tradition, and the spread of knowledge. A supplementary resolution that 'the indigenous nature of the Ainu people is a historical fact' was adopted by both the Lower and Upper Houses of the Diet, but it was never included in the law itself.


The reason for this lack of incorporation was that the government did not want to provide a basis for the assertion of 'indigenous rights' (rights to demand recovery of land and resources for an indigenous people) by expressly recognizing the Ainu's 'indigenous nature' in the law. Consequently, the significance of the Ainu Culture Protection Law was limited to being an Ainu recognition law that recognized the co-existence of a different people and a different culture in the Japanese state. Recognition of their 'indigenous rights' was left untouched as a future issue to be addressed upon the establishment of a 'U.N declaration regarding the rights of indigenous peoples.'


The various rights of persons belonging to ethnic minorities as provided under Article 27 of the Covenant are not identical with the 'indigenous rights' that are under consideration by the task force of the UN Commission on Human Rights. However, the general comment regarding article 27 of the Covenant points out that special attention should be paid when an minority is at the same time an indigenous people. According to the general comment, when the minority is an indigenous people, the enjoyment of their own culture includes a particular way of life closely related to their use of land and resources, thus, their right to land and resources that were traditionally used for fishing and hunting would logically result from their right to enjoy their own culture. (see general comment 23, paragraphs 3.2 and 7).15


While the JFBA applauds with the enactment of the Ainu Culture Protection Law, Japan's first law on behalf of a minority people, because of its shortcomings in terms of the absence of a guarantee of indigenous rights that the Ainu people demand, we propose that the actions described above be taken in accordance with the general comment 23 regarding article 27 of the Covenant.


15 On March 27, 1997, in a suit seeking rescission of a decision to seize land designated for the construction of the Nibutani dam, the Sapporo District Court recognized that the Ainu were an indigenous people, having the 'right to enjoy their own culture' based on article 27 of the Covenant and determined that the approval of the dam construction project by the Minister of Construction and the decision to seize the land based on said approval were illegal. However, because construction of the main part of the dam had already been completed, the court dismissed the request for rescission by the plaintiffs (two Ainus) on the ground that destruction of the dam would not be in the 'public interest.'


CHAPTER 3: CRIMINAL PROCEDURE

Section 1: The Problem of Substitute Prisons (Daiyo K angoku)

 So-called substitute prisons (Daiyo Kangoku) are hothouses for human rights violations and miscarriages of justice because the police try in the course of interrogations in substitute prisons to coerce confessions from detainees. Such a practice violates articles 7, 9, 10 and 14 of the Covenant. The Japanese government should immediately abolish substitute prisons.


B. Subjects of Concern and Recommendation of the Human Rights Committee


(1) After examining the Third Periodic report of the government of Japan in October, 1993, the Committee expressed the following, critical comments and concluded that the substitute prison system does not comply with the Covenant.


(a) It seems to be that the sole purpose of the system is to pressure detainees to confess.


(b) The system must be eliminated to improve the image of Japan in international society; the substitute prison system is inherently "degrading treatment."


(c) Twenty-three days are not a short period of time and during interrogation a suspect cannot take legal counsel. Such a practice violates the presumption of innocence.


(d) In a substitute prison from the very outset due process in accordance with the Covenant is not followed.


(e) The pre-trial detention system in Japan must be reformed in accordance with the provisions of the Covenant, in particular the requirements of article 9. The main point of article 9 is not merely that a judge must confirm the legality of the arrest but rather that the suspect must be brought under judicial control and so be protected from arbitrary treatment by the police. The police in every country shows a tendency to behave arbitrarily. Detainees in the substitution prisons of Japan are clearly forced to confess.


(2) After consideration of the substitute prison system the committee adopted the following comments as one of its principal subjects of concern in paragraph 13: The Committee is concerned that the guarantees contained in articles 9, 10, 14 are not fully complied with, in that pre-trial detention takes place not only in cases where the conduct of the investigation requires it; the detention is not promptly and effectively brought under judicial control and is left under the control of the police; most of the time interrogation does not take place in the presence of the detainee's counsel, nor do rules exist to regulate the length of interrogation; and the substitute prison system (Daiyo Kangoku) is not under the control of an authority separate from the police. In addition, the legal representatives of the defendant do not have access to all relevant material in the police record, in order to enable them to prepare the defence.


On the basis of this comment the following recommendation was made in paragraph 19: With a view to guaranteeing the full application of articles 9, 10, and 14 of the Covenant, the Committee recommends that pre-trial procedures and the operation of the substitute prison system (Daiyo Kangoku) should be made compatible with all requirements of the Covenant and, in particular, that all the guarantees relating to the facilities for the preparation of the defence should be observed.


C. The Government's Response and its Fourth Periodic Report (paragraphs 68-69, 115-143)


(1) In spite of the fact that many Committee members expressed the opinion that the substitution prison system must be eliminated, the representative of the Japanese government consistently claimed that the system exhibits no problems with respect to the protection of human rights, and advocated the continuation of the system by emphasizing the following points:


(a) Although 97% of all detainee are held in the police substitute prisons, their places of detention have been decided by a judge.


(b) In the administrative system of the police, the tasks of investigation and detention are clearly separated and the police officers involved in investigations cannot control the living conditions of detainees. Even if there are problems in police investigations, they have no connection with the institution of substitute prisons. Hence, it is unreasonable to link the incidence of reversal on appeal of guilty verdicts with the existence of the substitute prison system. None of the recent judicial decisions overturning guilty verdicts mentions mistreatment in a substitution prison as the basis of a false prosecution.


(c) Although counter reports, such as that of the JFBA, claim that detainees are forced to confess, such claims are mere assertions and are not based on objective facts.


(2) Taking advantage of an ambiguity in the wording of the Committee's recommendation 19, "...the operation of the substitute prison system (Daiyou Kangoku) should be made....," the Japanese government (i.e., the Ministry of Justice and the National Police Agency) claiming to a large number of members of the Japanese Diet that the Human Rights Committee had approved of the existence of the substitute prison system, argued for the necessity of proposing the bill in the Diet ( known as the "two detention bills") which would establish the substitute prison system on a permanent basis. The JFBA, on the other hand, which has asserted for years the necessity of eliminating the substitute prison system, proposed a bill in 1992 requiring the complete elimination of the substitute prison system by the year 2000. Furthermore, international criticism of the substitute prison system as violative of human rights and calls from the international community for its elimination have been made repeatedly. The Japanese government, however, has neither tried to eliminate nor to improve the system and hence so far has not in any way implemented the actions recommended by Committee.


(3) The attitude of the government toward the substitute prison system shows no change at all in its Fourth Periodic Report. Basically the same, unsubstantiated claims as those in the Third Periodic Report are repeated: with respect to article 7 "...the act of violence, cruelty or the like upon a suspect under criminal investigation or any other person by a law enforcement officer involved in criminal investigation... is extremely infrequent;" with respect to article 10 of the Covenant, "...it [the substitute prison system] is utilized extremely fairly... and the human rights of detainees are fully preserved" and again "If any police officer should do anything improper..., severe punishment is meted out."


D. The Situation in Substitute Prisons (1) Cases of the Human Rights Violations in a Substitute Prisons


The government in its Fourth Periodic Report claimed with respect to article 7 of the Covenant that the occurrence of police violence etc. in substitute prisons is extremely rare and that although any police officer who commits such a violation is subject to severe punishment, the number of officers indicted for such offenses since 1994 is zero. Nevertheless, as shown below, violence and threats to suspects in substitute prisons by police officers are, in fact, fairly common. But because those illegal actions are done systematically by the police and are jealously hidden from the general public, they rarely become known. Furthermore, even if a human rights violation is made public and a file is sent to the prosecutor's office, indictments are rarely brought and clear results are not reached because the prosecutor's office and the police are essentially on the same side. The number of the cases of human rights violations in substitute prisons reported in newspapers in the one-year period of 1997 is, as can be seen below, not inconsiderable. (a) Cases in which the voluntariness or reliability of the confession is problematic or a doubt has been raised. There are many cases in which a confession in a substitute prison was ruled inadmissible16 and many others in which, although the confession was admitted as evidence, the reliability of the confession was denied.17 (b) There are not a small number of cases in which there has been great doubt about the reliability of the confessions, even though no judicial ruling to that effect was made.18 (c) Cases in which the inhuman treatment and the violation of the right to counsel occurred in a substitute prison.19 (d) Claims that investigators use violence in interrogations still continue to be made.20


(2) Sexual Violence and Violations of Women's Human Rights in Substitute Prisons


Violations of the human rights of women in substitute prisons are serious problems. Recently many such cases have been reported. With respect to this sort of human rights violation, substitute prisons do not provide sufficient physical facilities and, in addition, the participation of male guards in the control of female detainees is a source of problems.21


These above-mentioned cases describe objective facts based on the reports of the lawyers in charge, newspaper reports of the court rulings, and the disciplinary actions by the police. They are not groundless claims. Rather they are just the tip of the iceberg, and there is no doubt about the reality of police efforts to force confessions, the routine use of violence and the threat of violence by the police in substitute prisons all over Japan. The Yamaichi Securities Case, described above in footnote 19 example 4, is an especially flagrant case. The police officers did not transfer the suspect to the detention center after the indictment, and kept him detained in a substitute prison, continued to investigate him in relation to the different case, which was illegal under the Code of Criminal Procedure and to pressure him to confess. Furthermore, the personnel in charge of his detention, notwithstanding the knowledge that the interrogations were illegal, daily forced him out of his cell into the interrogation room and closely cooperated with the investigators who continued to inflict violence and torture on him. The claim at the Government that "there is a strict separation between the police section in charge of the treatment of detainees and the section in charge of criminal investigations. This is necessary to guarantee the human rights of detainees," is mere window-dressing; the reality is far from it. The problem of substitution prison is serious. The system must be abolished as quickly as possible.


E. Position of the JFBA (1) Response to the Government's Claim that the Substitute Prison System has been Improved (a) The Assertion of the Government


According to its Fourth Periodic Report, the Japanese government proudly claimed that "[a]lthough various opinions have been expressed regarding this system, it is utilized extremely fairly,... and the human rights of detainees are fully preserved." (paragraph 117) The government claims that facilities have been improved so that they are clean and pleasant; that air conditioners have been set up; that the latest CD-ROM-based portable interpreter for foreigners are being installed; and that the police section in charge of the custody of detainees and those in charge of criminal investigation are strictly separated so that the human rights of detainees are guaranteed.


Certainly, it is the case that the treatment in a substitute prison is more moderate than in a detention center and that some suspects and lawyers welcome the substitute prison system. For example. although tobacco is forbidden in a detention center, it is allowed in a substitute prison; suspects are not forced to assume a rigid, fixed posture when sitting in their cells, which is required in detention centers. In fact, an increasing number of suspects in cases where a confession has been made prefer to stay in a substitute prison. This is a perverse, but undeniable phenomenon. In addition, an increasing number of lawyers find the substitute prison system more convenient because of the difficulty of access to a detention center, the insufficient number of the visiting rooms in detention centers, and hence the long waiting time for them. Such a response by lawyers is presumably affected even more by the increasing gap with respect to the degree of convenience experienced by lawyers between a substitute prison and a detention center, e.g. among the services increasingly available to lawyers in substitute prisons is greater access to their clients at night.


(b) A Gap Created in Order to Preserve the Substitute Prison System


These kinds of gaps between a substitute prison and a detention center in the handling of both suspects and their lawyers should be understood as having been deliberately created by the police and the Ministry of Justice in order to preserve the substitute prison system. Why, in fact, is a suspect provided with an air conditioner in a police jail, while a similar suspect on remand in a detention center or prison is not provided with any appliance whatsoever to control the temperature in his cell either in the dead of winter or the sweltering summer? It must be quite clear that the gap is intentional. On the other hand, there are no windows in many substitute prisons and exercise facilities at a substitute prison are poor in comparison with those in a detention center. Furthermore, with respect to medical resources a detention center is better than a substitute prison.


While it is true that the staff for interrogation and for incarceration are separate, with respect to the truly important issue, preserving a reasonable, fixed daily routine for suspects as a barrier against unlimited interrogations, the government in its Fourth Periodic Report says only that: [e]fforts are made to preserve the detainee's regular daily routine. Officials in charge of detention may, when necessary, request to the chief investigator that the interview and other investigative activities be ended or interrupted, in order to avoid that interviewing or other investigative activities hinder the daily routine in terms of eating, sleeping and other life.


The statement of the government betrays the fact that the officer in charge of detention has no power nor obligation to stop excessive interrogations, but only the obligation to make an effort to request the termination of an excessive interrogation; in other words, the incarceration division of the police is subject to the investigative division.


The "improvement of facilities" is merely the result of an effort by the government to invest in the modernization of the substitute prison system in order to preserve it while it ignores the need for more detention centers. The essential problem of the substitute prison system, i.e., the fact that a suspect is under the total control of the police, has not changed at all.


(2) The Check of a Judge's Warrant does not Function.


At the time of the examination of the Third Periodic Report the representative of the Japanese police emphasized the point that because the independence of the judiciary is firmly established in Japan, a judge would never designate police jail (a substitute prison) as prison, if there were any possibility of a human rights violation in a police jail. The check of a warrant by a judge, however, does not function.


In fact, in 1996 of all the petitions for incarceration (kouryu seikyu) submitted by prosecutors, all of which requested incarceration in a substitute prison, only 0.31 % were turned down by judges.


Furthermore, lawyers are not allowed to attend the court when such a warrant is examined by a judge. Even if lawyers, concerned over the danger of the human rights violation in a substitute prison, such as the coercion of a confession, petition the court for incarceration in a regular prison, only a few exceptional judges would rule in favor of such a petition in faithful obedience to the Constitution and the Code of Criminal Procedure. Therefore, the fact that judges accept the substitute prison system is no guarantee of the absence of human rights violations in substitute prisons.


(3) International Criticism of the Substitute Prison System


After Amnesty International made its recommendations in 1991, the following, further international criticisms of the Japanese substitute prison system were made. (a) Recommendation by Human Rights Watch in March, 1995


The substitution prison system must be abolished. After being arrested, a suspect must be quickly transferred to a detention center. (b) Report and Recommendations of the IBA


The IBA dispatched an Australian attorney named Mr. Nicholas Cowdery to Japan to investigate the substitute prison system. He conducted comprehensive research in September, 1994, and then in February, 1995 made a second investigation accompanied by the president of the IBA, Mr. J. Ross Harper. Furthermore, in order to compare the Japanese system with criminal procedure of foreign countries, the IBA conducted an international seminar on pre-indictment and court procedures in cooperation with the JFBA, and published a report on the substitute prison system, which included a recommendation of its elimination.22


The IBA report is the most thorough and detailed of the international reports on the substitute prison system and, in addition, examined the Japanese criminal justice system as a whole centering around the substitute prison system. This report claimed that the Japanese criminal justice system as a whole contains structural defects, suffering from an excessive emphasis on confession which is supported and encouraged by the substitute prison system. It is a vicious circle: too much emphasis in the criminal justice system on confessions produces a police behavior pattern whereby the police try to prolong the incarceration of a suspect in a substitute prison and to coerce a confession; the ease of securing confessions in a substitute prison supports and encourages a criminal justice system in which confession looms excessively large.


(4) Conclusion


The shortening of the period of incarceration by the police is one of the most important steps for the protection of the human rights of suspects. The substitute prison system and its use by the police to coerce a confession clearly violate articles 7, 9, 10 and 14 paragraphs 3(b) and (d) of the Covenant as pointed by the Committee. The Japanese government must abolish the substitute prison system in accordance with the unanimous demand by the world community.


Section 2: The Lack of an Institution of State-Appointed Counsel for the Pre-indictment Phase (Articles 9 and 14 of the Covenant)

The lack of an institution of state-appointed counsel for suspects violates article 9 paragraph 4 and article 14 paragraph 3(d) of the Covenant. The government must create such an institution immediately.


B. Subjects of Concern and Recommendations of the Human Rights Committee


Although the Committee in its consideration of the Third Periodic Report did not directly examine this issue, the Committee in the course of considering the issue of fair trial and equal defense under article 14 of the Covenant expressed its concern that Japan might not adopt the attitude consistent with the Covenant. Hence, the Committee recommended that "...pre-trial procedures and the operation of the substitute prison system (Daiyo Kangoku) should be made to be compatible with all requirements of the Covenant and, in particular, that all the guarantees relating to the facilities for the preparation of the defence should be observed." (Comment, paragraph 19)


C. The Government's Response and its Fourth Periodic Report (paragraph 154)


The Government has not adopted any concrete plan for setting up of the above-mentioned institution. On the contrary, it has adopted the policy of excluding criminal cases from the scope of legal aid which will be established by law in near future.


In its Fourth Periodic Report, the government after quoting the relevant passage from its Third Periodic Report added a description of the institution of Required Defense Counsel (article 289 of the Code of Criminal Procedure), but did not mention at all that the JFBA proposed and made concrete efforts towards setting up such an institution.


D. Position of the JFBA (1) In current practice the appointment of counsel by the state is granted only to a defendant i.e., a person who has already been indicted, and not to a suspect, who has not been indicted. (article 36 of the Code of Criminal Procedure).23 As a result, if a suspect does not know any lawyer or is not wealthy enough, he may not receive the support of legal counsel. It is a well-known fact that many victims of miscarriage of justice made false confessions during long interrogations in substitute prisons without the support of legal counsel.


(2) According to article 14 paragraph 3(d) of the Covenant, however, all suspects under criminal charge are entitled to have legal assistance assigned by the state in any case where the interests of justice so require, hence the requirement of the appointment of counsel by the state is not limited to the post-indictment stage. Especially in a country like Japan where the suspect's statement in the interrogation phase decides the case for all practical purposes, the requirement of a fair trial must be made effective from the time of the arrest.24 Furthermore, since article 9 paragraph 4 of the Covenant guarantees anyone deprived of liberty the right of recourse to a court for the remedy of a habeas corpus action, and the assistance of an attorney is indispensable for such an action, then a person must be guaranteed the right of access to counsel as soon as he is deprived of liberty. Therefore, a suspect deprived of his liberty has the right to the assistance of an attorney in the double sense and, if the suspect is not wealthy enough, the state must appoint counsel at its expense.


Hence, the lack of the institution of state-appointed counsel for the pre-indictment phase obviously violates article 9 paragraph 4 and article 14 paragraph 3(d) of the Covenant.


(3) The JFBA, in order to compensate for the fatal defect of the lack of state-appointed counsel for suspects before indictment, established the institution of the duty attorney program (toban bengoshi) in cooperation with fifty-two local bar associations. This institution, modeled after the Duty Solicitor Scheme in England and Wales, ensures that in response to a request from a criminal suspect deprived of liberty a duty attorney (toban bengoshi) will, in principle within 24 hours of the request, contact the suspect and give free legal advice. The number of toban bengoshi currently registered, as of May 1, 1998, is 7,210, that is 43 % of all the members of the JFBA. The number of the cases in 1997 in which a toban bengoshi was dispatched was 22,910. That is, toban bengoshi were involved in nearly 25% of all detention cases in Japan in 1997. The background of this development is the cooperation of the courts and other law enforcement agencies with respect to notifying suspects of the system. On the other hand, because toban bengoshi are volunteers and the expense to local bar associations is huge, a problem has emerged: the greater the demand, the more difficult the finances. As a result the JFBA collects special fees from all its members; has set up an emergency finances fund for the duty attorney program (toban bengoshi); and financially supports the management of the system by the local bar associations.


The institution of the duty attorney program (toban bengoshi) is only a stop-gap measure to deal with a fundamental defect in the criminal justice system and the program relies on the personal devotion and sacrifice of individual lawyers. In addition, the fund which was established for the purpose is only provisionary. Consequently, the need for the government to establish the institution of state-appointed counsel for suspects before indictment has become urgent.


For this reason, the JFBA announced a "Proposal for the Institution of State-appointed Counsel for Suspects in Custody" in October, 1997 to gain the consensus of the mass media and citizenry for enacting such a system into law. The outline of the proposal is as follows. (a) The scope of bill will cover all suspects whose liberty is constrained. (b) If a suspect is unable to secure counsel because of poverty etc., the court shall appoint counsel at the request of the suspect. (c) The period of the appointment procedure starts from the time of arrest. (d) Although in principle appointment of counsel requires a request from a suspect, in certain cases, such as cases to be tried mandatorily by a panel of judges, cases where the suspect denies guilt without his own counsel, or cases where the suspect is a minor, counsel should be appointed even without the request of the suspect if the other requirements (poverty, etc.) are met. (e) The Code of Criminal Procedure shall be modified in 1999 and the new law shall be enforced gradually (phased in by stages) from 2000.


(4) The Ministry of Justice has claimed that there must be a consensus on "the proper role of the defense counsel" as the premise for the introduction of the institution of state-appointed counsel for suspects, and has tried to evade the real issue by focusing on the side issue of the proper role of lawyers.25 In fact, the proper role of lawyers and the legitimate interests to be protected differ from case to case, and the purposes of a legal defense, including whether or not to pursue the truth, depend on the autonomy of the suspect or defendant because the current regime in Japan is the adversary system. Accordingly the proper role of a defense counsel is essentially incompatible with the state's demand of the pursuit of truth through lawyers. As for the role of lawyers, that issue has already been clarified by the adoption of "the Basic Principles on the Role of Lawyers" by U.N. Congress on the Prevention of Crime in 1990. While it may be useful to discuss the proper role of lawyers under different legal systems, such deliberations have nothing to do with the establishment of an institution required by the Covenant. Because the Government has the legal obligation to correct the present defects in the criminal justice system as soon as possible, it must start working immediately with a view towards enacting the proposal of the JFBA.


Section 3: The Insufficient Disclosure of Evidence (Articles 9 and 14 of the Covenant)

The legal institution and manner of implementation of the disclosure of evidence in Japan violates article 14 paragraph 3(b) of the Covenant. The government must take proper legislative action to ensure that a defendant and legal counsel have the right to require the full disclosure of evidence. The government must also recognize the right of a defendant and legal counsel to the custody record of the defendant in accordance with the article 9 paragraph 4 of the Covenant.


B. Subjects of Concern and Recommendations of the Human Rights Committee


At the consideration of the Third Periodic Report of the government of Japan several committee members expressed the opinion that it is unjust for a defendant and his or her counsel not to have access to all the relevant documents and evidence. One member (Ms. Evatt) posed the question by saying, "I would ask that is the case that the prosecution need not disclose evidence in its possession that it does not intend to use and thus frustrate the defense from preparing its case," but the Japanese government made no supplementary response to this inquiry.


The committee pointed out as one of its main concerns that "...the legal representatives of the defendant do not have access to all relevant material in the police record, in order to enable them to prepare the defence" (Comment, paragraph 13) and recommended that, "...all the guarantees relating to the facilities for the preparation of the defence should be observed." (Comment, paragraph 19)


C. The Government's Response and its Fourth Periodic Report (paragraph 155)


The Government did not secure a change of the relevant law to enable a defendant and his or her counsel to have access to the total body of evidence nor bring about any change in implementation.


The government in its Fourth Periodic Report only mentions the disclosure of evidence which a prosecutor intends to submit at trial and a discovery order rendered in individual cases by a court in the course of proceedings, and concludes, "[t]he defendant and defense counsel are thus guaranteed adequate opportunities to access evidence necessary for the preparation of the trial."


D. Position of the JFBA (1) Because article 299 paragraph 1 of the Code of Criminal Procedure requires prior disclosure of only evidence which is going to be produced at trial in order to prevent a surprise attack against the opposite side, counsel cannot require the prosecutor to reveal evidence which the prosecutor does not intend to produce in court (especially, exculpatory evidence, that is evidence favorable to the defendant). In addition, with respect to a court order for the discovery of evidence: (a) Such an order relies on the discretionary power of the court, not on the defendant's or counsel's right to petition for the disclosure of evidence, (b) Such an order requires counsel to specify the needed evidence and demonstrate "the concrete necessity" for its disclosure. Hence, the defendant or counsel cannot petition for the disclosure of evidence the existence of which is unknown to them. (c) Because the requirements for a disclosure order, such as "especially important for the defense" or "there is no possibility of destroying the evidence and threatening the witness" and "having the evidence disclosed should be appropriate," are too severe, such a court order is not an effective means for the disclosure of evidence.


(2) The intent of article 14 paragraph 3(b) of the Covenant is a guarantee of an effective defense and in that regard the guarantee of "adequate facilities" for the preparation of a defense includes the "...access to documents and other evidence which the accused requires to prepare his case....(General comment 13[14] paragraph 9)(1984) At the consideration of the Third Periodic Report, committee member Lallah pointed out "'[f]acilities' means 'facilities which are closely connected with the defense of the accused,' and this means the availability on the case that the accused has to meet in the course of the trial." Committee member Evatt also pointed out that "[a]n essential element of the fair trial is that the accused and his legal counsel have access to all necessary documents and evidence, including the file in possession of the prosecution." Because the police and a defendant with his or her counsel are not on an equal footing with respect to the power and ability to collect the evidence in the investigation stage, the parties can be on the equal footing in court only in so far as a defendant and his or her counsel have equal access to the evidence in the hands of the prosecutor.


Therefore, the Japanese legal system and practice, which do not recognize the right of the defendant and his or her counsel to petition for the full disclosure of evidence prior to trial are insufficient with respect to the guarantee to a defendant of the right to defense.


(3) In March, 1988 the JFBA produced a document entitled, "The Outline For Legislative Action for the Institution of Disclosure of Evidence in the Code of Criminal Procedure" and proposed that proper legislative action must be taken with respect to the Code of Criminal Procedure in order that the general rule will be the disclosure of all evidence in the hands of the prosecutor. The main points of this proposal are as follows: (a) The scope of the disclosure is all the evidence acquired in the investigation. (b) A defendant and his or her counsel have the right to petition for disclosure of evidence and the prosecutor has the obligation to respond to it affirmatively. (c) If the prosecutor does not disclose the list of the evidence or does not obey the court's discovery order to disclose the evidence, the court must dismiss the case.


(4) Article 9 paragraph 4 of the Covenant guarantees to anyone deprived of liberty by arrest or detention the right to a judicial proceeding to dispute the lawfulness of the detention. This right includes the right of a detainee and his or her counsel to examine the materials which are the basis of the custody. Hence, in the case of the detention on the basis of the Code of Criminal Procedure, the disclosure of evidence related to the custody is absolutely mandatory. Thus, the concept of the disclosure of evidence must be understood in its totality from the viewpoint of the requirement of the due process of law at each phase of the criminal process, from the custodial stage through the investigative stage and finally to the stage of the court proceedings.


On the basis of this understanding of the issue, the JFBA takes the position that all evidence, including the evidence directly related to the crime, the record of custody, the materials related to the warrant, and the record related to interrogation and so on must be revealed.


However, the investigative authorities in Japan oppose the disclosure of materials related to custody before indictment on the basis of the secrecy of investigation, and courts also are reluctant to move for disclosure, claiming that the investigative authorities, not the courts, have the power and responsibility to control such records.26


While the Osaka Bar Association acted as a driving force, announcing an initiative entitled, "A Proposal Concerning the Disclosure of Documents Before Indictment" and proposing a change in the rules of criminal procedure so that counsel has the right to examine and copy the investigation materials which led to the arrest and detention and the custody record (e.g., the record of comings and goings of the detainee while in custody), both the Ministry of Justice and the courts have not shown a willingness to cooperate with the JFBA. This kind of inaction, which can be fairly characterized as a neglect of the Committee's recommendation, confirms the concern of the Committee that Japan lacks the attitude to understand correctly the spirit of the Covenant and thereby take proper actions in accordance with the Covenant.


Section 4: Detention of Suspects (Articles 9 and 14 of the Covenant)

(1) To take into consideration "the fear of destruction of incriminating evidence" at the time of deciding the legality of the detention of a suspect or the propriety of permitting bail for a defendant violates the right to the presumption of innocence guaranteed article 14 paragraph 2 as well as the provision of article 9 paragraph 3 of the Covenant.


The government must remove the "fear of destruction of incriminating evidence" test from the reasons justifying detention as determined by the code of criminal procedure and replace it with the test of "substantial reason for believing danger of interfering with the course of justice," which is internationally recognized as justifying detention. (2) The lack of a legal right for a person who is under arrest to file a complaint concerning the legality of the arrest violates the article 9 paragraph 4 of the Covenant. The government must take legislative measures for the right to file a complaint against the unlawfulness of an arrest or make explicit that a so-called "quasi-complaint against detention" can be applied correspondingly against an arrest. (3) The lack of the system by which a suspect be released on bail before the indictment violates article 9 paragraph 3 of the Covenant. The government must create the system of the pre-indictment bail.


B. Subjects of Concern and Recommendations of the Human Rights Committee


During the examination of the Third Periodic Report a representative of the Japanese government stated that the possible period of the detention under Japanese law, which is 23 days, is extremely short compared to the period of detention under the investigation conducted by instruction preparatoire in French law. He also claimed that because a demand for the continuation of detention must be brought before a court within 72 hours of arrest; the suspect is permitted to make his case in opposition to the demand; and the propriety of the continued detention of a suspect is decided only after a close examination by a judge, therefore there is no violation of the article 9 paragraph 3 of the Covenant. In opposition to the government's position, one committee member (Mrs. Higgins) pointed out that the comparison with the system of other countries is irrelevant and that 23 days are not short. Another member (Mr. Lallah) expressed the concern that the Japanese government completely misunderstands article 9 paragraph 3 of the Covenant, as the existence of the substitute prison system symbolized.


The committee expressed its concern that, "...pre-trial detention takes place not only in cases where the conduct of the investigation requires it" (Comment, paragraph 13) and further "[w]ith a view to guaranteeing the full application of articles 9, 10 and 14 of the Covenant, the Committee recommends that pre-trial procedures and the operation of the substitute prison system (Daiyo Kangoku) should be made to be compatible with all requirements of the Covenant...." (Comment, paragraph 19) These comments encapsulate the Committee's concern that with respect to the protection of the rights of suspects not only the system of detention but also the criminal justice system in Japan as a whole is not compatible with the spirit of the Covenant.


C. The Government's Response and its Fourth Periodic Report (paragraphs 74-83)


The government has not in any way begun to improve the Code of Criminal Procedure with respect to the detention, nor has its application of the law and the related case law shown any attempt to improve the status quo by the government. The government in its Fourth Periodic report merely repeats the same points made in the last examination by quoting the statistics from 1990 to 1995, and does not at all evince an attitude "consistent with the Covenant."


D. Position of the JFBA (1) Justificatory Reasons for Detention


The Code of Criminal Procedure provides that a "sufficiently reasonable grounds to suspect that the accused may destroy evidence" is a condition of the detention of a suspect. (Article 60(1)[2]) In practice this condition is interpreted to mean that a mere abstract "fear of the destruction of evidence" is sufficient and, furthermore, such a fear extends not only to evidence concerning the legal elements of an offence, but also to evidence of mitigating circumstances in general. Accordingly, if the investigative authorities have a subjective fear of the destruction of evidence, the detention of a suspect tends to be easily permitted. Moreover, because there is no adversarial procedure in accordance with which both parties contest the validity of the detention, such as the preliminary examination in the Anglo-American legal system, judges relying only on the evidence collected by the investigative authorities tend to accept the possibility of the destruction of evidence. As a result, judges accept more than 99% of all requests from prosecutors for detentions. Hence, it is fair to say that the judicial check on detention is merely pro forma. (According to the "Annual Report of Judicial Statistics 1996," the rejection rate of requests for detention in that year was 0.31%.)


However, because article 14 paragraph 2 of the Covenant guarantees to a suspect the right to the presumption of innocence, it is manifestly irrational to detain a suspect presumed to be innocent on the grounds of a "fear of destruction of evidence." As article 9 paragraph 3 explicitly shows, the purpose of detaining a suspect who is criminally charged is to ensure he will "...appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement," and not to demonstrate the guilt of the suspect. Although principle 36 of the UN Body of Principles for the Protection of All Persons under Any form of Detention or Imprisonment (hereinafter, "the UN Body of Principles") permits the detention of a suspect in such cases as the actions of the suspect can be regarded as a "hindrance to the administration of justice," and the Council of Europe (Committee of Ministers meeting held on June 27,1980) recommended principles applicable to decisions on custody pending trial in which substantial reason for believing a "danger of the suspect's interfering with the course of justice" is justified as one of the reasons of the detention. This rationale is different from the "fear of the destruction of evidence." The point of these principles is not to support the prosecutor's effort to prove the suspect guilty but to guarantee a fair trial.


Therefore, the condition of article 60(1)[2] of the Code of Criminal Procedure must be removed from the list of reasons of detention, and instead it should be replaced by the provision for a "substantial reason for believing danger of interfering with the course of justice."


(2) The Lack of Means by which a Suspect Can Dispute the Rationality of His Custody after Arrest


The Code of Criminal Procedure of Japan has the institution of a quasi-complaint against detention corresponding to the right to habeas corpus in article 9 paragraph 4 of the Covenant.27 However, because this procedure has no explicit provision for the right to complain against an arrest, the Supreme Court has rejected the quasi-complaint against the arrest, modeled on the quasi-complaint against the detention, as having no basis in law. (Supreme Court, Judgement of August 27, 1982) As a result, during the initial 72 hours in jail an arrestee is in a totally helpless situation from the viewpoint of the Code of Criminal Procedure. During this time while an arrestee awaits a court's decision concerning the continuation of his detention, a maximum of 72 hours, the right to demand a remedy from a court for illegal custody, which is guaranteed by article 9 paragraph 4 of the Covenant, is denied to the arrested suspect.


Because the absence of any means to appeal against arrests is clearly a failure of legislation, the government must enact such a measure immediately or the courts must change the case law in order to correct the failure of legislation in such a way that a quasi-complaint against arrest also can be brought.


(3) The Lack of the Institution of Pre-indictment Bail


In current practice even if a suspect in pre-trial detention requests bail, that request is rejected on the grounds that there is no such institution. The reason is that the Code of Criminal Procedure is interpreted to permit the right to request the bail only to a suspect after indictment and not to a suspect before indictment. As a result, a suspect, once detained, is subject to custody for a maximum of 23 days, and cannot request the bail at all.28 Whatever the origin of the current practice, to leave the status quo unchanged clearly violates the right "to trial within a reasonable time or to release" as guaranteed under article 9 paragraph 3 of the Covenant. Hence, the government must immediately create the institution of the pre-indictment bail.


(4) The Reduction of the Institution of the Post-indictment Bail to a Hollow Shell


While article 89 of the Code of Criminal Procedure provides for "bail as a statutory right" to a defendant after indictment, in practice the proportion of defendants who are actually released on bail is only approximately 20%. According to "The Annual Report of Judicial Statistics 1996," the rate in that year was only 16.29%. Indeed, four out of five defendants detained remain in custody after indictment. Moreover, according to the same report, the proportion of successful applications for bail to the total number of applications is 46.86% (8,778 out of 18,732 applications). That is to say, only one half of the requests for bail are successful. While a suspect in a western country, which has adopted the adversary model for its criminal justice system, usually faces trial while released on bail, more than 80% of suspects in Japan face trial while still in custody. Under these circumstances, the so-called right to bail in Japan is far from being a right.29


Although there are several causes for this unacceptable situation, the most important one is that the same reason which is used for detentions, namely a "sufficiently reasonable grounds to suspect that the defendant may destroy evidence," is accepted as the reason for rejecting a request for bail. This condition is interpreted broadly to mean an abstract "fear of the destruction of evidence." If a defendant denies the charge or remains silent, such actions in themselves are regarded as indications of the defendant's tendency to destroy the evidence. As a result, if a defendant disputes the facts, bail before his first hearing in his case is almost impossible. Moreover, even after the first hearing up until the prosecution rests its case, it is difficult to be granted bail. Such a reality breeds cases in which a defendant confesses falsely simply in order to be granted bail. In Japan the severe practice with respect to the bail becomes a tool for coercing confessions. We call this system "hostage justice."


But article 9 paragraph 3 of the Covenant provides suspects with a right to bail and obliges States parties to prevent excessive custody by releasing as many suspects as possible, while imposing conditions to ensure the suspect's presence when required in court. Accordingly, the current practice in Japan with respect to the bail clearly violates this provision of the Covenant.


Therefore, the Government must remove "sufficiently reasonable grounds to suspect that the defendant may destroy evidence" from the provision of the article 89 of the Code of Criminal Procedure and change the practice in such a way that in principle a request for the bail as of right is granted. (5) The Systems of Suspension of Execution of Detention and of Disclosure of the Reasons for Detention


The government in its Fourth Periodic Report mentions the systems of suspension of execution of detention and of the disclosure of the reasons for detention in its discussion of the article 9 paragraph 4 of the Covenant. (paragraph 78)


But, the system of disclosure of the reasons for detention is merely a mechanism by which to disclose the reasons for the detention to a suspect in response to his request after detention has been decided upon, and does not comprise a procedure for deliberation and decision-making in which parties argue for their respective positions. There is nothing comparable to this system anywhere else in the world. In addition, the actual practice of this system has so deteriorated that the prosecutor is even not obligated to attend the disclosure proceedings in open court; a judge merely indicates which legal provision is the ground for the detention. According to the judicial statistics for 1996, while the number of warrants issued for the detention of suspects was 53,881, the number of requests from suspects for the disclosure of the reasons for detention was only 404 and the number of the disclosure proceedings which actually occurred was a mere 304.


The suspension of execution of detention means that the execution of the detention, which was officially decided upon, is suspended at the discretion of the court. Because a suspect has no right to request suspension, all that a suspect can do is to urge the court exercise its discretionary power. Consequently this system is used only for limited reasons, such as the suspect's serious illness and family member's funeral and so forth. According to the judicial statistics for 1996, the number of cases of suspension in that year was only 74.


Therefore, because both systems do not provide suspects with a remedy for custody as of right, as is required under article 9 paragraph 4, the content of the government's report is at least misleading. (6) Arrest and Detention on Separate Charges


Although the government acknowledged in its report that, "[w]hen a person is suspected of having committed two or more crimes, interview with the suspect's voluntary cooperation for a charge other than one for which he/she is detained is generally permitted," the government claimed that this kind of interrogation is made only for the benefit of a suspect and that "...it is not permitted, without reasons to arrest or detain a suspect on the charge, to arrest or detain him/her for the purposes of investigating other charges." (paragraph 79)


However, as the governmental report stated, case law has established the doctrine that evidence acquired on separate charges is to be excluded because such a practice exists and such evidence is actually produced. A recent example is a case in which the police arrested a disciple of the AUM religious cult for the violation of the Minor Offence Act and used the arrest period to interrogate the person concerning a far more serious crime.


Arrest and detention on separate charges for the purpose of investigating another case of primary concern not only violate article 9 paragraph 1 of the Covenant, but also article 9 paragraph 3 by necessarily leading to the secondary arrest and detention on the grounds of suspicion in that primary case.


Section 5: The Absence of Regulation of Interrogations (Articles 7, 10, 14 and Principles 21 and 23 of the UN Body of Principles)

(1) To demand a confession from a suspect by detaining the suspect for as long as 23 days violates principle 21 of UN body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment and articles 7, 10 paragraph 1, and 14 paragraph 3(g) of the Covenant.


The government must forbid investigative authorities to use detention in order to secure a confession, and take proper legislative steps to regulate the conditions of interrogation (duration, methods, etc.). (2) Refusal to permit the presence of counsel during interrogation by the investigative authorities in spite of the suspect's wishes violates the article 14 paragraphs 3(b) and (g) of the Covenant. The government must enact a provision that allows counsel to be present at interrogation. (3) The lack of access by a suspect and his counsel to the record of interrogation, such as the name and status of the investigator, the duration of the interrogation, the starting and ending times, and the location, violates principle 23 of the above-mentioned UN Body of Principles supported by article 14 paragraph 3(b) of the Covenant. The government must take appropriate steps to enact explicit provisions to the effect that a defendant and his counsel can have such access.


B. Subjects of Concern and Recommendations of the Human Rights Committee


At its examination of the Third Periodic Report, the Committee repeatedly expressed its concern that the interrogation of detainees in substitute prisons might be used to coerce confessions. It was also pointed out that the substitute prison system as a whole facilitates degrading treatment, which is prohibited under article 7 of the Covenant.30 The Committee also expressed its concern in relation to articles 9, 10 and 14 that "...most of the time interrogation does not take place in the presence of the detainee's counsel, nor do rules exist to regulate the length of interrogation...." (Comment, paragraph 13) The Committee then recommended that "...pre-trial procedures and the operation of the substitute prison system (Daiyo Kangoku) should be made compatible with all requirements of the Covenant, and, in particular, that all the guarantees relating to the facilities for the preparation of the defence should be observed." (Comment, paragraph 19) C. The Government's Response and its Fourth Periodic Report (paragraphs 80-83)


The Government has not taken any steps to change the methods of interrogation which exploit the detention of suspects in substitute prisons. Although the Fourth Periodic Report contains a subsection entitled, "System and Practice of Interviews" within a section entitled, "Detention of Suspects," the content of the subsection is a mere description of the content of certain articles of the Constitution and of the Code of Criminal Procedure related to the right to silence and the interrogation. The report does not touch the real state of interrogation in Japan. D. Position of the JFBA (1) The State of Interrogation


The system of arrest and detention in Japan aims at the interrogation of the suspect. The main objective of the investigative authorities is to obtain a confession by exploiting detention in a substitute prison, especially in those cases where a suspect denies guilt or refuses to talk.


Investigators do not think that there is anything wrong in pressuring a confession from a suspect. Their rationale is not that confession is "the queen of evidence," but rather that the criminal's confession expresses moral catharsis, which is indispensable for the suspect's rehabilitation and reintegration into the society.31 As a result, when the investigator is confident of the guilt of a suspect and the suspect denies the guilt or refuses to speak, the more serious the investigator the more pressure he will exert to squeeze out a confession, even with the aid of violence or psychological pressure.


The forms of violence are as follows: simple violence, such as hitting a suspect in the head or abdomen or slapping in the face; making a suspect standing at attention for long hours; kicking the chair out from under a suspect; hitting a desk in front of a suspect; yelling loudly close to the suspect's ears, etc. Furthermore, since there is no legal regulation of the duration of interrogations, it is not exceptional for the interview to last from the morning to ten o'clock at night or even until the next morning.32 Because police interrogation can legally last continuously for as long as 23 days, if a suspect denies the guilt, such excessively long interviews can be done daily for the whole 23-day period. This kind of situation has resulted in false confessions, which in turn have lead to numerous miscarriages of justice.


(2) The Refusal of the Presence of Counsel During Interrogation


The interrogation by the police or the prosecutor of a suspect who has been arrested and detained is done in a closed chamber called a questioning room. In the Code of Criminal Procedure there is no provision which allows or bars the presence of counsel. Hence, we can say that permission for or refusal of the presence of counsel is left to the actual application of the law. But in actual practice even if a suspect requests the presence of counsel, the investigator rejects the request. As a result, a suspect always has to defend him or herself without the aid of counsel during an interrogation.


In addition, the investigator does not have any legal duty to record the whole process of interrogation. While the investigator may make a video tape or audio tape for his or her benefit, e.g., as evidence of the voluntariness of the suspect's statements, there is no system by which the whole process of the questioning is automatically recorded in order to guarantee the fairness of the interrogation. For that reason, even if the suspect later tries to dispute the voluntariness of his statements, there is no evidence other than his own assertions. (In Japan the defendant can testify in the court, but cannot be a sworn witness.)


(3) The Violation of the Covenant by a System Which Tries to Squeeze a Forced Confession


The real state of the interrogation in Japan is such that the investigator can detain a suspect in a police jail for 23 days; keep the suspect incommunicado; and force the suspect who denies the charge or is silent to confess.


The substitute prison system and the restriction of the suspect's right to counsel are used for the common purpose of squeezing out or coercing a confession during interrogation. Accordingly, this system, which is based on coercing confessions, as a whole constitutes "inhuman or degrading treatment" prohibited under article 7 of the Covenant and violates articles 7 and 10 paragraph 1, and article 14 paragraphs 3(b) and (g) by depriving the suspect of his right to counsel and right to silence.


(4) The Activities and Proposals of the JFBA


The JFBA in 1966 adopted a document entitled, "Action Program for the Reform of Criminal Justice System" and thereby made clear the way to judicial reform. In this program, the JFBA made the following proposals for reforming the above-described dismal state of interrogation in Japan.


(a)The substitute prison system (Daiyo Kangoku) must be abolished.


(b) In order to guarantee the right to silence, the right for an attorney to be present at questioning must be written in the Code of Criminal Procedure as an explicit provision.


(c) In order to make the process of the interrogation transparent, the investigator's obligation to record the process of the interview (the starting and the ending times of the questioning, the total time, the location, the identity of the investigator etc.) by means of audio-tapes or videotapes and the defendant's and counsel's right of access to these records must be expressed in the form of explicit, legal provisions.


(d) The length, timing and the method of questioning must be legally regulated.


These proposals are identical with the recommendations given by various Committee members to the representative of the Japanese government. Furthermore, they make it clear that in order to improve the present situation counsel should, in certain circumstances, advise a suspect to refuse to be questioned or to sign an investigator's record of the suspect's oral statement.


However, the Ministry of Justice and the Prosecutor's Office have systematically criticized lawyers who implement these proposals, claiming that their line of defense for their clients (i.e., advice to remain silent or decline to sign statements drafted by investigators) is an abuse of rights and obstruction of the investigation.33 In addition, they claim that a consultation on a system of state-appointed attorneys, which has been proposed by the JFBA, requires as a precondition a consensus among lawyers, prosecutors and judges on the proper role of a defence counsel.34


But what is urgently needed now in the Japanese criminal justice system is correction of the defects in the system, not a discussion of the propriety of the advice given by certain, defense lawyers. To maintain that no reform of the system is possible without first agreeing on the proper role of defense lawyers means the prolongation of the status quo, which is not appropriate behavior for a State Party to the Covenant. The government of Japan must clearly understand that it cannot any longer leave in place this defective system.


Section 6: The Defect in the Habeas Corpus Law (Article 9 of the Covenant)

Article 4 of the Habeas Corpus Rule, which are the implementing regulations for the Habeas Corpus Law, prevents the Habeas Corpus Law from functioning properly because it limits the reasons for obtaining a writ of habeas corpus to: 1) the absence of a legal right to place a person in custody; or 2) manifest violation of due process, and also requires the exhaustion of all other remedies. Therefore, article 4 of the Rules violates article 9 paragraph 4 of the Covenant, which guarantees the right to seek a judicial remedy to an unlawful detention.


The government must eliminate article 4 of the Habeas Corpus Rule as soon as possible.


B. Subjects of Concern and Recommendations of the Human Rights Committee


Although the Japanese Law of Habeas Corpus was not directly discussed in the consideration of the Third Periodic Report by the Committee, an intense discussion occurred of the custody of suspects who have been criminally charged and of the method of restoring the liberty of a suspect held in custody illegally. The Committee expressed its concern that the articles 9, 10 and 14 are not completely observed (Comment, paragraph 13) and recommended "...pre-trial procedures...should be made to be compatible with all requirements of the Covenant...." (Comment, paragraph 19)


C. The Government's Response and its Fourth Periodic Report


The Government has done nothing to improve the system created by the Law of Habeas Corpus. The government in its Fourth Periodic Report mentions the system for Suspension of the Execution of Detention as a means of rescuing a suspect from custody, but it does not discuss the Habeas Corpus Law.


D. Position of the JFBA (1) Japan enacted the Habeas Corpus Law in 1948 following the creation of its new Constitution. The law itself is problematic, because it limits the beneficiaries of the law to "a person who is bodily restrained without any procedure established by law" and excludes from its protection a person who is, as a substantive as opposed to a procedural matter, held in illegal custody. What is worse, Article 4 of the Habeas Corpus Rule, which are the implementing rules for the Habeas Corpus Law, limits protection to "the case where a certain law or ordinance of procedure was seriously violated and the violation is obvious, or where the decision or disposition relating to custody has been rendered without legal grounds." The same rule also determines that a "request for a writ of habeas corpus shall be suspended until it comes clear that any alternative way will fail to reach the goal of rescue within a reasonable period when there is any possible alternative way to rescue a person from illegal custody."


As a result, the Habeas Corpus Law cannot play the proper role envisioned at the time of its creation. At present, habeas corpus is used only in cases where the illegal custody is "obvious and remarkable," such as the request for the surrender of an infant.


(2) When the JFBA conducted research on the Japanese Law of Habeas Corpus in connection with its usefulness as a remedy for illegal confinements in mental hospitals, it discovered that it is article 4 of the Habeas Corpus Rule which transforms the Japanese habeas corpus system entirely from the Anglo-American version of the remedy. This rule, because it blocks the proper functioning of the writ, violates article 9 paragraph 4 of the Covenant. Consequently, the JFBA made following recommendations in a document entitled, "The Report on The Legal System of Habeas Corpus." (dated February, 1992) (a) Article 4 of the Habeas Corpus Rule should be eliminated. (b) Even if article 4 cannot be totally eliminated, the requirements for the remedy must be eased up by removing the conditions of "obviousness" and "remarkableness," and, in addition, the availability of the remedy must be expanded by relaxing the exhaustion ("final resort") requirement.


(3) The government of Japan, however, has ignored this issue and done nothing to improve the system. The status quo, which violates article 9 paragraph 4 of the Covenant, must be corrected as soon as possible.


Section 7: The Restriction of Access to Defense Counsel and The Institution of Consultation Designation (Article 14 of the Covenant)


The article 39 paragraph 3 of the Code of Criminal Procedure, which allows the designation by the investigative authorities of the date, place, and time of a defense counsel's interview with a suspect, violates article 14 paragraphs 3(b) and (d) of the Covenant. Therefore, the government must eliminate this provision.


B. Subjects of Concern and Recommendations of the Human Rights Committee


During its consideration of the Third Periodic Report the Committee centered its discussion of the treatment of suspects around the issue of substitute prisons. As a consequence, the discussion of restrictions on interviews with defense counsel focussed on the restrictions during the long periods of the interrogation of suspects detained in substitute prisons.35 The Committee expressed, in the Comment, paragraph 13, its concern that: ...pre-trial detention takes place not only in cases where the conduct of the investigation requires it; the detention is not promptly and effectively brought under judicial control and is left under the control of the police; most of the time interrogation does not take place in the presence of the detainee's counsel, nor do rules exist to regulate the length of interrogation; and the substitute prison system (Daiyo Kangoku) is not under the control of an authority separate from the police. In addition, the legal representatives of the defendant do not have access to all relevant material in the police record, in order to enable them to prepare the defence. Furthermore, the Committee recommended in the Comment, paragraph 19 that: With a view to guaranteeing the full application of articles 9, 10 and 14 of the Covenant, ...pre-trial procedures and the operation of the substitute prison system should be made to be compatible with all requirements of the Covenant and, in particular, ... all the guarantees relating to the facilities for the preparation of the defence should be observed.


C. The Government's Response and its Fourth Periodic Report (paragraphs 84-92)


The government of Japan has taken no action to lift the restrictions on consultations with defense counsel nor has the government eliminated article 39 paragraph 3 of the Code of Criminal Procedure. The government in its Fourth Periodic Report treated the issue of article 39 paragraph 3 of the Code of Criminal Procedure as an issue related to article 10 of the Covenant, but the JFBA takes the position that the issue in question is actually related to article 14 paragraphs 3(b) and (d).


The government stated in its Fourth Periodic Report concerning the "right to consultations" that it, "...is guaranteed by article 34 of the Constitution and article 39 paragraph 1 of the 'Code of Criminal Procedure,'....However, this right is not an absolute one and can be restricted if its restriction is compatible with the spirit of the Constitution." With respect to the kinds of cases in which restriction is legitimate the government states that consultaions with defense counsel can be refused "...(a) by exercising the consultation designation in accordance with article 39 paragraph 3 of the 'Code of Criminal Procedure,' or (b) based on the administrative needs of the facility in which the suspect is detained." (paragraph 85)


D. Position of the JFBA (1) Interference with Interviews by Illegal Designation


Representative examples of the restriction of the right to legal consultations are as follows: (a) In order to have an interview with a suspect, two lawyers went to the Metropolitan Police. Both of them were prevented from interviewing the suspect because a police officer asserted, with no legal basis whatsoever, that it was not permitted for two lawyers to consult with a suspect at the same time. A court ordered the police to pay 200,000 yen in compensation. (Tokyo District Court, Judgment of March 28, 1995) (b) A prosecutor rejected a defense counsel's demand for an interview with a suspect on the grounds of "a scheduled interrogation" without designating another date for the interview. The same prosecutor also delayed the start of an interview with the suspect by another lawyer three times without a legitimate reason. Consequently, the two lawyers filed a lawsuit against the state for damages. (Tokyo District Court, Docket No. 8422 wa [1997]) (c) When two lawyers tried to interview an indicted defendant the warden of the prison in which the person was detained allowed only a short period of time for attorneys to interview the man under a prosecutor's designation. Such a designation is only allowed before indictment. Eventually, the Japanese government admitted the plaintiffs' claim and paid 300,000 yen to each lawyer as consolation money. (Takamatsu District Court, Admission of an application, July 15, 1996) (d) A prosecutor rejected a defense counsel's demand for an interview with an indicted defendant on the grounds of interrogation on a separate charge other than the one for which he was detained. As a result, the counsel filed a lawsuit against the state for damages. (Tokyo District Court, Docket No. 9930 wa [1997])


Even if an interview is permitted, the prosecutor usually restricts its duration to 15-20 minutes. Taking into consideration the fact that a prosecutor can detain a suspect for as long as 23 days and interrogate the suspect daily for long hours regardless of regular working hours, the time during which defense counsel can consult with a client is too short. Thus, the institution of restricting interviews by designation, even though it permits some consultations, nevertheless violates the right of consultation between a suspect and defense counsel.


Although the institution of the Appeal of Dissatisfaction exists (a quasi-complaint against such restrictions), since the onus of the appeal is on the suspect or his defense counsel, and a ruling takes time, (a half-day for the counsel to file the appeal and until the next day, in most cases, for the issuance of the court's ruling), this mechanism is not an effective means for prompt redress.


(2) The Application of the Covenant


All the cases described above involved an illegal designation exercised by prosecutors and the police in the application of article 39 paragraph 3 of the Code of Criminal Procedure. The provision itself, however, can be said to violate article 14 paragraphs 3(b) and (d) of the Covenant. Because Article 39 paragraph 3 of the Code of Criminal Procedure violates the UN Body of Principles with respect to both the procedure and the reason for restricting interviews, and since principle 18 of the UN Body of Principles specifies the possible, legitimate restrictions on the right to consult with defense counsel guaranteed under article 14 paragraphs 3(b) and (d) of the Covenant, the violation of principle 18 constitutes a violation of article 14 paragraphs 3(b) and (d) of the Covenant.36


Therefore, the JFBA proposes the elimination of this provision of the Code of Criminal Procedure.


Section 8: The Restriction on Interviews with Defense Counsel--The Administrative Needs of the Facility (Article 14 of the Covenant)

Under article 122 of the Prison Law Enforcement Regulations and the practice based on that provision the time for interviews between a suspect or a defendant and defense counsel in detention facilities, except in substitute prisons (daiyo kangoku), is limited to the regular working hours of the prison. This article and its application violate article 14 paragraphs 3(b) and (d) of the Covenant. The government must rectify this regulation and the practice as soon as possible.


B. The Government's Response and its Fourth Periodic Report (paragraphs 90-92)


The position of the government in its Fourth Periodic Report can be summarized as follows. Limitation based on the administrative needs of a custodial facility on the times for interviews between a suspect or a defendant and defense counsel are natural and inevitable. However, in spite of Article 122 of the Prison Law Enforcement Regulations, which limits the times for interviews to the regular working hours of the detention facilities, those facilities allow interviews on holidays under certain conditions and also police custodial facilities make an effort to allow, as much as possible, interviews on holidays and outside of regular working hours. Thus, an effort to reduce the restrictions is made.


C. Position of the JFBA (1) The government in its Fourth Periodic Report pointed to the fact that "consultations at midnight may be rejected unless it is an emergency" as an example of the restriction of interviews for the sake of the administrative needs of the facility. This kind of explanation is entirely misleading because that it seems to imply that except for such cases, interviews are allowed.


It must be conceded that there has been an easing of restrictions on interviews in substitute prisons on holidays and outside of regular, working hours. Accordingly the conflict between defense lawyers and the police have been reduced. At detention facilities, however, it is quite exceptional for interviews to be permitted outside of working hours, that is, from 5:00 p.m. to 8:30 a.m. the next morning. According to the statistics of the Ministry of Justice, from June 1, 1995 to May 31, 1996 the number of interviews allowed outside of regular, working hours on weekdays in all detention facilities in Japan (detention centers, prisons and their branch facilities) was only 110. The number in all seven of the detention centers (Osaka, Tokyo and other places) was a mere 3; the number at the Tokyo Detention Center was zero. Furthermore, in the case of Tokyo Detention Center, an application of an interview in regular, working hours must be filed by 3:30 p.m.; if the application is not filed before then, an interview is not allowed on that day. However, since it takes from thirty minutes to an hour for an interview to start after an application is submitted, even if one had applied at 3:30 p.m., there is little or no time for an interview before closing time at 5:00 p.m.


Although interviews on holidays are permitted under certain conditions, on weekends interviews are set on the Saturday mornings by the authorities, except in the case of the first interviews of a suspect in the facility. The assignment of interviews to Saturday mornings is, generally speaking, nothing more than compensation for a recent change in regular, working hours. Saturday mornings until recently were regular working hours for the governmental facilities, but they are no longer so. Hence, it can be said that interviews on holidays are in principle forbidden.


As a result, the treatment of a suspect and a defendant by the authorities with respect to the exercise of the right to the aid of a defense counsel differs greatly in accordance with where he or she is detained in a prison or detention center, or in a substitute prison. It can be said safely that this kind of inequality in the treatment is based on the authorities' purpose to preserve the substitute prison system.


Although JFBA has been pressing for the removal of restrictions on interviews in the detention facilities outside of working hours, the Ministry of Justice continues to reject this demand due to the plan to reduce the number of national civil servants and due to budget limitations. That is to say, in Japan due to budgetary constraints, interviews between defense counsel and their clients in the detention facilities, such as detention centers, during the period from 5:00 p.m. to 8:30 a.m. are, in principle, forbidden.


(2) The excuse of administrative needs for the restriction of interviews is not applied only to the issue of working hours; it is also used in connection with the lack of space or rooms for interviews. Hiroshima District Court on November 13, 1995 ruled in favor of a lawyer's demand for damages from the state. The Public Prosecutor's Office had rejected the lawyer's request to interview a suspect due to the lack of facilities. Indeed, in Japan only seven Public Prosecutor's Offices have interview rooms available for defense counsel and a suspect; in Public Prosecutor's Offices without such interview rooms a request by defense counsel for an interview with a client is normally turned down. It is not clear whether despite the ruling by the Hiroshima District Court there will be any improvement on this issue.


(3) The situation described above in section (1) above is due to article 122 of the Prison Law Enforcement Regulations which says "the interview in the detention facilities such as detention centers out of the working hours is not allowed." Hence, interviews out of regular, working hours are forbidden in principle, not only, as suggested by the government's report, in the case of a "midnight interview without urgent reason."


Although it might be acceptable for the restriction of interviews to be limited to the exceptional cases, such as a "midnight interview without urgent reason," the sweeping restriction of interviews for such reasons as the limits of working hours and the lack of interview rooms violates the guarantee "to have adequate time and facilities for the preparation of his defence" of article 14 paragraph 3(b) of the Covenant and "to defend himself ...through legal assistance of his own choosing" of subsection (d).


Furthermore, principle 18 paragraph 3 of the UN Body of Principles states: The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order. The restrictions of interviews in Japan based on the limitations of working hours cannot be justified as the restriction in exceptional circumstances, and hence violate principle 18.


Article 122 of the Prison Law Enforcement Regulation must be eliminated quickly and the practice based on it must be corrected as quickly as possible.


CHAPTER 4: THE SYSTEM OF CAPITAL PUNISHMENT

Section 1: The Situation of Capital Punishment in Japan (Article 6 of the Covenant)

The number of the crimes which can lead to capital punishment because of the Criminal Code and other related laws reaches up to seventeen, including many political crimes. This kind of the legal system with respect to capital punishment violates article 6 paragraph 2 of the Covenant. The government must correct the related laws in order to reduce the number of the crimes which could result in to capital punishment.


B. Subjects of Concern and Recommendations of Human Rights Committee


The Committee in its examination of the Third Periodic Report of the government of Japan stated that "the Committee is disturbed by the number and nature of crimes punishable by the death penalty under the Japanese Penal Code. The Committee recalls ...that those States which have not already abolished the dearth penalty are bound to apply it only for the most serious crimes," (Comment, paragraph 12) and declared, "the Committee further recommends that ... in the meantime, that penalty should be limited to the most serious crimes." (Comment, paragraph 18)


C. The Government's Response and its Fourth Periodic Report (paragraphs 61-67)


The government has done nothing to reduce the number of crimes that could lead to capital punishment, still less to abolish capital punishment itself. Although The Criminal Code was changed into colloquial form in 1995, a substantive reduction of the number of the crimes that could lead to capital punishment did not occur. The government claims in its Fourth Periodic Report that in Japan only persons who have committed serious crimes are sentenced to death and that the majority of citizens agree with the idea that the person who has committed a serious crime should be executed.


D. Position of the JFBA (1) Domestic Statistics


It cannot be said that the majority of the Japanese people are in favor of retaining capital punishment. The questions in the poll organized by the Government are clearly biased. The alternatives offered in the poll organized by the government in September, 1994 are just three: 1) capital punishment must be totally eliminated (13.6% of all respondents); 2) capital punishment is sometimes unavoidable (73.8%); and 3) I do not know (12.6%). There is no mention in the survey questions of the possibility of alternative punishments or of the miscarriage of justice. Still, if we look more closely at the people who chose alternative 2 in the poll, we will find that among those people only 53.2% said that capital punishment should continue in the future and 39.6% said that capital punishment could be eliminated in the future in accordance with some kind of change in circumstances. Hence, 39.2% of the total are unconditionally in favor capital punishment (73.8% x 53.2%), 42.8% are conditionally or unconditionally against it (73.8% x 39.2% + 13.6%). That is to say, the latter group is larger than the former by 3.6%. If alternative punishments and the possibility of the miscarriage of justice were added to the questions, the difference between the number of persons opposed to the death penalty and those supporting it would appear to widen.


Moreover, a poll run by Asahi Shimbun Newspaper in June, 1994 among Representatives in the Lower House of the Diet showed 40.2% is in favor of the death penalty and 47.2% against the retention of capital punishment. In addition, an NHK poll in July, 1994, which surveyed opinions towards the abolition of capital punishment with the proviso that capital punishment would be replaced by life in prison, shows 43% against abolition and 47% in favor the elimination of capital punishment.


(2) Application of the Covenant


The Committee stated in paragraph 6 of its general comment 6 (sixteenth session, July 27, 1982) as follows: While it follows from article 6 (2) to (6) that States parties are not obliged to abolish the death penalty totally, they are obliged to limit its use and, in particular, to abolish it for other than the "most serious crimes". Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the "most serious crimes". The article also refers generally to abolition in term which strongly suggest (paragraphs 2 (2) and (6)) that abolition is desirable. The Committee concludes that all measures of abolition should be considered as progress in the enjoyment of the right to life within the meaning of article 40, and should as such be reported to the Committee.


Hence, the Japanese government must correct the related laws in order to reduce the number of crimes that could lead to capital punishment.


Section 2: Inhumanity of the Procedure for Executions (Articles 6, 7 and 10 of the Covenant)

The practice of announcing the time of execution to death-row inmates only one or two hours before the actual execution without prior announcement to the family is inhuman and deprives them of the opportunity exercise as many measures of redress as possible, such as appeals for rehearing, suspension of the execution and amnesty. Hence this practice violates articles 6 paragraph 4, 7, and 10 paragraph 1 of the Covenant. The scheduled date of execution must be announced sufficiently before that date so that inmates can exhaust legal measures, namely at least one month before the execution date. Moreover, the execution of elderly and mentally handicapped persons violates article 7 of the Covenant and hence must not be allowed.


B. Subjects of Concern and Recommendations of Human Rights Committee


The Committee stated, "In particular, the Committee finds that ...the failure of notification of executions to the family are incompatible with the Covenant." (Comment, paragraph 12)


C. The Government's Response and its Fourth Periodic Report (paragraphs 65-66)


The Japanese government has not acted at all in spite of the concern expressed by the Committee. In its Fourth Periodic Report the government claimed that prior notification of the execution date imposes unnecessary mental agony on the family and that a meeting between an inmate and his or her family immediately before execution would disturb the inmate too much for him or her to be able to maintain calmness. Moreover with respect to inheritance and similar matters, the will of the inmate has been ascertained long before the execution, so there is no significant problem in this regard.


D. Position of the JFBA (1) The Lack of Prior Announcement of the Execution Date to Inmates


The announcement to an inmate of the time of an execution is made on the very day of the execution about one hour before it occurs. In Japan the announcement used to be made by the night before the execution and consequently the inmate had time to make a will and meet with his family for one last time. For example, an inmate named Kiyohachi Horikoshi, who was executed on December 7, 1975 in Tokyo Detention Center, saw his mother one day before the execution. However, in the case of Kiyoshi Okubo, who was executed on January 22, 1976 in the same prison, the announcement was made to him on the morning of the very day of the execution. Since that date, announcements to inmates started to be made as a general rule on the morning of the execution day. (See Kimiko Otsuka, Ano shikeishuu no saigo no shunkan [The Last Moment of Famous Death-row Inmates] Raibu Publishing Company)


In the case of an execution on August 1, 1997, Masashi Daidouji who lived in a neighboring cell heard a voice of protest at around 9 o'clock. The voice faded before long, according to Daidouji. (See Kitakobushi Newsletter, vol. 71, p. 25 and 27)


Because executions usually occur in the morning, death-row inmates suffer from fear of execution every morning. The Committee in its paragraph 13.7 of Earl Pratt and Ivan Morgan v. Jamaica (210/1986; 225/1987)(April 6, 1989) found withholding for about 20 hours of the announcement of a decision to suspend the executions until 45 minutes before the scheduled time of execution was cruel and inhuman treatment in violation of article 7 of the Covenant. Similarly, the sudden announcement of an execution is not compatible with the Committee's general comment 7 (16)(adopted on July 17, 1982).


(2) Lack of Announcement of the Execution Date to the Family of a Death-Row Inmate


The prior announcement of the execution date to the family has still not been instituted in spite of the Committee's recommendation to this effect. The family is informed of the fact of an execution only after the fact with the words, "[w]e parted with the inmate this morning" and is then asked whether or not they want to take care of the corpse.


In its Fourth periodic report the government claims, in order to justify current practice, that the making of a will and the treatment of inheritance etc., are taken care of ahead of time in a reasonable fashion. Nevertheless, the fact is that the so-called "will" is usually made during the few minutes immediately before the execution in the form of a message to the warden. That is the reality.


The cases of Shuji Kimura executed on December 21, 199537 and of Norio Nagayama executed on August 1, 1997 underscore the reality of the situation.38


(3) The Total Deprivation of Measures for Rescue from Execution


The absence of a prior announcement of the execution date to the inmate and the family means extremely cruel treatment of the inmate and the family. Along with an extreme restriction of communication between an inmate on death row and the outside world, the absence of prior announcement also means that the inmate has no possible means to initiate procedures to seek remedies with the aid of his or her family.


This situation clearly violates article 6 paragraph 4 of the Covenant, which provides that: "[a]mnesty, pardon or commutation of the sentence of death may be granted in all cases."


(4) Indiscriminate Cruelty


Old persons and mentally handicapped persons can be indiscriminately executed. Tetsuo Kawanaka, who was executed on March 26, 1994 in Osaka Prison, had been suspected already during his trial of suffering from schizophrenia and his disease progressed after the trial. (Section 3 of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, ECOSOC 1984/50 May 25, 1984 and section 1(d) of the UN General Assembly Resolution on the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty 1989)


Even if execution is allowed under the Covenant, the absence of prior announcement of the execution date to the family shows a cold-bloodedness and an insensitivity to the feelings of the family members who will lose their loved one through the actions of the state.


This kind of treatment is not only a cruel and inhuman treatment in violation of articles 7 and 10 of the Covenant, but also an arbitrary and unlawful interference with the family, and hence violates the article 17 of the Covenant.


Section 3: The Lack of Procedural Guarantees with Respect to Capital Punishment

Because the criminal procedure that leads to death sentences violates article 14 paragraph 3(b) and (d)of the Covenant, the execution of death row inmates must be suspended immediately.


B. The Government's Response and its Fourth Periodic Report


For about three years and four months, until the execution of capital punishments restarted on March 26, 1993, the Ministers of Justice of this period did not consent to executions and hence the implementation of the death penalty was virtually suspended. In 1993, however, the year in which the Third Periodic Report of the government was filed, seven inmates were executed after March 26. Similarly, two were executed in 1994; six in 1995; six in 1996; four in 1997; and three as of August, 1998. During this entire period the government has done nothing to implement changes in the criminal procedure related to capital punishment. Nor has the government responded to the petition of the JFBA. (See appendix: 'Report of the Research carried out by the Committee for Execution Cases')


C. Position of the JFBA (1) Because in Japan a suspect is assigned a court-appointed attorney only after indictment, an indigent suspect can have a lawyer's support only after indictment. As a result, even if in a case that can result in capital punishment, one which especially needs legal counsel before indictment, the indigent suspect is virtually deprived of the right to counsel in the investigation stage. The Capital Punishment Study Group in the Human Rights Protection Committee of the JFBA conducted a survey from 1992-93 among 56 death row inmates whose sentences had been confirmed as of November, 1992. According to the survey (with 49 responses), 26 individuals, according to the inmates themselves or their attorneys, stated that they had no consultation with defense counsel prior to indictment; 25 individuals believed that they had no right to counsel before indictment; and 18 stated that if they could have had access to defense counsel before indictment, the court proceedings could have gone a different way. (Jiyu to Seigi [Freedom and Justice Journal] vol. 45 no. 5.) One should note in passing that article 14 paragraph 3 of the Covenant provides that "everyone" is entitled to access to a defense counsel; suspects are not excluded from the protection of the article. The Committee in paragraph 11.5 of its view on Carlton Reid v. Jamaica (July 20, 1990; 250/1987), stated: As the Committee noted in its general comment 6(16), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies the "the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by the independent tribunal, the presumption of innocence, the minimum guarantees for the defence and the right to review by a higher tribunal". Also, article 5 of the UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (May 25, 1984 ECOSOC Resolution 1984/50) provides as follows: Capital punishment may only be carried out pursuant to a final judgement rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings. Furthermore, the European Court of Human Rights ruled that article 6(3)(d) of the European Convention on Human Rights, which is similar in content with article 14 paragraph 3(d) of the Covenant, can be applied in the investigation stage.


(2) In the Japanese legal system there is a period of time without attorney, just after indictment or appeal and before a court-appointed attorney is assigned. As a result death sentences could become final without an attorney. For example, after an appeal against death sentence was filed and before the appointment of a court-appointed counsel, the appeal was withdrawn by the accused and as a result the capital sentence became final in November, 1993. (The inmate's name was Makino Tadashi)


(3) In the Japanese legal system the prosecutor is granted the right to appeal even with respect to the sentence. Accordingly appeals by the prosecutor to the detriment of the defendant can include appeals seeking capital punishment. Although the spirit of the Covenant requires the prohibition of appeals to the detriment of the defendant, especially such appeals which seek capital punishment, nevertheless this has not been established in Japan. In a case of a death row inmate whose capital sentence has carried out in August, 1997 (Nagayama Norio), the High Court had ordered life imprisonment in 1981, but the prosecutor appealed to the Supreme Court, and in 1983, the Supreme Court reversed the High Court ruling and on remand the High Court imposed the death sentence. In 1990, the death sentence was finalized by the Supreme Court and carried out in 1997. The number of cases in which prosecutors appeal to the Supreme Court seeking the death penalty against the life imprisonment rulings by the High Courts has been increasing since 1996. The number as of June, 1998 reached five.


(4) In the Japanese legal system the following are not allowed in death penalty cases: mandatory appeals against death sentences, amnesty for death row inmates, the right to petition for a reduction of sentence,39 application for a new trial by a court-appointed attorney, support of an attorney in relation to the execution itself, injunction based on motion or ex officio in the case of filing a new trial.


(5) The system of legal aid which supports lawyers' efforts in capital cases is insufficient. The Committee in the above-mentioned view, Carlton Reid v. Jamaica, stated at paragraph 13 that: The Committee considers that in cases involving capital punishment, in particular, legal aid should enable counsel to prepare his client's defence in circumstances that can ensure justice. This does include provision for adequate remuneration for legal aid.


(6) Implementation of the Covenant


The Committee repeatedly stated that "[i]n capital punishment cases, the duty of States parties to observe rigorously all the guarantees for a fair trial set out in article 14 of the Covenant is even more imperative." Thus, the procedure which could lead to a death sentence in Japan violates article 14 paragraph 3(b) and (d) of the Covenant. Therefore the execution of death sentences in Japan should be suspended immediately.


Section 4: The Problem of the Ratification of the Second Optional Protocol

The Japanese government must start deliberations for the ratification of the Second Optional Protocol.


B. Subjects of Concern and Recommendations of Human Rights Committee


The Committee in its comment paragraph 16 after its examination of the Japanese Government's Third Periodic Report recommended the ratification of the Second Optional Protocol and in its comment in paragraph 18 stated that "[t]he Committee further recommends that Japan take measures towards the abolition of the death penalty...."


C. The Government's Response and its Fourth Periodic Report (paragraph 67)


However, the Japanese government has not made any move towards the ratification of the Second Optional Protocol. The government has not even made any effort to inform the Japanese people that the Committee made such a recommendation. In addition, no measures for the suspension and abolition of the death penalty have been taken. The government's report tries to justify the delay by stating that because the sentiment of the people and the domestic legal system are directly involved in the abolition of capital punishment, the government will deliberate carefully on this issue


D. Position of the JFBA (1) The above-mentioned (in Section 1: The Situation of Capital Punishment in Japan) survey indicates a clear change in public opinion and hence people's sentiments cannot be said to be an obstacle to the ratification of the Second Optional Protocol. Furthermore, there will be no difficulty in the adjustment of the domestic legal system.


(2) Handling the Implementation of the Covenant


The Committee in paragraph 6 its general comment 6[16] (July 27, 1982) stated: The article also refers generally to abolition in terms which strongly suggest (paragraphs 2 (2) and (6)) that abolition should be considered as progress in the enjoyment of the right to life within the meaning of article 40, and should as such be reported to the Committee. The Committee notes that a number of States have already abolished the death penalty or suspended its application.


Hence, the government of Japan must immediately start deliberations for the ratification of the Second Optional Protocol.


CHAPTER 5: TREATMENT OF PERSONS IN CRIMINAL DETENTION

Introduction

In 1997, Japan's prisons and detention centers, exclusive of police station detention cells, held on average approximately 50,000 persons per day, including 41,000 convicts and 8,900 unsentenced detainees. With about a rate of 40 prisoners per 100,000 population, Japan is among the countries having the lowest imprisonment rates. Penal detention facilities employ 17,000 staff workers, including 698 vocational instructors, 567 medical personnel, and 111 instructors. With the exception of a small number of additional medical staff, the remainder are uniformed security personnel.


During the consideration of the Third Periodic Report of Japan, the Committee included among its principal items of concern a recommendation that further improvements be made in measures to prevent all forms of unfair treatment of persons in detention. The government of Japan, other than noting in its Fourth Periodic Report with regard to article 7 of the Covenant that law enforcement officials are given human rights education in order that they not commit human rights violations, made no mention at all of problems in the system for remedying violations of human rights or ways of correcting these problems in the system.


As the following, detailed analysis shows, there are major problems urgently requiring improvement concerning the human rights situation of persons in detention in Japan, particularly with regard to the system of rules and the filing of complaints. There are special problems in the case of foreign inmates whereby extremely serious human rights violations occur because they are unable to adapt to "Japanese-style treatment." The greatest problem of all is that the administrators of Japan's penal system do not recognize even the existence of this kind of problem which requires improvement.


In the following, we offer comments on problems common to all persons held in penal institutions, which concern the system of rules, the method of filing of complaints and living conditions. Following this, we discuss individual problems experienced by different types of prisoners, i.e., unsentenced detainees, inmates, death row inmates, and foreign detainees. Because human rights violations against female prisoners occur primarily in substitute prisons (Daiyo Kangoku), this problem is covered in the section 1 of Chapter 3 entitled, "Problems of Substitute Prisons (Daiyo Kangoku)."


Section 1: Problems Concerning Prison Rules

Failure to try to root out violence and ill-treatment by guards, the lack of an impartial and effective system of remedies to deal with complaints concerning such treatment, the unnecessary severity of rules in prison facilities, arbitrary punishments for infractions of these rules, and the use of leather handcuffs on prisoners in the "protection cells" (hogobo) of penal institutions are violations of articles 7 and 10 paragraph 1 of the Covenant and article 27 of the Standard Minimum Rules for the Treatment of Prisoners (hereinafter "SMR"), among others.


There must be a review of the rules for penal detention facilities and the practice of using leather handcuffs must be abolished. The right to mount a defense in disciplinary actions must be ensured and an impartial and effective system for complaints of human rights violations must be established.


B. The Government's Response and its Fourth Periodic Report (paragraphs 94-96, 111-112)


With respect to inspections of body cavities and the practice of round-the-clock detention in solitary confinement cells, the Fourth Periodic Report states that the rules and order in penal facilities must be maintained "securely and unwaveringly." (paragraph 111) It says that the ban on talking during work is a "necessary measure for insuring safety during work." (paragraph 95)


C. Enforcement of Rules and the Maintenance of Order (1) Violence by Guards (Articles 7 and 10 of the Covenant, Principle 6 of the UN Body of Principles)


There continues to be a large number of actions initiated under the State Tort Liability Law in regions across the country due to violence and ill-treatment by detention facilities personnel. Some recent reports of suits by prisoners include incidents in the Tokyo Detention Center (Asahi Shimbun Newspaper, January 10, 1996) Kurobane Prison (Asahi Shimbun Newspaper, December 28, 1995), Chiba Prison (Asahi Shimbun Newspaper, March 22, 1996) and Fuchu Prison (Asahi Shimbun Newspaper, July 3, 1996 and November 12, 1996).


An American man held at the Tokyo Detention Center on a theft charge filed a lawsuit in January, 1996 due to a beating received while on his way to court from the Tokyo Detention Center.40


In its November, 1997 report, "Ill-Treatment of Foreigners in Detention," Amnesty International provided information on 18 foreigners who had been subjected to violence and ill-treatment in Japanese Daiyo Kangoku, detention centers, prisons or immigration detention centers. The report includes the case of a Nigerian who received beatings on four separate occasions between February and December, 1994. A number of these cases are covered in Section 8 below, "Special Problems in the Treatment of Foreign Prisoners."


(2) Restrictions on Movements inside Cells (Articles 7, 10 and 14 of the Covenant, SMR 27 and 84)


Under the heading "Rules Within the Cells," the Tokyo Detention Center's "Rules for Detainees" states, "Figure 2 shows the seating position in the cell. When in the cell, do not stand up, lie down or lean on the bedding without permission." The Hiroshima Detention Center's "Rules for Unsentenced Detainees" says with regard to the seating position: 1. The seating position inside the cell is located as shown in Figures 1 and 2. Do not change seats, walk around, lay down, lean on the futon or stand beside the window without permission. 2. Do not touch the bars in the window, look outside or look to see what staff members are doing. In general, prisoners are required to sit cross-legged on the floor in one spot at all times with the exception of bedtime from 6:00 p.m. until 7:00 a.m., and for one 50-minute period after lunch.


The Fourth Periodic Report maintains that there are no restrictions on movement in substitute prisons (Daiyo Kangoku). However, an investigation by the Tokyo Bar Association found that there are instances in which there are prohibitions in substitute prisons against laying down, leaning against walls or walking around. The government in its report appears to be proud that substitute prisons do not have the restrictions on movement which are to be found in detention centers, but as long as there actually are restrictions on movement in substitute prisons, the report of the government is at odds with the facts.


The government maintains that the above-mentioned restrictions on movement within cells for unsentenced prisoners have "necessary and reasonable causes, in order to make it easy for officers to quickly and accurately discover persons who are ailing, who have committed suicide or inflicted self-injury, when they make their inspection rounds." This argument was accepted in a December 25, 1996 decision by the Hiroshima District Court. It is simply inconceivable, however, to think that it would become very difficult to perform such inspections if prisoners were not forced to maintain a fixed position inside their cells. This argument by the government and this district court decision do not make sense.


(3) Prohibitions against Conversation and Looking Around at the Work Place


Among the rules maintained by the Fuchu Prison are the following: - All communication without permission or completing appropriate procedures with other persons, outside institutions or outside organizations are prohibited. 'Other persons' means everyone besides you. - Conversations not conducted in approved places or at approved times are prohibited. - You must concentrate completely on your work. The latter rule is enforced on the assumption that "complete concentration on work" means a prohibition on looking around.


Time magazine has given an especially realistic depiction of the conditions of life in Fuchu Prison.41 It characterizes it as the "silent order." Of this "silent order," the government maintains that talking during work is unnecessary; that it disturbs concentration; that it is a danger to the workers themselves; and that it is necessary to instill in the prisoners a habit of concentrating on work for the sake of their social rehabilitation.42 Places and times at which talking is prohibited are as follows:


Prohibited places: Interrogation waiting rooms, medical examination rooms, dressing rooms, bathrooms, offices, etc.


Prohibited times: Work times (with the exception of quiet conversation relating to the work), bedtime, inspection time, the interval when proceeding from the cell to the work place, during exercise time (for prisoners being held in single cells)


From the above, it can be inferred that conversation is permitted only during group exercise time, meals, breaks or, in communal cells, before bedtime. Thus, talking is completely banned at all times except a few, very short periods of free time.


(4) Strip Searches (Articles 7, 10 of the Covenant, SMR 27)


Miyagi Prison conducts strip searches of prisoners upon their entrance and exit from the living and work blocks. These searches involve internal (anal) examinations and inspections of the backs of each leg, for which the prisoner is required to extend and bend each leg. As an example of the variety of ways by which such requirements are handled, Chiba Prison does not permit prisoners to wear underpants. According to a survey by the Tokyo Bar Association (October 22, 1996), sometimes strip searches are conducted during incarceration in substitute prisons, but these vary greatly. Of 118 respondents, 19 had been required to remove their underwear, 32 had been stripped down to underpants only, 9 had been made to remove upper clothes only and 36 had not undergone strip searches.


In Japan's penal facilities, plastic partitions are installed in visiting rooms, making it impossible for visitors to pass weapons, drugs, etc. to prisoners. Under these circumstances, it is doubtful that there is a need to conduct strip searches indiscriminately on all prisoners in certain facilities.


Although there are no legal provisions which authorize strip searches, nevertheless the government considers them necessary "even without warrants issued by courts, in order to provide for appropriate management and operation of the facilities, to prevent detainees from committing suicide, injuring others or escaping and to maintain security." Consequently the government does not find it unlawful to force a prisoner to stand naked in order to undergo genital and anal inspections. (This was the claim made by the state in a case decided by the Nagano District Court on November 15, 1990.) Such a position amounts to a denial of the individual dignity of persons once they have entered confinement.


(5) Solitary Confinement as Treatment (Gensei dokkyo) as Opposed to Solitary Confinement As Punishment (Keiheikin) (Articles 7and 10 of the Covenant, SMR 31 and 32, UN Body of Principles 6) (a) The Imposition of Solitary Confinement as Treatment


The term "solitary confinement as treatment" means the practice of in detention facilities of putting prisoners in solitary confinement cells for reasons of security or to segregate them from other prisoners. Solitary confinement is imposed 24 hours a day, meaning that work also is performed within the solitary confinement cell. Decisions about who is subjected to this treatment and for how long are left entirely to the discretion of the prison warden. A man now on trial, who had been sentenced to life imprisonment and was kept in solitary confinement for over 13 years at the Asahikawa Prison, was restored to the normal prison regime only after an inquiry about him to the Japanese government by the Special Rapporteur on Torture and Inhumane Treatment of Persons under Detention, Mr. Nigel S. Rodley, and release of Mr. Rodley's report submitted pursuant to Commission on Human Rights resolution 1992/32 (E/CN 4/1995/34). It is by no means rare for a period of "solitary confinement as treatment" to extend for several years. Under "solitary confinement as treatment," the prisoner is forced to sit cross-legged performing light work from 7:50 a.m. until 4:30 p.m., with the exception of two or three 30-minute exercise periods and two or three baths per week. While sitting, the prisoner is forbidden to lean against the wall or extend his or her legs. Exercise and bathing are also solitary. There is no contact with other prisoners, no participation in recreation and no opportunity for conversation. Human Rights Watch strongly criticizes the situation thus: "In Japan, solitary confinement is frequently instituted arbitrarily, without outside scrutiny and often in cases that imply retaliation for a prisoner's complaints. Consequently its use can hardly be described by a word other than 'excessive'."43


(b) Imposition of Solitary Confinement as Punishment


The term "solitary confinement as punishment" refers to 24-hour a day solitary confinement used as explicitly as punishment. Under this regime, exercise periods, bathing and reading are all banned at the same time. Although the prison law specifies a maximum of 5 days during which exercise can be banned as punishment, it is generally interpreted that this does not apply to "solitary confinement as punishment" (keiheikin), which can be imposed for a maximum of two months. During this period exercise and bathing are prohibited. There are some instances, however, in which some exercise and bathing, albeit at greatly reduced frequency, are permitted under this punishment regime.


Prisoners under "solitary confinement as punishment" are required to sit cross-legged from the wake-up call to bedtime, being forbidden to stand up or stretch. There are some cases in which prisoners have been required to keep their eyes closed all day while they sit. Additional punishment may be imposed for the prisoner having merely extended his or her hand. Solitary confinement as punishment is imposed on unsentenced as well as sentenced prisoners. Visits with anyone other than one's criminal defense lawyers are prohibited (i.e. meetings with attorneys representing the prisoner in civil litigation are also banned), and the writing or receiving of letters are banned. The only writing that is not prohibited is the preparation of documents pertaining to the prisoner's trial.


(6) Protection Cells and Leather Handcuffs (Articles 7and 10 of the Covenant, SMR 27, 31, 43) (a) Confinement in Protection Cells


The protection cell (hogobo) is a solitary cell established for confinement of prisoners considered to be at risk of attempting escape, violent acts, suicide or creating disturbances. The protection cell consists of windowless walls except one small thick glass set high up in one wall, lit only by electric light set high up in one wall; the ventilation similarly by an artificial source. There is a toilet designed as essentially a hole in the floor. It can be flushed, but only by guards outside the cell. The floor upon which the prisoner sits is covered with linoleum, rather than the usual straw tatami mat. The prisoner is monitored 24 hours a day by a TV camera. Medical examinations are not permitted prior to confinement.


(b) Use of Leather Handcuffs


Leather handcuffs consist of two moveable bracelets with a belt running through them. They are reinforced by copper wire set in between the two layers of the leather belt (see photo, Appendix). In most cases when prisoners are confined in a protection cell, their hands are bound with leather handcuffs. The handcuffs can be fastened with both hands in front, both hands in back or one hand in front and one hand in back. Because the handcuffs are not removed for meals or use of the toilet, the prisoner must either be fed by a staff member or manage by himself with no hands. The latter applies to urination and defecation as well, for which prisoners in protection cell are made to wear trousers having an open crotch.


On January 21, 1998, the Tokyo High Court ordered that compensation be paid a prisoner who had been held in a protection cell at Chiba Prison. This decision found it to be an excessive measure that the prisoner's hands were bound in back by leather handcuffs all night long, during which time he was unable to clean himself after defecation. He had been forced to choose between "eating like a dog" or being fed against his will by a staff member, causing grave damage to his self-respect, resulting in severe mental anguish and physical pain, which prevented him from sleeping. This decision became final as the state did not appeal.


During this trial, the state maintained that it was not forcing prisoners to "eat like a dog." The reasoning behind this position, however, was that the prisoner could have opted to have been fed by a staff member. But either case can certainly be classified as inhumane treatment.


Numerous other cases of the abusive use of leather handcuffs have been reported. In its June, 1998 report, "Abusive Punishments in Japanese Prisons," Amnesty International documents eight such cases.


(7) Vague Rules and Arbitrary Punishments (Article 14 of the Covenant, SMR 27, 29 and 30, UN Body of Principles 30, 30-2)


Because penalties are administrative procedures constituting additional adverse treatment of a prisoner already incarcerated at a detention facility, there is a need to clarify such procedures in the form of laws and ordinances. Article 29 of the Standard Minimum Rules provides that conduct constituting a disciplinary offence, the types and duration of punishment which may be inflicted and the authority competent to impose such punishment shall always be determined by law or under the regulations of the competent administrative authority; article 30.1 guarantees that no prisoner shall be punished except in accordance with the terms of laws or regulations established under article 29; and article 30-1 of the UN Body of Principles provides that such laws and regulations shall be duly published.


In Japan, however, punishments are not covered by the Prison Law or its Enforcement Rules. Instead, necessary conditions for punishments are determined in accordance with "items for observance," included among the "rules of prison life," which are determined by the director of each detention facility. The JFBA has obtained English language copies of the rules and items for observance for Fuchu prison. This information has never been officially released. The main sections of the prison life rules are reproduced in footnote 44. They provide an insight into how exacting and detailed are the rules which govern the lives of prisoners in Japan.44.45


Punishments are not necessarily imposed automatically upon infractions of these rules, but there is always a possibility that they will be imposed for failure to abide by the directions of prison officers or for protesting. Making a protest to a prison officer is taken as a punishable offence per se, regardless of the reason, and asking guards the reasons for instructions or orders may be taken as a protest. Courts often confirm the legality of such measures.


Detention facilities have punishment review committees, which must consider the imposition of penalties. However, they consist of prison staff only; do not permit prisoners to examine written documents or other evidence against them; or ask prisoners for witnesses. Because prisoners are not guaranteed the right to appoint an attorney, the reviews amount to no more than a ceremony that can hardly answer the criticism that these punishment procedures are unfair and not transparent.


Under such conditions as these, it is unclear what is expected of prisoners and every time a prison officer gives an order, there is a possibility of someone being punished. Thus, the case of the American prisoner Kevin Mara, who was held in Fuchu Prison is not surprising. He received 10 days of "solitary confinement as punishment" (keiheikin) for having his eyes "slightly open" at a time prior to a meal when prisoners' eyes were supposed to be closed. On another occasion he received 5 days of "solitary confinement as punishment" for wetting his fingertips and patting down stray hairs at the back of his head, which a prison officer insisted was "washing his hair at an unauthorized time."


In short, the reality of detention facilities in Japan is that in place of rules set out by laws and ordinances, everything and anything said by prison officers is taken as a rule.


D. Position of the JFBA (1) Violence by Guards


The government has made no positive efforts at eliminating violence and ill-treatment by detention facility officers, in violation of articles 7 and 10 of the Covenant and the UN Body of Principles 7. The government must establish an impartial and effective complaint system to deal with reports of prisoners being subjected to violence and ill-treatment.


(2) Restrictions on Movements within Cells


The requirement at detention centers that prisoners sit cross-legged on the floor at all times other than bedtime is a violation of articles 7, 10 paragraph 1, 10 paragraph 2(a), 14 paragraph 2 of the Covenant and SMR 27 and 84 paragraph 2. This requirement must be abolished immediately.


(3) Prohibitions against Conversation and Looking About at Work Places


The strict prohibitions of conversations among prisoners or of their looking about, which are imposed in prison workshops and other locations inside the facilities, along with the punishments for such violations, are in themselves violations of the prohibition of inhuman or degrading treatment provided for in articles 7 and 10 paragraph 1 of the Covenant.


(4) Strip Searches


The practice of strip searches of prisoners at detention facilities is a violation of articles 7, 10 paragraph 1 of the Covenant and SMR 27. Therefore, the practice of strip searches must be immediately abolished.


(5) Solitary Confinement as Treatment (Genseidokkyo) and Solitary Confinement as Punishment (Keiheikin)


These practices are violations of articles 7 and 10 of the Covenant, SMR 31 and 32, and principle 6 of the UN Body of Principles. So-called "solitary confinement as treatment" should be immediately abolished, and the administration of solitary confinement as punishment must be reformed, eliminating the requirement that prisoners sit cross-legged on the floor, and permitting them adequate exercise and bathing.


(6) Protection Cells and Leather Handcuffs


The use of leather handcuffs on prisoners while they are held in protection cells is a violation of articles 7 and 10 of the Covenant and SMR 27, 31 and 34.


(7) Vague Rules and Arbitrary Punishments


Detention facility authorities have broad discretionary powers in administering rules that are wide-ranging and vaguely defined, and there is no guarantee of the right to legal defense when charges of violations are lodged. This situation violates article 14 paragraph 1 of the Covenant, SMR 27, 29 and 30 and the UN Body of Principles 30 and 30-2.


It is necessary to clarify prison rules by re-issuing them in the form of laws and ordinances. Punishment procedures should include the right to defense by an attorney and should be monitored by a committee including ordinary citizens, academics or other third parties, and the opportunity to make an effective appeal against decisions must be guaranteed.


Section 2: Right to Petition for Redress of Complaints and Entities for the Consideration of Such Complaints (Articles 2, 7, 10, 14 and 17 of the Covenant)

(1) The lack of an effective entity independent of prison administration authorities to examine prisoners' complaints and the fact that prisoners who file complaints can be penalized in some way for doing so are violations of article 2 paragraphs 1 and 2, and article 7 of the Covenant.


(2) The monitoring and censoring by prison authorities of interviews between prisoners who have filed complaints concerning their treatment in prison and their lawyers or of communications between them with respect to such complaints are violations of article 14 paragraph 1 of the Covenant. Refusal by prison authorities to permit interviews and correspondence between convicted prisoners and friends, NGOs, support groups organized by foreigners, etc. are violations of articles 10 and 17 of the Covenant. Rules providing for such actions by authorities should be abolished.


B. The Government's Response and its Fourth Periodic Report.


The Japanese Government's report makes no statements whatsoever on these points. C. Problems in Connection with Filing a Complaint from a Japanese Penal Facility under the Present System


The system for filing complaints in Japan's penal facilities involves the following problems:


(1) Interview with the Warden


Article 9 of the Prison Law Enforcement Rules provides that the warden must interview prisoners who file requests for such an interview. It is well-known, however, that this provision is never enforced. If a prisoner makes a request for an interview with the warden, he or she will be given an interview with a supervisor in charge of the day-to-day treatment of prisoners who acts as the warden's representative. Wardens do not see prisoners. Any prisoner who attempted to address the warden while he is making rounds of the facility would be punished.


(2) Petitions to the Minister of Justice


Article 7 of the Prison Law establishes a system of petitions (jogan) to the Minister of Justice and the prison inspector (junetsukan). Appeals to the Minister of Justice can be made at any time, but these often receive a consideration that amounts to no more than reading and issuing of documents. Petitions to the prison inspector are given directly and orally to the inspector. This official conducts his inspection tour, however, normally only once every two years.


Adoption of a petition is based on an investigation of the facts, but the investigators do not even consider themselves legally bound to give an answer, and the rate of granting remedies is extremely low. This system is not really independent of the prison administration authorities, and cannot be considered an effective method of redress.


(3) Redress under the State Tort Liability and Administrative Litigation Laws


One might also consider whether civil suits or administrative litigation constitute effective methods of remedy. The majority of administrative lawsuits are rejected on the grounds that the requirements for litigation were not met. Recently, damage suits against the state and other types of civil action over unlawful treatment in detention facilities have been increasing, and the number of cases in which the plaintiff prevails is increasing gradually. These changes can be interpreted as indications that growing international criticism of Japan's detention facilities has an effect on the courts, and also that the number of cases in which prisoners receive legal assistance is increasing.


But it is a fact of life in Japan that legal procedures consume tremendous amounts of time, labor and money. For example, the case from the Tokushima Prison cited in Section 6, C (b) below, in which the plaintiff prevailed, took five years for the initial, district court trial, another year and a half in the high court, and is currently pending before the Supreme Court. Moreover, few prisoners are able to receive the assistance of an attorney. The task of establishing systems and resources for such legal services has only just begun. Of even greater concern is the fact that prisoners who initiate lawsuits due to dissatisfaction with their treatment in Japan's prisons commonly face retaliation, which may take the form of exclusion from groups in the prison workplace, "solitary confinement as treatment" (genseidokkyo), or destruction of their chances for parole. Even the initiation of a lawsuit is extremely difficult thing to manage. Therefore, this alternative cannot be considered an effective method of redress.


(4) Criminal Complaints


Every year, a large number of criminal complaints are filed by prisoners who have been subjected to violence or mistreatment by prison officers. As was noted in Chapter 1, Section 6, however, it is extremely rare for a prison officer to be actually indicted. Therefore, this method also cannot be considered an effective method of redress.


(5) Complaints to the Civil Liberties Bureau of the Ministry of Justice


A system exists whereby complaints may be made to the Civil Liberties Bureau of the Ministry of Justice, but because this bureau is an organization within the same ministry that has jurisdiction over the penal facilities, it lacks independence. In fact, very few complaints are made through this mechanism, and there are almost no examples of remedies resulting from it.


(6) Complaints to Non-Governmental Organizations for Redress


As described above, there are limits to what can be expected from complaints to the government, courts and national bodies. Nor can it be considered that they provide effective remedies. Consequently, complaints for redress of grievances are lodged with NGOs and international bodies.


(a) Applications to Bar Associations for Redress


Cases of appeals to bar associations over unlawful or unjust treatment in detention facilities have been increasing, and bar associations have issued many recommendations to facility officials. Lately, these recommendations have been publicly announced, with press conferences or other such activities. Such events have major, social impact.


Prison authorities, however, often do not recognize recommendations from bar associations. In August, 1997, the Hiroshima Prison approved an interview between representatives of the Hiroshima Bar Association and a prisoner who had filed an appeal on the condition that a prison official monitor the meeting, but the prison authorities did not permit a meeting with other prisoners who were said to have witnessed the acts of violence. In July, 1998, the Hiroshima Bar Association filed a suit against the state on the grounds that its investigation had been obstructed. This is one of many examples that indicate the limits of the effectiveness of this method of remedy.


(b) Access to Friends, NGOs and Attorneys


Unsentenced prisoners can meet and exchange letters with friends. Convicted prisoners, however, cannot receive communications from friends. In principle foreign, sentenced prisoners are not allowed meetings or communications with persons other than their families, attorneys or consuls. Meetings between inmates and their attorneys are attended by guards, and their communications with their attorneys are censored. The presence of guards during consultations with attorneys and the censoring of communications with attorneys should be eliminated, and sentenced prisoners should also be permitted visits and communications with NGOs, foreign support groups, etc.


Japan's Foreign Ministry generally permits visits to penal facilities by international human rights organizations and bar associations, but it does not permit interviews with certain, specified prisoners or with guards alleged to have committed unlawful acts. The 1997 Country Reports on Human Rights Practices, issued by the U.S. Department of State, notes that Japan's prison authorities restrict access to their facilities by human rights NGOs.


(c) Reports to the United Nations Commission on Human Rights et al. In recent years, a number of communications from persons incarcerated for criminal offenses in Japan have been taken up for consideration by the Commission on Human Rights in accordance with procedures established under ECOSOC Resolution 1503.


A Japanese court has ruled it unlawful for prison authorities to refuse to permit the sending of a letter from an inmate under sentence of death concerning restrictions on outdoor exercise to the Commission on Human Rights.46 In 1997, the UN Sub-commission on the Prevention of Discrimination and Protection of Minorities considered, but ultimately did not recommend that the Commission on Human Rights review Japanese prison conditions under the confidential procedure in connection with Mr. Far's case cited Section 8, C (4)(c) below. However, it did convey its concern about this problem to the Japanese government.47 In a similar vein, the encouragement of the Japanese government by the Special Rapporteur investigating torture and inhumane treatment of persons under detention resulted in an amelioration of the treatment of an inmate. (See Section 1, C (5) above.) Availability of the more effective procedures provided under the First Optional Protocol of the Covenant and the Convention against Torture must await Japan's ratifications of these instruments.


D. Position of the JFBA


Article 2 of the Covenant require States Parties to take effective action to ensure the rights recognized in the Covenant to all individuals, without distinction of any kind. General comment 7 also calls for effective means to implement the rights guaranteed under article 7 of the Covenant. The countries of Europe have active monitoring bodies independent of prison administration authorities, such as prison review boards, prison ombudsmen and prison visitation committees. In addition, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment functions as an international monitoring agency. The JFBA has proposed the establishment of a prison review board consisting of persons independent from and having no relationship to prison administration authorities with the authority to investigate and issue reports. As mentioned above, the posting of prison officers to monitor interviews between prisoners and their attorneys and the censoring of communications between prisoners and attorneys is a violation of article 14 paragraph 1 of the Covenant, and the refusal to permit meetings and written communications between prisoners and NGOs violates articles 10 and 17. These rules should be immediately abolished. Meting out adverse treatment to prisoners who register complaints violates article 2 paragraphs 1 and 2 and article 7. It is urgently necessary to establish assurances that such treatment will not recur.


Section 3: Living Conditions of Prisoners (Article 10 of the Covenant, SMR 10, 11 and 21, Principle 24 of the UN Body of Principles)

The practices of granting inmates only approximately ninety minutes of exercise per week in Japan's prison facilities and of requiring male prisoners to have shaved heads violates article 10 of the Covenant, SMR 10, 11, and 21 and principle 24 of the UN body of principles. Treatment of prisoners must be improved to bring it in compliance with the relevant international and U.N. rules.


B. The Government's Response and its Fourth Periodic Report (paragraphs 104-110) (1) Statements in the Fourth Periodic Report


The government has not taken any measures for improvement. It maintains in its statements in the Fourth Periodic Report that it now provides appropriate living conditions for prisoners in the following categories:


1. Clothing and bedding (paragraph 104)


2. Meals (paragraphs 105-106)


3. Cells (paragraph 107)


4. Health and sanitation


a. baths (paragraph 108)


b. exercise (paragraph 109)


c. medical examinations (paragraph 110)


d. medical treatment (paragraph 110)


(2) Outdoor Exercise


Prison facilities permit at a maximum outdoor exercise period of thirty minutes two or three times a week.


(3) Haircuts (Article 10 of the Covenant, SMR 16)


The Fourth Periodic Report makes no mention of prisoners' haircuts. On the basis of article 36 of the Prison Law, which states merely that the shaving of inmates' heads and beards can be required, the shaving of heads for sentenced males has been made mandatory. The reasons given for this practice are the "maintenance of prison order" and "sanitary requirements."48


C. Position of the JFBA (1) Outdoor Exercise


SMR 21 provides for one hour of suitable outdoor exercise, weather permitting. Outdoor exercise periods of only thirty minutes duration, two or three times a week, violate this provision.


(2) Haircuts


SMR 16 provides that facilities shall be provided for the proper care of prisoners' hair and beards, and that men shall be enabled to shave regularly in order that prisoners may maintain a good appearance compatible with their self-respect. The rules in Japanese detention facilities meet, in a technical sense, the requirement that these facilities be provided, but SMR 16 is based on the assumption that prisoners have a right to maintain an appearance compatible with their sense of self-respect. The requirement of mandatory head-shaving for males should therefore be considered unacceptable in the absence of any specific medical or other sufficient reason that the exercise of this right would be in some way deleterious to administration of the facility.


Permitting normal haircuts cannot be taken as a danger to the "maintenance of order," and clearly bathing and the washing of hair are adequate ways of maintaining sanitary conditions. The supposed dangers cited by the government are nothing but abstractions. The mandatory shaving of heads on the basis of article 36 of the Prison Law is a violation of SMR 16.


Section 4: Inadequacy of Medical Treatment (Article 10 of the Covenant, Principle 24 of the UN Body of Principles)

(1) Medical treatment


Failure to provide speedy and appropriate medical treatment in prison facilities is a violation of article 10 of the Covenant and principle 24 of the UN body of principles. Therefore, measures should be taken to guarantee that speedy and appropriate medical treatment will always be provided as needed. (2) Health insurance


The discontinuation of health insurance payments to all persons in state custody (suspects, unsentenced detainees and prison inmates) conflicts with the spirit of article 10 of the Covenant and principle 24 of the UN body of principles. Therefore, section 62 of the Health Insurance Law and section 59 of the National Health Insurance Law, which provide for the discontinuation of payments to persons in state custody, should be amended.


B. The Government's Response and its Fourth Periodic Report (paragraph 110)


The government argues that the following measures, which are in place, constitute an adequate medical care system for prisoners: (1) Doctors and medical specialists are assigned to work at prison facilities. (2) If a medical treatment cannot be provided at an ordinary prison facility, an inmate requiring such treatment is transferred to a prison hospital, or other such facility. (3) If adequate treatment cannot be given within the prison system, doctors from outside the system may be engaged, or inmates may be sent to outside hospitals. C. Actual Nature of the Medical Treatment Provided (1) Inadequate Medical Treatment


In fact, there are many inadequacies. To begin with, data on the number of doctors and actual facilities available in each prison facility are inadequate and are therefore a problem in itself. The number of staff members holding medical licenses is small, so that even when medical examinations are given, the attending physician may not be the appropriate specialist. Statements by former prisoners indicate that there are inadequacies in the number of medical specialists, and that prisoners who request examinations have difficulty in obtaining them.


In cases of grave illness, prisoners experience great difficulties in gaining permission to receive treatment outside the prison facility, often not obtaining permission until the illness has progressed to a very advanced condition.


There have been recent examples of prisoners dying because they did not receive adequate medical treatment49.50


(2) Denial of Medical Insurance Benefits


Article 42 of the Prison Law permits inmates to receive medical treatment at their own expense. However, even in cases where such treatment at the individual's expense is approved, inmates cannot use their insurance because section 62 of the Health Insurance Law and section 59 of the National Health Insurance Law provide that prisoners shall not receive insurance payments. Unsentenced prisoners are also subject to this rule.


D. Position of the JFBA


Rule 25 paragraph 1 of the SMR provides that medical officers should daily see all sick prisoners and all who complain of illness. Principle 24 of the UN Body of Principles provides that, "A proper medical examination shall be offered to a detained or imprisoned person as promptly as possible after his admission to the place of detention or imprisonment, and thereafter medical care and treatment shall be provided whenever necessary." The Code of Conduct for Law Enforcement Officials provides in section 6 that law enforcement officials "...shall take immediate action to secure medical attention whenever required." There are cases in which medical treatment at Japanese detention facilities does not satisfy these provisions. Most notably, in the two recent cases noted here in which prisoners died due to lack of medical attention, we see apparently clear violations.


We interpret the phrase in the UN Body of Principles 24, "a proper medical examination shall be offered" to mean that medical treatment cannot be unreasonably denied. Therefore, the provisions of Health Insurance Law 62 and National Health Insurance Law 59 which cut off insurance payments to inmates are not in compliance these provisions of international law.


Section 5: Special Problems in the Treatment of Unsentenced Detainees (Articles 10, 14 and 17 of the Covenant) - Detention in Facilities Other Than Substitute Prisons (Daiyo Kangoku)

(1) Present treatment of unsentenced detainees violates articles 10 paragraph 2(a) and 14 paragraph 2 of the Covenant. Improvements should be instituted so that the treatment of unsentenced persons will be compatible with their status, namely that of persons presumed to be innocent. (2) Unsentenced detainees are subject to restrictions on visits and correspondence in violation of article 10 paragraph 1 and article 17 of the Covenant. These restrictions should therefore be eased.


B. The Government's Response and its Fourth Periodic Report


The government has implemented no improvements since the Third Periodic Report was considered, and it makes no mention of these problems in its Fourth Periodic Report. C. Treatment of Unsentenced Detainees in Japan's Prison Facilities (1) Complete Isolation in Single Cells


Some unsentenced detainees are placed in single cells and others in communal cells. There are no restrictions on conversations in communal cells. Persons confined in single cells, however, spend almost the entire day inside the cell, deprived of all opportunity for human contact. A considerable portion of unsentenced detainees are confined in such single cells. Sentenced prisoners are guaranteed exercise on the prison's exercise grounds, but unsentenced detainees are only allowed to exercise in very small, triangular spaces, one for each prisoner. Called "bird cages" by inmates, these enclosures are surrounded by high concrete walls and, on one side, wire netting to allow the guards to observe the prisoners.


(2) Communication with the Outside by Unsentenced Detainees (Cf. Chapter 3 Sections 7 and 8 concerning Visits with Lawyers)


(a) Visits


Japan's Code of Criminal Procedure places limitations on contacts with the outside available to unsentenced detainees. In addition, directors of detention centers do not permit journalists to visit for purposes of news coverage, and the Code of Criminal Procedure provides no method of redress against this restriction.


Visits are limited to one per day, between 8:30 a.m. and 3:30 or 4:00 p.m. No visits are allowed outside the working hours of prison officers (i.e. after 5:00 p.m.) or on Saturdays, Sundays and legal holidays. Visits longer than thirty minutes are not permitted, and they may even be restricted to ten minutes due to insufficient facilities at places that have many visitors, such as the Tokyo Detention Center.


Visits are conducted in tiny cubicles measuring 1.8 by 3 meters. Prisoner and visitor are separated by a plastic panel. Prison officers are present throughout the entire visit, sitting next to the prisoner and taking notes on the conversation. Visitors are not permitted to give prisoners letters or any other objects. This prohibition applies to attorneys as well.


(b) Censorship of Letters


All letters sent or received by prisoners, including correspondence with attorneys, are censored and sometimes even the very sending or receiving of letters is not permitted. Prisoners are often ordered to make deletions or changes in their letters and censors may without notice to the sender black out portions of letters received. The reasons given for this censorship are "maintenance of order" and "administrative need." Prisoners are often limited to writing no more than two letters per day.


(c) Telephone Calls


Absolutely no communication with the outside world by telephone, including telephone calls with one's attorneys, is permitted.


(3) The Severity of Rules Governing Daily Life


Detainees' lives are subjected to a myriad of minute requirements. As previously noted, punishments are meted out for even minor infractions. Guards do not wear nametags and their names are kept secret from inmates. Prisoners are in effect forced to call all guards "sensei," a general term of respect which means "teacher" or "master," normally reserved for persons with superior knowledge.


These problems, which we also discuss under our general remarks on "rules and order," by no means concern unsentenced detainees only. However, let us note here that the imposition of these rules on persons who have not received a sentence are clearly incompatible with the principle of the presumption of innocence and constitute conspicuous human rights violations.


D. Position of the JFBA (1) Treatment of Unsentenced Detainees


The treatment of unsentenced detainees in Japan as described above is inappropriate to persons who are presumed to be innocent. While there may be cases in which there is a need to prevent contact with criminal accomplices, beyond that consideration, the living conditions of unsentenced detainees should be as close as possible to that of normal life. The treatment of unsentenced detainees in Japan as described herein amounts to restrictions on rights that go beyond the purpose of detention, and is therefore in violation of not only article 10 paragraph 2(a) and article 14 paragraph 2 of the Covenant, but also SMR 84-2 and 84-3.


In order to improve this situation, the JFBA proposes that unsentenced detainees be placed in individual cells at night and during the day be permitted free access to common spaces, according to the standards prevalent in detention centers in Europe and North America, and that they be given access to spacious exercise grounds for their common use.


(2) Communication with the Outside World


The regime of restricting communications by unsentenced detainees with the outside world, which is now in place in Japan, violates article 10 paragraph 1 and article 17 of the Covenant. The JFBA's position is that such persons should be guaranteed a minimum of thirty minutes visiting time twice a day; that partitions in visiting rooms be removed; that the general rule of prison officers sitting in on visits be changed that the officers are able to monitor visits visually but not actually hear the conversations; that visits on holidays and telephone calls to and from the outside be permitted; and that in principle the opening and censorship of letters be abolished.


Section 6: Special Problems of Sentenced Prisoners (Articles 10 and 14 of the Covenant, Principle 18 of the UN Body of Principles)

(1) Present correctional treatment of prisoners is not in compliance with article 10 paragraph 3 of the Covenant. Prisoners' free will should be accorded respect and treatment effective in returning prisoners to society must be implemented. (2) Monitoring conversations between prisoners and their attorneys during visits and censorship of their correspondence violates article 14 paragraphs 1 and 3 (b) of the Covenant and principle 18 of the UN body of principles. Monitoring of visits between prisoners and their attorneys and censorship of their correspondence should be abolished. (3) Prisoners are severely restricted with respect to visits and correspondence with persons other than their attorneys in violation of article 10 paragraphs 1 and 3 and article 17 of the Covenant. Visits and correspondence with friends should be permitted.


B. The Government's Response and its Fourth Periodic Report (paragraphs 93-103) (1) The government states in its discussion of article 10 of the Covenant under the heading of "Treatment of Convicts" that, "[t]he aims of the Japanese prison administration system are the correction and social rehabilitation of convicts." (paragraph 93) It maintains that these objectives are actively implemented. According to this report, various kinds of educational activities are carried out. These include vocational instruction, "daily life guidance" and academic instruction. The report emphasizes that since the last government report, the period of instruction given prisoners before their release has been extended and made more substantive. (paragraph 103)


(2) No mention is made of the regime applied to visits and the correspondence of inmates. C. Problems Concerning the Situation of Convicted Persons (1) Problems Concerning the Correctional Treatment of Inmates for the Purpose of Social Rehabilitation


(a) Prison Work


According to the government report, prisoners are given vocational training. The state of that vocational training is, however, inadequate according to a report published by the Management and Coordination Agency Administrative Inspection Bureau in January, 1993, entitled "Report on a Survey of Correctional Facilities," (hereinafter "MCA Report"). It is true that a certain degree of vocational training is given to some class A inmates (those whose criminal tendencies are not developed), but this applies only to some Class A convicts and some facilities. In addition, even for this limited pool of persons in this limited number of facilities, there are fixed caps on the numbers of persons in various vocational schemes. It is important also to provide assistance for the rehabilitation of Class B convicts (i.e. repeat offenders or those whose criminal tendencies are developed) and convicts of advanced age, whose numbers are expected to swell in the future. The expansion and improvement of vocational training for these persons are an urgent necessity.


(b) "Living Guidance"


The government states in paragraphs 97-99 of its Fourth Periodic Report that instruction is given to prisoners with the objectives of cultivating a spirit of respect for laws and acquiring the knowledge and attitude to lead a sound social life; leading them away from involvement in gangster groups; giving instruction on the evils of drugs, and so forth. But these efforts are inadequate. According to the MCA Report, some facilities are not providing instruction aimed at encouraging criminal organization members to break off their affiliations because such instruction has no effect. Indeed, "life guidance" instruction is perfunctory at best. For example, instruction about the evils of drugs amounts to no more than showing some videos and giving some lectures. In view of the high rate of recidivism for persons convicted of drug offenses, the drug-related portion of the instruction provided in prisons cannot be described as effective. Crucially, these programs of life guidance instruction consist of ineffective means, such as lectures read out of manuals and lacks effective components, such as individual counseling.51


The government in paragraphs 97-99 of its report refers of organizing inmates into separate groups for counseling. While these efforts are not entirely lacking, the MCA Report states that while some improvements are evident, overall these activities are very inadequate.


Furthermore, as the MCA Report points out, surveys of prisoners are needed in order to establish effective training programs, but there have been no such systematic surveys or research conducted by the Ministry of Justice. In sum, the system of corrections in Japan is very much oriented toward the maintenance of the status quo and can hardly be described as being progressive.52


(c) Education


The government states in its report that both educational programs for those who have not completed compulsory education and also pre-release guidance to smooth the social rehabilitation of convicts are being upgraded. But, as is noted in the MCA Report beginning on page 83, at about 44% of correctional facilities, the duration of the pre-release guidance program is very short: for prisoners scheduled to be paroled only one week of instruction is provided; for prisoners who have completed their sentences only three days or less of instruction are offered. Moreover, the educational program for parolees consists of no more than lectures and guided visits outside the prison.53 Pre-release education is extremely important for an inmate's successful reintegration into society. We follow carefully the outcome of the government's proclaimed efforts to extend these instructional periods. Also, the government's efforts to help prisoners due for release to secure jobs cannot be termed adequate as the MCA Report shows.54 The arrangement of suitable employment of released prisoners is very important for their rehabilitation and their avoidance of recidivism. For this purpose, it is important for the government to open a dialogue with potential employers in order to gain their understanding. Similarly, it is important for prisons and correctional authorities to cultivate relationships with civic groups.


(d) The Progressive Treatment System for Prisoners


The progressive treatment system constitutes one of the major problem areas in the treatment of prisoners in Japan.55 The underlying idea of this system and the concept that prisoners should be treated in accordance with their own, individual characteristics are fundamentally incompatible.


Under the progressive treatment system the inmate's privileges (i.e. the number of visits and letters permitted) increases as the inmate is reclassified with the passage of time to higher classifications. For example, Class 4 prisoners are allowed one letter and one visit a month; Class 3 two each per month; Class 2 one each per week; and Class 1 one each per day. The number of visits and letters permitted Class 4 prisoners are inadequate from the standpoint of basic human rights.


According to the present progressive treatment system, the passage of time is required to advance to a higher class. But the way prisoners are treated should be based upon their needs, and the way they are handled should not depend on how long they have been in prison. Although advancement in classification based on the amount of time served might be considered by prison authorities to be equitable and thus proper, but actually this way of thinking is incompatible with the basic idea of promoting the social rehabilitation of prisoners. Only about 1% of all prisoners belong to Class 1 and those who attain this classification do not remain incarcerated much longer. Consideration should be given to phasing out this system.


(e) Promotion of Open Treatment


Open treatment of prisoners occurs in only a limited number of facilities and is applied mainly to prisoners convicted of traffic offenses (i.e. those who might be described as completely unlikely to flee). The total number of prisoners receiving this treatment at any time hovers around 900. Prisoners commuting to outside employment at private enterprises occurs only under a very limited set of circumstances.


Basically prisoners should be placed in an environment that approximates as much as possible the society to which they will ultimately return. Thus, the expansion of the open treatment system should be strongly encouraged.


The Ministry of Justice maintains that under the present Prison Law, a system whereby prisoners can stay away from prison overnight is not possible. The JFBA considers revision of the Prison Law to be an urgent necessity. Although so far the JFBA has only proposed a bill to amend the Prison Law, which counters a government proposed bill for the same purpose by not including the provisions restricting human rights contained in the government's proposed revision, nevertheless the JFBA also considers that a revision of the prison Law should include as one of its components the introduction of a system for overnight stays away from prison.


(2) Problems with the Present Situation of Prisoners' Contacts with the Outside World (a) No Right to Confidential Communication with Attorneys


Limitations on the length of visits and the monitoring of conversations by prison officers impose an extremely unfair burden on the ability of a prisoner to confer with his or her legal representative over a lawsuit for prison abuse. Let us illustrate this inequity with a recent case arising in Tokushima Prison.


When an inmate in Tokushima Prison conferred with his attorney over his lawsuit against the state for an assault received at the hands of prison officers, the prison warden limited the visits to thirty minutes each on fourteen occasions between October, 1990 and February, 1991 and permitted meetings to take place only with a prison officer present and listening. The prisoner and his attorney sued the state over these limitations, claiming illegal interference with the right to legal counsel. In March, 1996 the Tokushima District Court found the limit on the length of attorney-client interviews to be a violation of article 14 paragraph 1 of the Covenant and ordered the state to pay 1.15 million yen in damages, but ruled the posting of a guard to monitor the interviews to be within the limits of the discretionary power of prison authorities.56 Both the state and the plaintiff appealed. In November, 1997 the Takamatsu High Court reduced the amount of compensation awarded, but found not only limitation of the length of attorney-client interviews but also an aspect of the monitoring to be in violation of article 14 paragraph 1 of the Covenant.57


This was a landmark decision in the recognition of the binding power of the Covenant in Japanese domestic law. Moreover, the High Court cited other international law, i.e. SMR and the UN Body of Principles, and recognized a decision of the European Court of Human rights as a valid legal precedent in Japan. However, the state has not accepted this decision, but rather has appealed the case to the Supreme Court where it is now pending. In the meantime no changes whatever has been made in the procedures in Japan's prisons.


There have also been other, similar lawsuits concerning consultations with attorneys by inmates arising out of Niigata and Asahikawa prisons58.59


(b) Restrictions on Visits and Correspondence with Friends (i) As a general rule visits are limited to family members. Non-family members must receive special permission for a visit from the prison warden. The prison warden has total discretion as to whom he will grant such permission for visits. Basically, friends or members of NGOs are not allowed to meet prisoners.


The number of meetings permitted a prisoner in a given time depends upon the classification which the prisoner has attained, which is based on the number of years spent in the prison. For example, as was mentioned above, Class 4 prisoners are permitted only one visit and one letter per month. Class is determined not only by number of years spent in prison, but also on assessments of the prisoner's attitude, record, etc. Accordingly, prisoners with poor records do not advance to higher classes. Class 1 prisoners, on the other hand, are limited to only those prisoners who have good records and are close to completing their sentences.


The same restrictions that apply to convicts apply also to unsentenced detainees. This includes a 30-minute limitation on the length to visits, (which can be considerably shortened due to the shortage of facilities to accommodate visitors) and no visiting allowed on Saturdays, Sundays, legal holidays, or outside prison officer working hours (i.e. after 5 p.m.). Moreover, unsentenced detainees must use the same visiting cubicles as convicts, and their visits are similarly monitored by prison officers.


(ii) Letters


As with visits, prisoners are only allowed to send letters to and receive letters from family members or persons to whom special permission has been granted. Once again, the number of letters that can be sent is determined by the progressive classification system. Class 4 prisoners are allowed only one letter a month.


All letters are censored and permission for letters to be sent or received may be denied. Very often deletions or changes are ordered. Additional restrictions may also be imposed. One prison placed a limit of "about seven pages" per letter and went on to limit the number of lines per page and the number of characters per line. In addition to the rationale of "administrative necessity," the universally cited justification for regimentation in prison life, prisons impose even stricter regulations on convicts than they do on unsentenced detainees for officially cited reasons of "education" and "guidance."


Convicted prisoners may include some who maintain that they are innocent of the crimes for which they have been convicted and are seeking retrials to overturn erroneous decisions. Prisons do not suspend the monitoring of attorneys' visits by prison officers until a retrial has been granted. Until that point, prison officers sit in on meetings between attorneys and their clients and take notes, thereby denying the inmate the right to confidential communication. In order to obtain a retrial to bring to light a miscarriage of justice, one must fulfill extensive procedural requirements, which may literally take decades. Restrictions on the right of legal consultation and the violation of privacy constitute major, additional barriers to retrials for persons wrongly convicted.


D. Position of the JFBA (1) Correctional Treatment


The treatment of convicted persons described above is not in adequate compliance with article 10 paragraph 3 of the Covenant. Most important to achieve the goal of an ex-convict re-emerging as a full member of society is treatment in prison organized to maximize the prisoner's own desire to achieve this goal through his or her own efforts. Emphasis needs to be put on providing assistance to Class B convicts, who have committed repeat offenses or whose criminal tendency is developed, and to convicts of advanced age, whose number is expected to increase. Better and more effective programs should be implemented for these especially difficult rehabilitation cases and should include components, such as vocational training, organized group debates, counseling or other types of individual engagement, assistance in finding jobs for released convicts, etc.


(2) Establishment of Privacy of Communications between Inmates and Their Attorneys


The monitoring of meetings and the censoring of correspondence between convicts and their representatives in claims against the state or requests for retrials constitute violations of article 14 paragraphs 1 and 3(b) and principle 18(2), (3) and (4) of the UN Body of Principles. Both of these procedures should be abolished.


(3) Establishment of External Communications between Inmates and Friends or NGOs


The denial in Japan of convicts' rights to communicate with the outside world is inhumane; violates article 10 paragraphs 1 and 3 of the Covenant; and poses an obstacle to their social rehabilitation. Arbitrary interference with the prisoner's private life and private correspondence violates article 17 of the Covenant as well.


The JFBA maintains that restrictions on visits should be kept to the minimum necessary in those specific cases where there is such a necessity, and that visits with friends as well as relatives be permitted. Visits of four times a month, each visit lasting thirty minutes, should be the guaranteed minimum. Separation barriers in visiting rooms should be eliminated. Prison officers should be positioned in such a way that they can observe a meeting but cannot hear what is being said. Visiting on weekends and holidays should be permitted.


With respect to correspondence, restrictions on the kind of parties the prisoners can correspond with, the number of letters that can be sent or received and the number of pages of each letter should be eliminated, and censorship by opening letters should cease as a rule.


Section 7: Specific Problems in the Treatment Death Row Inmates Whose Sentences Have Been Confirmed (Articles 6, 7, 10 and 17 of the Covenant)

The refusal to permit visits by and communication with persons other than family and attorneys of condemned prisoners violates articles 7, 10 paragraph 1 and 17 of the Covenant. (The term "condemned" as used here means the sentence of death has become final by the completion of the appeals process from the original trial.) Visits between condemned prisoners and friends or NGO members should be permitted. The isolation of condemned prisoners violates articles 7 and 10 paragraph 1 of the Covenant. Condemned prisoners should be allowed exercise, leisure activities, etc. in common with other condemned prisoners.


B. Subjects of Concern and Recommendations of the Human Rights Committee


The Human rights Committee stated among the "Principal Subjects of Concern" with respect to the Third Periodic Report of the government of Japan that "...the Committee finds that the undue restrictions on visits and correspondence and the failure of notification of executions to the family are incompatible with the Covenant." (Comment, paragraph 12) The Committee recommended, "...that preventive measures of control against any kind of ill-treatment of detainees should be further improved." (Comment, paragraph 18)


C. The Government's Response and its Fourth Periodic Report (paragraph 64) (1) Communications with the Outside World The government stated in its report that "[i]t is also necessary for prisons to ensure the mental stability of the prisoners, whose capital punishment sentence became final." Following this reasoning, the government maintains that, in principle, visits between condemned prisoners and persons other the family or lawyers are not permitted.


(2) Response of the Government since the Committee's Recommendation


The Japanese government has made no improvements concerning the situation of Japan's condemned prisoners. On the contrary, the previous regime of restrictions has solidified in place. The Fourth Periodic Report of the Japanese government provides no response at all to the Committee's recommendation, but instead merely describes the present way condemned prisoners are handled and argues that this regime is justified.


D. Problems With Respect to Condemned Prisoners (1) Communications with the Outside World (a) Reasons Put Forward for Special Restrictions


Condemned prisoners have restrictions placed on their communications with the outside, first because of "the needs of management of the facility," which is the same reason given for such controls on unsentenced detainees. However, in addition, condemned prisoners are subjected to additional restrictions, which are even more problematical, for the purpose of "the mental stability of the prisoner." This concept of "mental stability" is understood to mean that the condemned prisoner should accept death. In a case in which limitations on visiting privileges of condemned is under dispute, a court brief by authorities in support of the restrictions stated that "[t]he public welfare requires that condemned prisoners arrive at a state of mind in which they are able to quietly face their death by themselves, through a deep awareness of the crimes they committed."60 This case involves a condemned prisoner convicted of murder and a couple who, opposed to the death penalty and seeking improvements in the treatment of prisoners, adopted him. The trial court upheld the imposition of restrictions on visits.


Thus, the state's objective in its treatment of condemned prisoners is their acceptance of death. Such an objective means that petitions for retrial, meetings with friends and the mutual encouragement that can result from such meetings, or clinging to hope is regarded as undermining mental stability. The government pursuing a blatantly arbitrary policy in its treatment of condemned prisoners, which cuts off the routes of communication with the outside world and places such prisoners in absolute isolation.


(b) Visits


According to the Prison Law, no legal distinction is made between unsentenced detainees and condemned prisoners with regard to who is permitted to visit them. In fact condemned prisoners, however, are forbidden visits with friends, persons from NGOs or anyone outside of family and lawyers. The proffered reason for these restrictions is for the "mental stability" of the prisoner. Out of the number of condemned prisoners now seeking retrials of whom the JFBA is aware, only one prisoner has been allowed visits by persons other than family or lawyers. Other rules are sometimes applied. For example, a maximum of three family members are permitted to participate in one visit per day for no more than 30 minutes per visit. Moreover, some prisons have refused interviews with adoptive parents. This last policy has been upheld in the courts.61 It is a violation of human rights to prohibit visits by NGOs or friends, but in Japan, even visits by persons who support condemned prisoners and have legally adopted them because these persons are opposed to the death penalty are not permitted as visitors.


Visits permitted condemned prisoners are conducted in the same locations as those for unsentenced detainees and sentenced prisoners. Prison officers attend and take notes on the meetings, including those with attorneys representing the prisoners in applications for retrial or for lawsuits against the state.


(c) Correspondence


Correspondence is also limited to family members. Japanese have a custom of sending New Years greeting cards (nengajo) to their acquaintances, but even these postcards are not delivered to the condemned prisoner. The facility keeps all correspondence sent to the prisoner, informing neither the prisoner of its arrival or the sender that it has been taken into custody. Supporters of condemned prisoners who are seeking retrials frequently send letters of encouragement to the prisoners, but these letters do not reach their intended party, who is not even informed of their existence. These letters are all classified as "harmful to the mental stability of the prisoner." In some cases cash is send to the prisoner. This money is either returned to the sender or the facility simply takes custody of it. Financial support is also deemed "harmful to mental stability." Similarly, letters sent by condemned persons to anyone other than family members are absolutely forbidden. Despite the assertions of the prison authorities, such restrictions on communication with the outside world have in fact the opposite effect of undermining the prisoner's mental stability.


(2) The Policy of Solitary Confinement for Condemned Prisoners


Condemned Prisoners are kept apart from unsentenced detainees and are, without exception, kept in solitary confinement. Prior to February, 1997, a limited group of condemned prisoners had been permitted group activities, such as taking meals together on birthdays and hearing sermons. After that date, however, even these group activities, which the prisons had considered to be not problematical, were abolished resulting in the complete isolation of every condemned prisoner at all times. The only visitors allowed are family members (one should note that the definition of "family members" is also severely limited) and, in the case of those who are petitioning for retrials, their attorneys. The only persons whose faces condemned prisoners see regularly are guards with whom conversation is rigorously prohibited.


E. Position of the JFBA (1) Communication with the Outside World for Japan's Condemned Prisoners


The Committee in paragraph 7 of general comment 6 on article 6, adopted at its sixteenth session on July 27, 1982, stated that, "[t]he procedural guarantees therein prescribed must be observed, including the right to ... the minimum guarantees for the defense. ... These rights are applicable in addition to the particular right to seek pardon or commutation of the [death] sentence." The restrictions placed on the communications of condemned prisoners in Japan with the outside world make it practically impossible for them to receive external assistance for obtaining retrials, pardons, etc. This type of restriction amounts to obliterating them from society in advance of their execution. It is inhuman to place a blanket prohibition on correspondence between condemned prisoners and anyone outside of their family or attorneys. Moreover, this prohibition amounts to an arbitrary interference with those communications and makes it difficult for prisoners to avail themselves of such remedies as retrials, stays of execution and pardons. As such, this interference violates articles 6 paragraph 4, 7, 10 paragraph 1 and 17 of the Covenant. Visits and correspondence between condemned prisoners and friends, NGO members, etc. should be permitted.


(2) The Isolation of Condemned Prisoners


The above-described isolation of Japan's condemned prisoners violates article 7 and 10 paragraph 1 of the Covenant. Therefore, the Japanese Government should bring its treatment of condemned prisoners into compliance with the Covenant by immediately abolishing the practice of isolating condemned prisoners thereby enabling them to engage in exercise and leisure activities together.


Section 8: Special Problems in the Treatment of Foreign Prisoners (Articles 7, 9, 10, 14, 17, 20 and 26 of the Covenant)

(1) Failure to take effective measures to prevent discriminatory speech and actions by guards violates article 20 paragraph 2 of the Covenant and articles 2, 5, and 7 of the International Convention on the Elimination of All Forms of Racial Discrimination. In order to prevent the recurrence of these abuses, compulsory human rights education conducted by specialists completely independent of the prison authorities must be conducted. (2) Depriving foreigners of the opportunity for parole due to punishments for trivial offences or for filing complaints constitutes arbitrary confinement in violation of article 9 paragraph 1 and article 14 paragraph 1 of the Covenant. Punishment and parole procedures should be brought into compliance with the Covenant. (3) Foreign prisoners should be guaranteed access to interpretation sufficient to enable them to live within the prison facilities. (4) The refusal to permit foreigners to meet or correspond with friends and human rights NGOs, and the refusal to permit meetings and the delay of letters based on the necessity of interpretation when guards monitor visits or censor correspondence are violations of articles 7, 10, 17 and 26 of the Covenant. These restrictions must be abolished.


B. The Government's Response and its Fourth Periodic Report (paragraph 131)


The report states that a "CD-ROM-based portable interpreter" has been introduced in "custodial" (i.e., police detention) facilities for foreign detainees and that as far as possible consideration is given to the customs of foreigners, such as diet and religious activities. But beyond this brief reference, absolutely no other mention of foreign prisoners is made.


C. Situation of Foreign Prisoners (1) Foreign Prisoners and "Class F" Convicts


Foreigners are first divided into unsentenced and sentenced groups. The unsentenced group is scattered throughout Japan's detention center system. Foreign sentenced prisoners are sub-divided into two other groups, one which receives the same treatment as Japanese prisoners and another called "F Class," which consists of persons perceived to require different treatment from than of Japanese prisoners. F Class males are held at Fuchu or Osaka Prisons and females at Tochigi Prison. The number of F Class prisoners was 312 in 1992, 375 in 1993, 485 in 1994, 595 in 1995 and 597 in 1996 (the count is as of the last day of each year; source of the data is the Ministry of Justice Corrections Bureau).


(2) Language related Problems of Foreign Prisoners (a) Problems of Daily Life in Detention Facilities


There are many problems having related to the communication between prison authorities and foreign prisoners. Very often the foreign prisoners' understanding of Japanese is inadequate for even basic communication. Even those who have a moderate understanding of the language are usually are not able to understand the complexities of criminal law, rules of detention facilities, etc.


Investigating authorities and courts are required to provide interpretation in the course of interrogations and criminal hearings, even though the interpretation actually provided is fraught with problems. However, there is no legal requirement that interpretation be provided for communication between penal facility authorities and foreign prisoners. Very frequently the communication problems in the prison facilities are greater than those which occur in the interrogation or trial phases. There is an urgent need to ensure adequate interpretation in the prisoner's native language for the notification of rights and obligations at the time of incarceration, notification of important rules and the procedures for imposition of major punishments. Interpretation at detention centers, however, actually depends simply on the linguistic abilities of individual guards and foreign prisoners. This level of interpretation can only be described as extremely inadequate, both with respect to the number of personnel doing interpretation and the quality of their interpretation.


There have been a great many cases in which the language barrier has been the cause of actions by prisoners which have been taken to be rule violations, and which have led to violence by prison officers. It is therefore desirable that the ability of detention facilities to deal with language barriers be improved. A survey of Fuchu Prison conducted by the Research and Training Institute of the Ministry of Justice supports this conclusion.62


(b) Problems in Communication with the Outside World


There are also problems related to the communication between foreign prisoners and persons on the outside. At present, visitors who do not speak English, Chinese or a very limited number of other languages that detention facility officers are prepared to deal with are required to communicate in Japanese with sentenced and unsentenced prisoners. For example in the case of correspondence, there have been cases of extreme delays in receipt of letters because prison authorities ask the detainee's embassy to prepare Japanese translations for purposes of censorship. The picture is not entirely bleak. At Fuchu Prison mentioned above, an office to deal with problems concerning foreign prisoners has been established and efforts are being made to improve the prison's ability to deal with foreign languages when monitoring visits or censoring correspondence. But a better approach would be for Japan to follow the lead of authorities in European and North American countries where the practices of guards' monitoring visits and censorship of mail have basically been abolished. Except for the rare case where there is a special need for these practices, they should be abolished.


(c) Guarantee of Access to Newspapers, Books, TV and Radio Broadcasts in Foreign Languages


To persons deprived of their freedom, information in their native language is a precious commodity. The guarantees provided by Japan's detention facilities, however, concerning foreign language newspapers and books are extremely inadequate. There are some newspapers and books in English at large detention centers and prisons, but hardly anything is available in other languages. Smaller detention facilities have almost nothing at all in any foreign languages. Detention centers and prisons do not permit TV or radio broadcasts in foreign languages.


(3) Respect for Religious Precepts and Customs


Foreign persons may be accustomed to eating bread rather than rice for meals, and there are examples of religious customs such as the Islamic prohibition of eating pork. Other types of religious customs include worshipping at fixed times. When the number of foreign prisoners first began to increase, consideration for religious and other customs emerged as a major issue. Now, gradually improvements are appearing, such as Tokyo Detention Center's allowing visitors to bring canned Halal food for prisoners. The recommendations on treatment of foreign prisoners adopted at the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in 1985 provided for respect for religious precepts and customs.


(4) Cases of Serious Mistreatment Based on Race (a) The Mistreatment of a Foreigner at Tokyo Detention Center


Cases of racially motivated, discriminatory treatment of foreign prisoners are on record. Lawsuits claiming racist mistreatment were filed in 1993 and 1994 by, respectively, an Egyptian and a Nigerian63.64


(b) The Case of an American Inmate in Fuchu Prison


Mr. Kevin Neal Mara, a sentenced prisoner of American nationality, filed a suit seeking state compensation in July, 1996. Footnote 65 below summarizes the treatment he received during his detention at Fuchu Prison from March, 1993 to December, 1997, as alleged in the lawsuit. The case is now on trial. This case has received international attention due to coverage by the New York Times, the Washington Post, Time magazine and others. Among the key features of this case are that the plaintiff received punishment for exceedingly trivial reasons; that he was mistreated by guards who had bound his hands with leather handcuffs; and that he was put into solitary confinement because he had filed the suit.65


(c) The Case of an Iranian Prisoner at Fuchu Prison


In August, 1997, an Iranian national, Bahman Daneshian Far, serving a four-year sentence at Fuchu Prison, filed a 15 million yen damage suit with the Tokyo District Court. Mr. Far had been held at the prison from October 8, 1994 until January, 1997. After his release, he sent a letter describing the facts in his complaint to the Commission on Human Rights. As described in this chapter, section 2, C, (6), (c), this letter was taken up for consideration under the 1503 procedure. As described in the suit, filed on August 29, 1997, the facts of the case are as follows:


(i) Incident 1


During the shower time after work on April 1, 1994, Mr. Far was pushed by a Chinese prisoner and he pushed back. The incident was considered a case for punishment so Mr. Far underwent interrogation. According to Mr. Far, he told the senior guard who interrogated him exactly what had happened, but when this guard received a report from another prison official, he said angrily "[a]ll Iranians are liars." (The Fuchu Prison authorities deny this allegation.) Mr. Far replied, "There are bad and good Iranians, just as there are bad and good Japanese." This comment was taken as a "protest" and he was subjected to further interrogation.


On April 12, 1994, Mr. Far was officially informed that he would be given 10 days punishment. At this time, a guard, angered at what he considered Mr. Far's rebellious attitude because he did not stand at attention or bow to the block chief, slapped him in the face and placed metal and then leather handcuffs on him, which he pulled extremely tight causing great pain. The guards then forced the prisoner to lie face down on the floor. A bag was then placed over his head rendering him unable to see who inflicted the subsequent beating. He was beaten and kicked in the back and sides by shod feet. He maintains that he was kept in leather handcuffs for five hours and in a protection cell for two days. Further, he claims that he suffered permanent damage to his left leg caused by tightening around his waist of the belt used with the handcuffs.


(ii) Incident 2


Mr. Far's complaint states that on May 15, 1994, while he was standing brushing his teeth during a period of punishment, the solitary block chief asked him why he was not sitting in the punishment chair. When Mr. Far replied that we was brushing his teeth, the officer delivered a punch to the ear with full force. Then, once again, Mr. Far's hands were bound with leather handcuffs and he was beaten; left in the leather handcuffs for nine hours; then placed in a protection cell for two days. The Fuchu prison authorities maintain the reason for this punishment was that Mr. Far had spoken to the prisoner in the next cell and "looked threateningly" at the guard.


Mr. Far maintains that he was later handcuffed and beaten as in Incident 1. He was kept in a protection cell for 2 days, 9 hours of which with handcuffs on him. Mr. Far's ear became infected, leading to a continual discharge and permanent damage to the hearing in his left ear. According to the Fuchu Prison medical record for Mr. Far, he received treatment for his ear infection.


(iii) Incident 3


On July 19, 1994, Mr. Far was once again beaten, his hands bound in leather handcuffs and he was confined in a protection cell for a trivial reason, much like the second incident.


(iv) Incident 4


Mr. Far's complaint states that he was not permitted to send a letter to the Commission on Human Rights to notify it of the mistreatment described above, which he had received between December, 1994 and February, 1995.


On February 27, 1995, Mr. Far began a hunger strike to press his demand to send a letter to the Commission on Human Rights. On the following day, he was placed in confinement in a protection cell and, on March 1, he received an injection of some drug and nutrient was forcefully administered. A contemporaneous record obtained from Fuchu prison, preserved as evidence in the lawsuit, indicates that Mr. Far had begun a hunger strike, demanding to permission to send a letter to the "United Nations Commission on Human Rights," and that nutrient was forcefully administered.


(v) Incident 5


Mr. Far's complaint states that he was held for approximately nine months, from October 23, 1995 to July 15, 1996, in a special solitary cell designed for mentally ill prisoners, which was next to a cell holding a prisoner who spent his entire days talking to himself, striking his head against walls and kicking the walls. Mr. Far says he was told that he had been placed in this cell because he had "swallowed a razor blade," which was a groundless falsehood. A prison medical record preserved as evidence indicates that Mr. Far had been examined by a psychiatrist, but not that he had been found to suffer from any mental illness.


(vi) Subsequent Events


On July 1, 1996 Mr. Far appealed to the prison inspector concerning the abnormal situation into which he had been placed. This petition was recognized, and on July 15, after spending nine months in confinement under conditions of extreme mental stress, he was released from the special cell. It should be noted that his release coincided with the filing of the lawsuit by Mr. Kevin Mara.


(d) The Case of an Iranian Prisoner Held at Kurobane and Fuchu Prisons


Mr. Saeid Pilhvar, a 29-year-old Iranian now held at Fuchu Prison, began a hunger strike in 1997 while being held at Kurobane Prison to protest the prison authorities' refusal to provide him with an interpreter during punishment procedures, etc. The prison immediately began massive intravenous forced feeding of nutrient solution into his right thigh, resulting in paralysis of his right leg. This condition made it necessary to put him into a wheelchair. Presently, the toes, heel and ankle of his right foot show welts, and there is a strong possibility of its becoming gangrenous.


One month later, Mr. Pilhvar was transferred to Fuchu Prison. Here, he began another hunger strike to press for his request for an interpreter in order to communicate to his family about his plight. For eight days, the prison authorities force-fed him twice a day through a tube via his nose into his stomach. This regime ultimately caused Mr. Pilhvar to become completely unable to retain food. Standing 172 cm. tall, his original weight of 78 kg. dropped to 42.5 kg. He was transferred to the Hachioji prison hospital in October, 1997 and by the year's end, was returned to Fuchu Prison, without having received any substantial treatment at all.66


D. Position of the JFBA (1) Criticism of Present Practices by International Organizations and the Foreign Press


The strict regimentation of work and life at Fuchu Prison has become the subject of international criticism. This matter has been taken up by the international human rights organization Human Rights Watch in its 1995 report, "Prison Conditions in Japan," and by the U.S. State Department in its series of annual reports on the human rights situation in individual countries. The case of Mr. Kevin Mara was reported, when his lawsuit was filed, in the New York Times, the Washington Post and, as a special feature, in Time magazine.


The Associated Press distributed an article signed by Joseph Coleman concerning prisons in Japan on February, 1997.


Amnesty International issued a report on November 10, 1997 of an investigation, entitled "Ill-Treatment of Foreigners in Detention." This report was based on an investigation of approximately one month duration conducted by a team dispatched by the organization's International Secretariat in May, 1997. It provided detailed reports on cases of human rights violations suffered by 18 persons under detention in prisons, detention centers, police station detention cells and immigration bureau detention facilities used to hold foreigners.


One notable feature of this report's findings is the frequent occurrence of statements and actions by detention facility authorities expressing racial discrimination and that widespread occurrence of racist feelings among the personnel. Another feature is the imposition of inhumane punishments for trivial infractions of rules that exist at these facilities, but have not been disclosed to the public. Prisoners who do not bend to these rules are subjected to systematic violence, confinement in protection cells, and binding of their hands with leather handcuffs.


(2) Racist Statements and Actions as Violations of Article 20 Paragraph 2 of the Covenant


Many cases of mistreatment by guards have a background of racism and an institutional environment that tolerates it. Article 20 paragraph 2 of the Covenant obligates State Parties to prohibit by law the incitement to national, racial or religious discrimination, but Japan has passed no such legislation. The Japanese government ratified the International Convention on the Elimination of All Forms of Racial Discrimination in December, 1995. Nevertheless, the country lags conspicuously in assuming the obligation to eliminate discrimination in accordance with article 2; providing for remedies for racial discrimination in accordance with article 5; and establishing educational programs to deepen understanding of the goals of abolishing racial discrimination in accordance with article 7 of the Convention. The government of Japan must fully carry out its obligations under article 20 paragraph 2 of the Covenant and the International Convention on the Elimination of All Forms of Racial Discrimination. In particular, in order to prevent the recurrence of incidents such as those described here, the government must provide for human rights education for prison personnel, conducted by outside specialists consisting of lawyers, human rights NGOs, etc.


(3) Prevention of the Arbitrary Withholding of Paroles


In general, the government permits the percentage of the sentence which is served on parole to be considerably longer in the case of foreigners that for Japanese (only 60 to 70 percent of their sentences are served in prison).67 We do not take issue with the policy of giving foreigners early parole with the object of returning them sooner to their own countries. We are instead opposed to their receiving punishments for trivial rule infractions or parole review being denied to those who file complaints or lawsuits for human rights violations. We see from the case of Mr. Kevin Mara that unless one is willing to forego the possibility of parole and endure spending one's term in solitary confinement, it is a practical impossibility to file lawsuits or complaints against authorities. Mr. Mara has stated that he went ahead with his lawsuit well aware that he would be making this sacrifice, but did it anyway both for himself and for the many other foreigners in the same situation. The authorities' arbitrary imposition of detention, which is the practical effect of how it administers the parole system, is in violation of article 9 paragraph 1 and article 14 paragraph 1 of the Covenant.


In fact, these problems are shared by Japanese prisoners as well. The JFBA has proposed the same improvements in the parole system that have been adopted by European countries. This proposal is based on the clear principle that if there are no infractions of the rules for a certain period, the sentence is shortened following a fixed formula. Such a system is more just because if there are infractions of the rules, there is a clear formula according to which such infractions lead to the denial of the shortening of time served before parole.


(4) The Guarantee to Foreign Prisoners of Interpretation for Assistance in Daily Prison Life


Principle 14 of the UN Body of Principles guarantees that prisoners be informed of their rights and responsibilities in a language that they understand. The above-mentioned recommendations on treatment of foreign prisoners adopted in 1985 guarantee prisoners that they will be told of laws and rules immediately upon their confinement in a language that they can understand. The previously mentioned case of Mr. Saeid Pilhvar demonstrates that at Japanese facilities there is no such assurance of adequate interpretation.


The most urgent requirement of all is that foreign prisoners be guaranteed interpretation both at the beginning of confinement, when they are informed of their rights and obligations and of important rules, and also at times when punishment procedures are taken for rule infractions.


(5) The Guarantee to Use Prisoners' Native Languages in Visits and Correspondence


The recommendations on treatment of foreign prisoners provide for promotion of visits and correspondence. It is very important for prisoners to be able to use their own native languages in visits and correspondence. Since the monitoring of visits and the censoring of correspondence is a waste of the talent of competent prison officers familiar with foreign languages, such monitoring and censorship should be abolished as soon as possible. The linguistic talent of those officers should be turned instead to the promotion of direct and effective communication between the prison and foreign inmates.


In addition, since most foreign inmates do not have any family member in Japan, there is much more necessity for visits by and correspondence with their friends and NGOs.


CHAPTER 6: MENTALLY ILL PERSONS (Articles 7, 9 and 10 of the Covenant)

(1) Notice of the reason for an involuntary hospitalization


Various provisions of the Law Concerning the Mental Health and Welfare of the Mentally Disabled" (hereinafter "the Mental Health law") (such as articles 29 paragraph 3, 33 paragraph 3 and 33 paragraph 4(2)) require, when a person is involuntarily hospitalized, that the Prefectural Governor and the superintendent of the mental hospital give "notice" to the person hospitalized. These notices, however, do not state the reasons for detention as is necessary for the meaningful and effective exercise of the right guaranteed under article 9 paragraph 4 of the Covenant. Japanese law must be amended accordingly. (2) Independence of the Mental Health Review Boards (hereinafter, "MHRB")


A MHRB may, under article 38 paragraph 4 of the Mental Health Law, review requests for discharge from inpatients, but its system of review does not possess the characteristics of a court as required under article 9 paragraph 4 of the Covenant. In addition, the Mental Health Law provides neither for decisions "without delay on the unlawfulness of his detention" nor the power "to order his release if the detention is unlawful" as specified in article 9 paragraph 4 of the Covenant. Consequently, the Mental Health Law must be revised. (3) The right to compensation


A crucial element of a legal scheme which provides for detention of persons on the grounds of mental illness is a guarantee of compensation for unlawful detentions. Japan's legal system contains no such provision even though it is mandated under article 9 paragraph 5 of the Covenant and therefore Japanese law must be revised accordingly. (4) Inspection of treatment provided and the establishment of a standard of care


An independent, third-party entity, based on the guarantees of article 7 and 10 of the Covenant, must be established immediately. Such an entity should inspect the treatment provided persons involuntarily committed to mental hospitals. The standard of care should be determined concretely and include elements beyond merely the regulation of the patient's correspondence, meetings with others and subjection to bodily restraints. Japanese law should be revised in light of these considerations.


B. The Government's Response and its Fourth Periodic Report (paragraphs 71-72) (1) After the reformation of the "Mental Health Law" in 1987, inpatients or their guardians are entitled to request the Prefectural Governor to let them leave from hospital or to improve treatment. Upon the request, the Governor should request the Mental Health Review Board (MHRB) to review the request and, based on the results of the review, the Governor should take necessary measures.


(2) The Governor, upon receiving periodical reports from the superintendent of each mental hospital concerning the condition of each inpatient who is involuntarily hospitalized, should request the MHRB to review whether patients should be kept in the hospital or not and, based on the result of review, should order the necessary measures such as ordering the patients leave from the hospital.


(3) Under this system, three persons were found not to need further hospitalization under the periodic report review system, while thirty-four persons were found not to need further hospitalization under the request for release system.


C. Position of the JFBA (1) Notice of the Reason for an Involuntary Hospitalization (a) Under the legal provisions for involuntary hospitalization (article 29 of the Mental Health Law) and for involuntary hospitalization for medical care with the family's consent (article 33 of the Mental Health Law), the notification to the patient of the reason for hospitalization is a simple, preprinted form, which is merely handed out. The notice states only that as a result of an examination by an authorized, licensed physician (the "Designated Physician") the necessity of hospitalization has been diagnosed and the provision of the Mental Health Law under which the hospitalization is authorized. (forms 7 and 8 printed by Ministry of Health, Department of Mental Health and Welfare)


(b) Paragraph 1 of general comment 8(16) clearly states that article 9 paragraphs 1 and 4 apply to "all deprivations of liberty," and not merely to arrests on criminal charges. It follows that a person involuntarily hospitalized for mental illness enjoys the protection of the rights guaranteed in paragraphs 1 and 4. The guarantee of a judicial determination of the lawfulness of an involuntary hospitalization, as provided for in article 9 paragraph 4, can be meaningful only if the person is clearly informed of the grounds for his/her hospitalization. It is manifest that the minimal information provided in the forms described above in section (a) do not meet the requirements for a meaningful, effective guarantee under article 9 paragraph 4 of the Covenant.


(2) The Right to a Judicial Determination of the Lawfulness of a Hospitalization (a) Article 9 paragraph 4 is applicable for the detention on grounds of mental illness according to general comment 8(16) paragraph 1.


(b) The Non-judicial Nature of the MHRB


The MHRB does not meet the requirements of article 9 paragraph 4 of the Covenant for a "court" to determine lawfulness in that the MHRB in that the MHRB is not independent of administrative authority and lacks essential legal procedures. As such the MHRB cannot be considered to possess the characteristics of a "court" (Cf. under the European Convention Winterwerp v. Netherlands; Eur.Ct.H.R., Ser.A No. 33)


(c) Lack of Independence from the Administrative Authority


MHRB members are appointed by Prefectural Governors and each Prefectural Government provides the budget and the secretariat for its MHRB. The hospitalized person must submit a form requesting discharge to the Governor and the MHRB may review the case only when the Governor requires it to do so. Characteristic of the system as a whole, the decision of the MHRB is not sent to the applicant directly, but rather to the Governor of the Prefecture. In no sense can the MHRB be seen as an independent, neutral judicial body.


(d) Lack of Key Legal Procedures


Even at the stage of the examination of a petition for discharge there are no fixed procedures in accordance with which the concrete reasons for hospitalization are disclosed. This policy of non-disclosure extends to the report submitted by the mental hospital, which is not disclosed to the petitioner (patient) even if he has secured legal representative. Furthermore, the five-person MHRB panel does not in every case allow the applicant to convey his opinion directly to the MHRB. There is no fixed regulation concerning the use of patient interviews; practices vary by prefecture. For example, in Tokyo as a general rule Designated Physicians appointed by the Governor of Tokyo interview the applicant patient, albeit they are not members of the MHRB itself. Thus, the MHRB panel in such cases actually reviews the conclusions reported by the Designated Physicians. In the relatively good prefectures, the applicant patient is heard by a part of the MHRB panel, who are often psychiatrists.


In addition, the notice of the MHRB decision issued by the Governor often states no more than a bare conclusion. For example, "You still need to receive treatment in the hospital because of the result of interview. Thank you for your cooperation."


No legal procedure has been set up for complaints about MHRB decisions. As a practical matter the petitioner/patient has no avenue of appeal against an unfavorable MHRB decision. The mental hospital, however, at least according to the interpretation of the Ministry of Health, does have the right to a legal appeal if the MHRB decides in favor of a patient's discharge.


(e) The Ineffectiveness of Requests to Governors for Discharge


As of June 30, 1997, the number of patients involuntarily hospitalized in Japan is 99,599 out of a total number of mental hospital inpatients of 336,457. In 1996 the number of requests for discharge was 862 and the number of favorable decisions of discharge was only 43.


The number of successful petitions, only 43, is exceedingly small. The paucity demonstrates the ineffectiveness of the discharge petition system when it is measured against the large number of patients involuntarily admitted to mental hospitals in Japan.


(f) There is also a general procedure of habeas corpus based on the Habeas Corpus Law and the related Habeas Corpus Rule. Article 2 (1) of Habeas Corpus Law, however, makes a necessary condition of this procedure that the "a person [be] deprived of physical liberty without due process" and, in addition, article 4 of the Habeas Corpus Rule requires that that the person suffered at the hands of an official without proper legal authority or that there was a manifest violation of due process. Therefore, the Habeas Corpus Law and the Habeas Corpus Rule are of no avail in cases where the detention of a mentally ill person was initially legal, but later, due to the recovery of the patient, lost its meaning and hence legitimacy. Article 9 paragraph 4 of the Covenant is applicable to just such cases.


For instance, the Supreme Court has stated that the remedy of habeas corpus is available to hospitalized patients in only two cases: one is where the legally appointed guardian does not give his consent to the mental hospital based on the legal provision for hospitalization with family consent for medical care, and another is where there is an obvious error in the diagnosis that the person is mentally ill and that hospitalization is necessary for his medical and protection." (Supreme Court, Third Petty Bench, Civil Docket 253-435)


(3) Redress for Unlawful Hospitalization


Article 9 paragraph 5 of the Covenant guarantees the right of redress to a person who suffers from unlawful detention, including the case of detention without medical necessity, but does not require intention or error on the part of the incarcerator for such redress. But Japanese law does impose such requirements: Article 709 of the Civil Code, which applies to private persons, and Article 1 of the National Compensation Law, which applies to public entities, both explicitly require intention or error on the part of the incarcerator for relief to be granted. This is in clear conflict with article 9 paragraph 5 of the Covenant.


With regard to unlawful detentions, Japanese law provides only in the case of a criminally charged detainee for compensation without the requirements of intention or error on the part of the incarcerator. Hence we need a new legislation which includes the provisions applicable to persons detained for mental illness.


(4) Requests for the Improvement of Treatment (a) The Mental Health Law was revised in 1987 so a patient admitted to a mental hospital or his or her family can now petition the Prefectural Governor not only for discharge but also improvement in treatment during hospitalization.


(b) The number of appeals, however, is extremely low (48 in 1996) compared to the total number of patients hospitalized. Furthermore, the fact that only one petition was successful indicates the ineffectiveness of this mechanism.


(c) The scope of treatment subject to the petition procedure varies from one prefecture to another and almost all prefectures limit that scope to communication with the patient, visits and the use of physical restraints, which as somewhat concrete standards explicitly stated in law or regulations.


(d) Regarding to the treatment of hospitalized patients, if, even without the patient's petition, the Minister of Health and Welfare or the Governor of the Prefecture recognize the necessity, they may order the superintendent of a mental hospital to report the treatment of a hospitalized person or to submit the medical records and direct the staff concerned or a Designated Physician appointed by the Governor himself, to enter the mental hospital and inspect the medical record concerning a the treatment of a patient. (Article 38(6) of the Mental Health Law) Nevertheless, these investigations are not always effective because the superintendent of the hospital or others are given the notice of such visit beforehand. Actually, there have been a series of scandals in last five years. In the case of Kurita Hospital in Nagano Prefecture and Yamatogawa Hospital in Osaka Prefecture, which have been featured in many articles, this system did not work effectively and ill-treatment of inpatients was overlooked.


In a re-examination in the Kurita Hospital case, the following facts were discovered: (i) A considerable number of patients who did not fulfill the requirements for involuntary hospitalization were nevertheless hospitalized against their will. (ii) Inpatients did not receive written notice of their rights. (iii) When some patients voluntarily hospitalized requested discharge, the superintendent of the hospital kept them hospitalized neither disclosing the reasons for such an action nor following the necessary procedures to keep the patients in the hospital. (iv) The hospital forced ex-patients to take care of inpatients or inpatients must take care of each other. (v) The hospital limited the use of the telephone, and there were problems in the handling of money that inpatients or their family deposited with the hospital. Similarly, in the case of Yamatogawa Hospital, the following were discovered: (vi) Constantly the rate of occupancy exceeded the hospital's capacity. (vii) Facilities were poor and insufficient. (viii) There were shortages of medical staff. In the case of Yamatogawa Hospital after these facts were disclosed, a civil lawsuit was filed against Yamatogawa Hospital on the grounds that the hospital actively interferred in the communication and visits between patients and their lawyers. The patients prevailed in this lawsuit.


(e) The cause of such problems often pointed out is the cozy relationship between Prefectural Governments and private mental hospitals. Such a connection is very clear when patients who are involuntarily hospitalized by a Governor's order and patients who receive the social welfare, are for the most part routinely sent to certain, private, mental hospitals. The two mental hospitals mentioned above fit this description and so also the case of Utsunomiya Hospital that triggered the reform the Mental Hygiene Law in 1987. These problems will not improve until the national government establishes an inspection organization which oversees mental hospitals independently of Prefectural Governors who order involuntary hospitalizations, and which constitutes an independent and fair system of hospital inspections.


(f) In order to make clear the standard of treatment of patients a clear standard of treatment should be provided for in the Mental Health Law. This standard should include more than merely the following: communication, visits and physical restraints.


(5) Towards a Reform of the Mental Health Law


The Japanese Government declares its intention to revise the Mental Health Law next year and at this time many opinions from many quarters are being proposed and the JFBA has submitted the above proposals in relation to the Covenant. But the government has never discussed the relationship of such reforms with the Covenant in spite of the fact that there were two such opportunities after the reform of the Mental Health Law 1987.


CHAPTER 7: MEASURES FOR THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN

Section 1: Necessary Measures to Raise Status of Women in Japan (Article 3 of the Covenant)

In order to ensure that women are granted the equal rights set forth in article 3 of the Covenant: (1) In order to realize real gender equality and promote the participation of women in meaningful decision-making processes pursuant to article 2 of the Convention on the Elimination of Discrimination against Women, the Japanese government must enact a basic law that will apply also to private entities. (2) In order to improve radically the extremely low rate of women's participation in public agencies and private businesses, the new basic law must include: 1) rules regarding positive action so that the participation of women will be actively promoted; and 2) the imposition of the obligation to implement such positive action measures on the national government and regional public bodies.


B. The Government's Response and its Fourth Periodic Report (paragraphs 45-50)


With regard to article 3 of the Covenant in its Fourth Periodic Report, the Japanese government points to establishment of a "Headquarters for the Promotion of Gender Equality" within the government as a mechanism to raise the status of women, as well as on related measures. The Japanese government also legally established in April, 1997 the Gender Equality Investigation Committee charged with considering new legislation tentatively called the Gender-Equal Society Basic Law. Former Prime Minister Hashimoto has committed to introducing this bill in next year's regular session of the Diet.


However, the state of women's participation in Japanese society is very low both inside and outside government, which is out of balance with Japan's state of economic development. This situation is summarized below.


C. Japan's Current Situation (1) Women's participation in government


The percentage of women in the Diet currently stands at 7.6% (as of March 1997), which represents almost no progress since the last periodic report discussed the situation. In a worldwide comparison of women's participation in national governments carried out by the IPU in January, 1997, Japan ranked 124th out of 167 countries. According to statistics as of December, 1996,the percentage of women in the local assemblies amounted to a paltry 4.4%. (March 1997 investigation into state of women's participation in policy-making).


(2) Women's participation in administrative bodies


As indicated from the statistics in the government's report, the percentage of managerial-level women in national administrative agencies is less than one percent. As far as membership in investigative committees is concerned, while the percentage of women members has increased due to the setting of numerical targets, as shown in the government's report, it still amounted to only 16.6% as of March, 1997 (March 1997 investigation into state of women's participation in policy-making). The percentage of managerial-level women in local governments is also extremely low, e.g., the percentage of women holding managerial-level positions in central bodies of local governments, such as prefectural governor's administrations, amounts to only 1.9% (as of June 1, 1996 according to a Ministry of Labor investigation).


(3) Women's participation in private companies


The percentage of women employed in managerial positions in private businesses stood at 8.9% in 1996, essentially unchanged from 1991's figure of 8.2%. (General Administration Agency Statistical Bureau, 'Labor Force Investigation') The percentage of women managers in companies having 100 or more employees remains at 4.5%. (Labor Ministry, "Basic Statistical Survey Regarding Pay Structures")


D. Position of the JFBA


One of the reasons that women's participation in Japanese society lags so far behind is the absence of a basic law that would: (i) promote gender equality and women's participation and (ii) regulate domestic organizations to implement this goal. The Headquarters for the Promotion of Gender Equality, which is the principal organ responsible for this task, is an organization based not on statute but established pursuant merely to a government order. Japan ratified the Convention on the Elimination of Discrimination against Women in 1985 and that Convention provides that the practical realization of the principle of gender equality shall be ensured through law and other appropriate means. Similarly, the Japanese government in order to fulfill its obligation under article 3 of the Covenant must enact a basic law promptly.


Moreover, in order to improve radically the extremely low rate of women's participation in public bodies and private businesses, the basic law must: (i) include rules regarding positive action to promote the active promotion of participation of women; and (ii) impose on the national government and regional public bodies the obligation to implement such positive action measures.


Section 2: Measures Necessary to Remedy Inequities in the Employment of Women (Article 3 of the Covenant)

In order to ensure the equal rights for women as provided in article 3 of the Covenant: (1) A system of laws to prohibit gender discrimination in employment effectively must be enacted; (2) Measures must be enacted to develop systems for child care leaves and family care leaves; and (3) The Labor Standards Law must incorporate provisions, applicable equally to both men and women, limiting overtime and work on holidays, and prohibiting in principle work after midnight.


B. Subjects of Concern and Recommendations of the Human Rights Committee


In its comments as a result of its investigation of the Third Periodic Report of the Japanese government, the Committee expressed concern at "... discriminatory practices that appear to persist in Japan against women with regard to remuneration in employment, and notes that de facto problems of discrimination more generally continue to exist." (Comment, paragraph 10.)


C. The Government's Response and its Fourth Periodic Report (paragraphs 51-55)


With regard to measures regarding the employment of women, the Japanese government states in its report that it has taken measures to promote employment of women in private businesses and national government bodies through the Equal Employment Opportunity Law and the rules to ensure compliance with this law. The government goes on to report on its introduction of the Child Care Leave Law (1991) to enable male and female workers who also have family responsibilities to balance their working life with their family life. Finally, it describes its introduction of a family care leave system in a 1995 amendment to this law.


However, as will be seen below, because de facto discrimination in compensation, placement, education and training, and pay raises and advancement has not been remedied, and because the child care and family care leave systems are inadequate in many respects, women still do not have equal rights in the workplace.


D. Position of the JFBA (1) Gender-based employment discrimination still exists


The current problem in connection with discrimination in employment is that of pay differentials, i.e., discrimination in compensation. According to 1995 pay statistics covering all industrial workers but excluding part-time employees, women's pay amounted to only 60.4% of that of men's, which figure constituted little improvement over the 56.6% figure of ten years earlier. (Labor Ministry, "Basic Statistical Survey Regarding Pay Structures") Particularly noteworthy is that while the differential is small when workers are young, it increases as workers get older: for example in the 50-54 age group, women earn only 52.5% or barely half of what men earn. This kind of disparity in income derives from the various forms of discrimination described below.


(a) Employment discrimination by employment tracks


At the recruitment and hiring stage, employees are classified into different tracks depending on the extent to which they agree to change positions and geographical locations within the company. After the 1985 Equal Employment Opportunity Law went into effect, the number of companies establishing such a tracking scheme increased. The percentage of companies adopting this type of tracking system was 4.7% in 1995, but among financial and insurance-related businesses the figure reached 34%. (Labor Ministry, "Basic Survey Regarding the Employment and Management of Women 1995")


In the main form of this tracking system, there are two essential features: 1) positions are divided into an "essential duties" track, in which "job-related relocation is required, and the work includes planning and outside negotiations," and a "general clerical employment" track in which so-called general clerical work is performed; and 2) men are recruited and hired for "essential duties" track positions and women are recruited and hired for "general clerical employment" track positions. Among companies adopting this type of tracking system in 1995, 72.4% restricted the "essential duties" track to "men only," while a "women also eligible" policy existed for this track in only 27.6% of the companies. Conversely, the "general clerical employment" track was described as "women only" in 74.9% of companies, while "men also eligible" was applied to this track in only 19.1% of companies adopting this system. The pay for employees increases substantially with age in the "essential duties" track, but only slightly in the "general clerical employment" track. Furthermore, in this track, the rate of increase declines, and in many such systems a clerical (i.e., female) employee's pay essentially stops rising once she reaches her mid-40's. On the surface, this situation is considered the difference in the tracking system based on job duties, but in effect, the pay differential between men and women increases with age, due to the gender discrimination reflected in the tracking system.


(b) Discrimination in advancement and promotion


In 1995, only 58.8% of companies could claim to have "at least one woman manager at the level of supervisor." Moreover, the percentage of women managers decreases as the management position advances, and only 14.3% of companies had at least one woman at the level of "department head or higher." When viewed from the standpoint of gender discrimination, if the total number of managers is deemed 100%, the percentages of women holding the following positions are as follows:


Supervisor or equivalent 7.3%


Section manager or equivalent 2.0%


Department head or equivalent 1.5% In other words, 98.5% of persons reaching the position of department director are men.


Currently, pay schemes associated with job duties and job skills are the norm in Japan. Therefore, one's pay rises as one's qualifications rise. In this way, the dearth of women managers and discrimination in promotion described above leads to gender-based pay differentials. This discrimination in promotion has already been determined by the courts to constitute a violation of law. (Matter of Shiba Credit Union, Tokyo District Court, Judgements of November 27, 1996; Matter of Social Insurance and Medical Treatment Compensation Fund, Tokyo District Court, Judgements of July 4, 1990,etc.)


(c) Other forms of indirect discrimination


The employment tracking and discrimination in promotion described above are not clearly defined as gender-based forms of discrimination. Companies that adopt employment tracking claim that it is based on the type of position, and that tracking decisions result from evaluations of "motivation" and "ability." However, the "essential duties" track that requires job-related relocation is a very difficult one for many women to choose, as at present women generally have principal responsibility for the day-to-day household. Moreover, women that suffer discrimination in placement and training upon joining a company are often placed in positions in which they cannot demonstrate their "motivation" and "ability," and thus cannot hope for significant advancement.


In addition, in some private companies various allowances that comprise a portion of one's total pay are provided only to workers who are the "head of household" or the "principal income earner." However, since as between a married man and woman it is customary for the man to be the "head of household," and it is generally the case that men, who earn more, are the "principal income earner," many married women workers do not receive these allowances as part of their pay. The courts have held that this classification of "head of household" constitutes unlawful discrimination. (Matter of Sanyo Bussan, Tokyo District Court, Judgement of June 16, 1994.)


(d) Discrimination based on employment status


One problem relating to the form of employment is that many women are non-regular workers, such as part-time workers. Non-regular employees such as part-time or temporary workers comprised 23.2% of total employees (excluding company directors) in 1997, but 41.7% of female employees were non-regular employees. (General Administration Agency Statistical Bureau, "Special Labor Force Survey")


Non-regular employees generally earn less than regular employees. Moreover, 70% of women working as non-regular employees are part-time employees (i.e., 30.0% of all women employees work part-time). Pay for these part time workers is only 69.3% of that of regular women workers, who themselves earn less than their male counterparts. (Ministry of Labor, "Basic Statistical Survey Regarding Pay Structures 1996")


(2) Problems with the Equal Employment Opportunity Law


The Equal Employment Opportunity Law enacted in 1985 has not served to remedy this type of discrimination. The Law provides simply that a business owner has an obligation to make good-faith efforts not to discriminate in recruitment, hiring, placement and promotion. There are no provisions for sanctions against parties violating this obligation. There are no special tribunals or agencies having the authority to compel relief, and consequently women who suffer from discrimination have no choice but to file suit, which in Japan is time-consuming and costly.


The JFBA and many individuals have called for the Equal Employment Opportunity Law to be amended to correct these flaws. In the face of these public demands, the Equal Employment Opportunity Law was amended in June of 1997. However, while the amended Law constituted progress in that it outlawed discrimination in recruitment, hiring, placement and promotion, it did not include measures to eliminate de facto discrimination, and is essentially toothless. Accordingly, a statutory scheme to effectively prohibit gender discrimination in employment is still needed. The JFBA strongly urges that the Law be amended in regard to the following points in particular.


(3) Problems with the 1997 Equal Employment Opportunity Law (a) It is a one-sided law that prohibits only discrimination against women. It does not address discrimination against men.


(b) There is no prohibition of indirect discrimination.


As described above, discrimination against women in Japan takes the nominal form of employment tracking, or "ability-based employment," but effectively results in discrimination against women and places them in positions with poor working conditions. Nonetheless, there is no provision prohibiting indirect, de facto discrimination that results in discrimination against women.


(c) The provisions regarding positive actions (special provisional and positive measures) are totally inadequate.


As described above, women are subject to various forms of workplace discrimination. The law regarding positive actions to remedy this discrimination provides merely that "[a] business owner may take special measures to remedy discrimination. In such cases, the national government shall provide consultation and assistance," and there are no enforcement provisions whatsoever.


(d) The provisions regarding sexual harassment are inadequate.


Currently an employer has merely the duty to "take care" to ensure that women are not sexually harassed, and there are no provisions prohibiting sexual harassment.


(e) There are no penalties against employers committing unlawful discrimination, and existing measures are inadequate.


Customarily, a business owner who discriminates against women receives advice, guidance and warnings from the director of the Women and Minors' Office, although to cover the situation in which the warnings fail to remedy the situation, a provision was enacted whereby the name of the business may be publicized. However, it is extremely difficult to increase the effectiveness of the prohibition of discrimination against women based on this mechanism alone. Stricter measures, including penalties against employers violating the law, must be enacted.


(f) Absence of measures to provide relief to victims of discrimination


Because there are no enforceable means by which women who have suffered from discrimination may obtain relief, their only recourse is to bring the case to the courts, which is a time-consuming and expensive procedure as was mentioned above.


(4) Problems with Revisions to the Labor Standards Law


At the same time that it revised the Equal Employment Opportunity Law, the Japanese government introduced a law that abolished the provisions in the Labor Standards Law that: prohibited women from working after midnight; set a maximum amount of overtime for women employees; and limited work on holidays. These revisions, however, would not bring about the equality between men and women.


In past practice, male workers in Japan have been able to work an unlimited amount of overtime if they have agreed to do so. The result has been the emergence of the internationally recognized problem of "karoshi," or death from overwork. In such an environment, in which the problems of long hours and overwork are overlooked, equality for women is impossible. For women who are generally required to be in charge of the day-to-day household, career advancement will become increasingly difficult, and they will have no choice but to give up on working as a regular employee in such an environment. This will leave them the only other option of working as a non-regular worker, such as a part-time or temporary employee under relatively poor working conditions.


The JFBA urges that the Labor Standards Law be revised to: 1) limit the number of overtime hours that men and women can work; 2) limit holiday work; and 3) prohibit work after midnight in principle.


(5) Problems with the Child Care Leave and Family Care Leave Laws


While the provisions in the child care leave system that permit child care leave until a child is one year old and prohibit work after midnight until the child reaches school age state that the leave may be requested by a worker, the right of approval rests with the employer, and these provisions do not truly confer rights on workers. In addition, the compensation during a leave of absence provided by the unemployment insurance system to someone who is not working amounts to only 25% of one's average pay, so that leaving work in order to provide child care entails a severe reduction in income. Consequently, where both a husband and wife work it is inevitably the lower-paid woman worker who takes the child care leave.


Under the family care leave system, family care leave may be taken for up to three months, and only one leave may be taken for a particular purpose. Considering that the facilities for caring for the elderly and infirm are extremely inadequate, the current system is clearly insufficient.


Section 3: Measures Required to Change the System Mandating Same Family Names (Articles 3, 17 and 23 of the Covenant)

Because article 750 of the Civil Code, which requires a husband and wife to have the same family name, violates articles 3, 17 paragraph 1, and 23 paragraphs 2 and 4 of the Covenant, the Japanese government must immediately take measures to revise the law.


B. The Government's Response and its Fourth Periodic Report (paragraph 192)


In the section of its Fourth Periodic Report regarding article 23 of the Covenant the Japanese government reports that the Legislative Council, an advisory body to the Minister of Justice, submitted to the Minister in February, 1996 the "Draft of the Bill for Partial Revision of the Civil Code" that includes revised provisions introducing a system whereby married persons can elect to have different surnames. But the Japanese government has not seen fit to submit the bill to the Diet.


C. Position of the JFBA (1) Problems with requiring identical marital surnames


Article 750 of the Civil Code requires that when a man and woman marry, one of them must choose the surname of the other party so that both spouses will have the same surname; having a surname different from that of one's spouse is absolutely forbidden. In this system, officially either the husband's or the wife's name may be chosen, but because as a practical matter 97.4% of couples choose the husband's name, this system operates to force women to change their name. This practice in turn maintains and perpetuates the discriminatory, societal view of marriage in which a woman who marries submits herself to the patronage and protection of the man.


This requirement that spouses have the same surname not only entails changing one's family register, but also mandates the use of their married names with government agencies. A woman researcher who used her maiden name as her professional name was forced to use her family register name upon becoming a professor at a national university, and when she filed suit in order to be allowed to use her professional name, the Tokyo District Court dismissed her complaint on November 19, 1993.


As stated in the general comment 19 of the Committee, article 23 of the Covenant includes the requirement that each national government shall guarantee: 1) the right of either spouse to retain the use of his or her original family name; or 2) the right of both spouses to jointly choose a new family name from the standpoint of equality. Consequently, because the requirement in the Japanese Civil Code that spouses have the same surname does not recognize the right of a woman to marry without changing her name, it is in violation of article 23 paragraphs 2 and 4 of the Covenant. In addition, the government's enforcement of the same-surname requirement by means of law comprises interference with one's private life, forbidden by article 17 paragraph 1 of the Covenant. Finally, taking into account the fact that the same-surname requirement functions as a practical matter to compel women to change their name, this system prevents men and women from enjoying equal rights, and therefore it also violates article 3 of the Covenant.


(2) Public opinion and the attitude of the Japanese government


Requiring that spouses have the same surname is also not supported by public opinion. In a generational survey conducted by the Prime Minister's office between the late June and early July of 1996, the notion of separate names for married couples was supported by 68% of men in their 20's, 79.7% of women in their 20's, 75% of men in their 30's and 83.4% of women in their 30's; the only groups in which a majority disapproved were men 60 and older (of whom 71.3% disapproved--the largest percentage in the entire survey), men in their 50's and women in their 60's. As reported in the Fourth Periodic Report of the government the Legislative Council, an advisory body to the Minister of Justice, submitted to the Minister in February, 1996 the "Draft of the Bill for Partial Revision of the Civil Code" that included revised provisions in order to introduce a system whereby married persons could elect to have different surnames. However, although two years have passed since this report was presented, the Japanese government has not yet submitted the bill to the Diet. During this period opposition parties have submitted bills to the Diet revising the same-surname requirement, but these bills have been discarded due to the ruling party's opposition. Most recently, a bill containing such revisions was submitted on March 6, 1998 by opposition party Diet members as Diet member-sponsored legislation. With these events as a backdrop, in order for the legislation discontinuing the enforced use of the spouse's surname to be achieved the Japanese government must take the initiative to enact revised legislation to eliminate the same-surname requirement, but the government has, so far, taken no action.


Section 4: Measures to Guarantee Gender Equality With Regard to School Textbook Approval (Articles 3 and 19 of the Covenant)

The Japanese government's interference via the school textbook authorization system with the freedom to express opinions promoting gender equality violates articles 3 and 19 of the Covenant.


B. Subjects of Concern and Recommendations of the Human Rights Committee


In its consideration of the Third Periodic Report of the Japanese government the Committee examined the problems relating to the school textbook authorization system as problems pertaining to freedom of expression and, in its comments appended to its investigation, indicated its main concern as follows: "The Committee regrets that there appears to be a restrictive approach in certain laws and decisions as to respect for the right to freedom of expression." (Comment, paragraph 14)


C. The Government's Response and its Fourth Periodic Report (paragraphs 176-177)


In its discussion of article 19 of the Covenant in its Fourth Periodic Report the Japanese government maintains the following attitude with respect to problems arising out of school textbook authorization: "Such restriction of the freedom of expression is within the limits of rationality and necessity." The school textbook authorization system is being used, however, as a means to suppress expression seeking to promote gender equality, as described below.


D. Current Situation and Problems


In Japan, textbooks used in public schools undergo a process of prior authorization called "kentei," carried out by the Ministry of Education, in which the Ministry reviews textbooks and suggests that passages be revised or deleted. Textbooks which do not adopt these suggestions are rejected and not approved for publication.


The Ministry of Education rejected a 1997 high school home economics textbook that emphasized individual self-reliance and self-respect, including issues such as separate names for married couples and the single life. This textbook covered such subjects as sex roles as societal constructs, the increase in unmarried domestic partners, and women's reproductive health rights, but the Ministry of Education had many comments and requests for revision and determined that these topics were inappropriate. Its rationale was reported as that: Family life is based on the family structure, which comprises a married couple and children. To describe various forms of family first would put the cart before the horse, and in accordance with the purpose of the guidelines for guidance, we cannot help but make comments regarding these passages.


E. Position of the JFBA


The Ministry of Education's "kentei" (i.e., prior authorization system) of textbooks deprives textbook authors of the opportunity to convey information about alternative lifestyles to high school students via textbooks, and high school students of the chance to learn about these topics, thereby infringing on the right to freedom of expression guaranteed in article 19 of the Covenant. Moreover, the Ministry's interference in violation of the Covenant is a problem inherent in the "kentei" system itself, in which the contents of textbooks can be easily interfered with by the requirement of prior approval, based on the government's fixed values. In addition, because the "kentei" of the home economics textbook in this case was designed to limit education regarding freer lifestyles for women that do not conform to traditional views of the family or stereotyped sex roles, it is in direct conflict with article 3 of the Covenant, which guarantees equal rights for women. The Japanese government must stop infringing on the right to freedom of expression through its textbook authorization system.


Section 5: Measures to be Taken for the Elimination of Violence Against Women

It is a violation of articles 2 and 3 for the government of Japan not to have undertaken effective protection of victims of domestic violence, sexual harassment in the workplace, rape, child prostitution, trafficking in foreign women forced into prostitution and the system of "comfort women."


The government of Japan should undertake the necessary measures to research the true dimensions of these problems, to prevent these offences in the future and to provide remedies for the victims in accordance with the position of the JFBA outlined below.


B. The Government's Response and its Fourth Periodic Report


The issue of violence against women taking place in Japan was not addressed in the consideration of the previous periodic report, nor has the government of Japan addressed this issue in its the Fourth Periodic Report.


C. The Situation in Japan (1) Measures taken by the Government of Japan


The Government of Japan reports its submission at the 50th session of the UN General Assembly of a resolution to establish a trust fund within UNIFEM for the elimination of the violence against women, the adoption of this proposal and the readiness of the Japanese government to provide moneys for that fund.


The Government, in order to create concrete measures to eliminate violence against women which would reflect the Beijing Declaration and Platform for Action, produced in July, 1996 a document called "The Vision of Gender Equality" and in December, 1996 "The Plan for Gender Equality 2000." In addition, the Sub-group on Violence Against Women of the Council on Gender Equality has since last fall been studying the issue on violence against women.


Therefore, the Government could seem to have been actively addressing this issue. However, it is urgent that the Committee in its considerations focus on what are the appropriate, concrete measures for the government of Japan to undertake in order to rectify the critical situation of violence against women in Japan.


(2) The Situation of Violence against Women in Japan (a) The Lack of the Recognition of Human Rights Violations


Violence against women in Japan takes many forms: the discussion to date has focussed on abusive husbands, sexual harassment, rape, pornography, child abuse, teenage prostitution called euphemistically in Japanese "supported dating" (enjokousai)(adult males paying for sexual favors of junior or high school girls), trafficking in women and forced prostitution, sex tours and military enslavement ("comfort women"). The level of awareness in Japan, however, that the above-mentioned violence infringes on women's human rights and discriminates against women remains low.


(b) The Lack of Real Data and Analysis


In addition, there is little data or research available in order to determine accurately the degree of violence against women. Neither the annual police white paper "keisatu-hakusyo" nor the criminal white paper compiled by the General Research Institute of Legal Affairs under the Ministry of Justice contains any data disaggregated on the basis of gender. It is therefore impossible by using such sources to understand the real state of violence against women in Japan.


(c) Hidden Violence against Women


According to the crime statistics for 1995 from the National Police Agency (hereinafter "NPA"), there were 846 violations of the Criminal Code (exclusive of traffic accidents) in which wives or female companions were victims of their male partners, and 229 such violations in which the victims were husbands or male companions. This amounts to 3.69 times more female than male victims.


Similarly in the case of homicides, there were 130 cases in which the victims were wives or female companions and 79 cases in which the victims were husbands or male companions, so the ratio of female victims was 1.64 times greater than that of male victims. In the cases of assaults, injury, intimidation, and extortion, the victims were female in 550 cases and male in 64 cases,yielding a rate of victimization of women 8.6 times greater than men.


The results of a temporary telephone hotline on spousal violence established by the JFBA from 1994 to 1996 and again in 1998 are set out in the ANNEX to this counter report. One can conclude from those results that many assaults by husbands against their wives go unreported, and even if such incidents are reported, they do not result in official action by authorities. Consequently we can infer that a considerable amount of domestic violence is hidden from view.


In marriage-related cases (including divorce) brought before family courts in fiscal 1996, the second most common reason for complaints brought by wives was violence at the hands of their husbands, and the fourth most common reason was mental cruelty.68 The sum of these two reasons (physical and mental abuse) far surpasses the number one reason for legal complaints by wives (personality conflict). There are 11,720 complaints based on violence committed by husbands and 7,360 based on their mental cruelty among the 37,395 complaints brought by wives in the same year.


Accordingly, the incidence of violence against women within the family can be characterized as hidden. Abuse by spouses are not reported and remain out of sight. Although 90% of divorces in Japan occur by mutual consent and therefore bypass judicial scrutiny and the causes of the marital break-downs are not disclosed, one can infer from the high incidence of violence reported as a cause for legal complaints by wives in family court cases that violence against wives plays a large role in divorce and this violence remains for the most part beyond the public view. The statistics available show only the tip of the iceberg.


The decrease according to the NPA white paper in the number of rapes from 4,677 victims in 1972 to 1,297 in 1996, far from reflecting progress, more probably indicates that women in large numbers suffered in silence and did not report rapes to the police. Violence against women in Japan, including sexual harassment which cannot be punished under the present Criminal Code, has been largely hidden and malignant.


(d) Foreign, female victims of human trafficking and prostitution


It is widely acknowledged in Japan that many women mainly from poor countries in Asia have come to Japan through human trafficking, and have been forced into prostitution. According to the NGOs which support the victims of human trafficking and prostitution these women enter Japan as short-term visitors and then they, deprived of their passports, identification papers and return air tickets and informed that they have been sold at a price of three to three-and-a-half million yen, are compelled to repay such a sum to a middleman or the person who runs a brothel. Consequently these women are forced to engage in prostitution until they can repay such a sum. It is public knowledge that these women, deprived of their dignity and freedom, are in a deplorable condition.


However, the government of Japan has no policy other than sporadic arrests of these women as illegal aliens on the basis of the Immigration Control Law or as prostitutes under the Law for the Prevention of Prostitution. This lax approach does little for the prevention of the victimization of these women and for their rescue based on a view of the protection of these women's human rights.


(e) The real state of the shelters for battered women


The government of Japan has not built any shelters for the female victims of violence. Battered women are allowed to use the temporary shelters in the Women's Counseling Centers; however, because these centers are facilities for the prevention of prostitution, permission for victims of violence to use these facilities is premised on the assumption that these women might become prostitutes. According to one survey, in 1995 out of the 2,722 women who entered temporary shelters in the Women's Counseling Centers 1,044 (i.e., 38.4%) cited the violence of their "partners" as the reason for seeking shelter. ("Partners" in this case includes husbands, common-law husbands, ex-husbands and pimps.) In 1992, out of the 2,512 women seeking shelter only 867 (i.e., 34.5%) pointed to domestic violence as the cause of their flight. These statistics show the number of battered women seeking asylum in Women's Counseling Centers is increasing. As for battered women accompanied by children, if the child is a boy older than ten the Women's Counseling Center will separate them and send the child to the Child Welfare Center for his protection. Although the wives who flee from their husbands' violence and their children can be allowed to live together in a type of public housing set up by local governments, called Facilities for Supporting the Lives of the Mothers and their Children, these facilities are not primarily intended for such a purpose and are used as shelters for such victims merely as an expediency based on authorization in a notice circulated by the Ministry of Health and Welfare. Moreover, it is not well known to local governments that such facilities may be used as an emergency shelters for these battered women.


Although there are about 20 private shelters in various cities in Japan, rescue facilities for battered women in Japan, even taking into account these private resources, are hardly adequate.


D. Position of the JFBA (1) Violations of the Covenant


Although violence against women, by husbands at home and sexual harassment in the workplace, often occurs in Japan, no effective protection is extended to these victims as well as to rape victims, victims of juvenile prostitution, foreign, female victims of prostitution through human trafficking and so-called "comfort women." This lack of protection constitutes a violation of articles 2 and 3 of the Covenant. That is to say: (a) proper actions for the sake of victims of domestic violence as provided for in article 23 paragraph 4 of the Covenant have not been taken. (b) The victims of sex crimes, including rape, can suffer degrading treatment during police investigations, court proceedings or at the hands of the mass media in violation of article 7 of the Covenant. Their privacy, honor and reputations can be attacked or unlawfully interfered with in violation of article 17 of the Covenant. Nevertheless, no proper actions have been taken by the government for prevention of violent crimes against women, such as rape, or for effective remedial measures. (c) Victims of prostitution through human trafficking are in slavery through the slave trade and forced to perform labor (prostitution), which are prohibited under article 8 paragraphs 1 through 3(a) of the Covenant. (d) The National Foundation for Asian Peace, an incorporated foundation controlled by the government, is not designed for the legal compensation of victims but rather for the evasion of responsibility by the state. The government has not until now acknowledged its legal responsibility and apologized, nor has it compensated victims of the so-called comfort women system.


(2) Actions to be taken by the government


Hence, the government should take the following actions for the investigation of the facts, the prevention of future victims and the redress of present victims.(a) Research and investigation to understand the facts and full disclosure of the results


The government must, from a point of view sensitive to gender, collect, investigate and research comprehensive statistical material of the true situation. Without such collection, investigation and research, it is impossible to understand how the laws related to violence against women are implemented in the legal system and where the problems lie as well as to formulate sound policies for the redress of victims, including support for the recovery of their independence and protection of their privacy. (b) Measures for protection from violence and redress


The government must act to improve the education provided to perpetrators of violence against women; improve remedies and support facilities for their victims; and eliminate gender bias in the courts. That is to say: (i) The government must eliminate the sexual double standard prevalent in Japanese society, namely the practice of dealing severely with women but leniently with men. Secondly, the government should conduct a thorough, human rights educational program from the stance that violence against women is a violation of the human rights of women. This program should be carried out in schools, adult education, seminars for persons connected with the legal system and as an educational component in the correction of perpetrators of violence. (ii) Shelters


The government must not resort to mere expediencies but rather make clear its commitment to the elimination of violence against women, redress for such victims and the establishment of shelters which take into account the well-being of battered women and their children. Also the government should give public assistance to private shelters. (c) Proper actions against spousal violence (i) The government must improve the legal system to prevent domestic violence and to provide remedies for victims; make clear that violence against women is illegal; produce supporting policies for the autonomy and independence of battered wives; and set up a system for their care. (ii) The Ministry of Justice, when it grants the visa status of a spouse of a Japanese, requires as a condition of such status certain conditions, such as cohabitation, which are beyond those required by law. However, because of this sort of interpretation by the Ministry of Justice, foreign wives, even if they want to flee the violence of their husbands, cannot separate from their husbands lest they lose their visa status. Therefore the Ministry of Justice must not impose additional conditions, such as cohabitation, to the legal conditions for the visa status of spouse of a national. (d) Necessary steps to be taken against sexual harassment


The Japanese government must establish effective provisions for the prohibition of sexual harassment and institute an effective system of redress.


The reform of the Equal Opportunity Employment Law in June, 1997 provided that the employer is obliged to take into consideration problems arising from statements of a sexual nature made to female workers. But the details of this provision were left to orders from the Ministry of Labor and thus the content of the provision is not very clear. The compensation from a lawsuit for monetary damages is very low, and not sufficient redress for victims. (e) Actions to be taken against rape


The government must improve the present situation in which it is not easy for victims to file reports of rape with the police; must improve the medial care system at hospitals so that victims can receive appropriate care without unnecessary stress while the integrity of evidence is maintained; and finally must deliberate concerning a legal system, including the criminal law, which will protect the privacy of the victim. (f) Actions to be taken against prostitution based on human trafficking (i) The concerned, domestic authorities, i.e., the police. the immigration bureau, the Ministry of Health and Welfare and local governments, must set up sufficient, proper emergency shelters for foreign women who might suffer from human rights violations, such as human trafficking, prostitution, rape, etc. and then inform them in their own native languages, how to contact these shelters. (ii) Investigative authorities, such as the police and the immigration bureau, must investigate and uncover the system of organized crime behind the scene and their middlemen. (iii) The government should cooperate with NGOs and give them financial assistance. (g) Actions to be taken with respect to the so-called "comfort women" problem The government must listen to the advice of U.N. organizations for the resolution of the "comfort women" problem and take action immediately in accordance with the proposal of the JFBA, such as the investigation of the true facts, redress for victims, a history education which learns from history.69


CHAPTER 8: MEASURES FOR THE RIGHTS OF CHILDREN

Section 1: Measures to Abolish Discrimination against Children Born Out of Wedlock (Articles 2, 24, and 26 of the Covenant)

The government should take measures to abolish discrimination against children born out of wedlock by amending the provision in article 900(4) of the Civil Code, which prescribes that the inheritance of a child born out of wedlock shall be one half of that of a legitimate child, and thus is not consistent with article 26 of the Covenant.


B. Subjects of Concern and Recommendations of the Human Rights Committee


Article 900 paragraph 4 of the Civil Code prescribes that the inheritance of a child born out of wedlock shall be one half of that of a legitimate child. On a birth registration form, there is a check box to indicate whether the child is legitimate or illegitimate, and on the family registration the child's relationship with his or her biological parents is indicated differently depending on whether the child was born out of or within wedlock.


The comments of the Committee at the conclusion of its consideration of the Third Periodic Report of the Japanese Government showed that, "[t]he Committee is particularly concerned at the discriminatory legal provisions concerning children born out of wedlock. In particular, provisions and practices regarding the birth registration forms and the family register are contrary to articles 17 and 24 of the Covenant. The discrimination in their right to inherit is not consistent with article 26 of the Covenant."(Comment, paragraph 11) The Committee went on to state, "[t]he Committee also recommends that the Japanese legislation concerning children born out of wedlock be amended and that discriminatory provisions contained therein be removed to bring it into line with the provisions of articles 2, 24 and 26 of the Covenant." (Comment, paragraph 17)


In June, 1998, the Committee on the Rights of the Child stated in their concluding observations that the Committee was particularly concerned that the Civil Code explicitly permits discrimination of inheritance of children born out of wedlock and that birth out of wedlock is mentioned in official documents. (paragraph 14) It also recommended that legislative measures should be introduced to correct existing discrimination of children born out of wedlock. (paragraph 35)


C. The Government's Response and its Fourth Periodic Report (paragraphs 199-202)


The Japanese Government has not, however, taken measures to amend the portion of the Civil Code which prescribes discrimination against children born out of wedlock. The Fourth Periodic Report by the government declares, "the Government of Japan does not consider that a distinction between the statutory share in succession of an illegitimate child and that of a legitimate child necessarily constitutes unreasonable discrimination against illegitimate children."(paragraph 199) The government is very provocative and shows bad faith towards its obligations under the Covenant.


D. Position of the JFBA (1) Discrimination in Inheritance against Children Born Out of Wedlock


In February, 1996 the Legislative Council, an advisory body to the Ministry of Justice, adopted a partial revision of the Civil Code which prescribed that the inheritance of a child born out of wedlock shall be equal to that of a legitimate child. The draft bill was to be discussed subsequently and the Ministry of Justice announced that it would try to coordinate the various opinions of concerned parties in order to submit the draft bill. The Ministry of Justice did not try, however, to make the public understand the draft bill nor has it submitted the bill to the Diet.


The government states in its Fourth Periodic report that, "[a]n opinion survey conducted in 1996 showed ... only 25.0% expressed the view that the statutory shares in succession of legitimate children and illegitimate children should be equalized. Thus, it is difficult to say that a public consensus has been reached on the reform of this system." (paragraph 202) However, such a survey is not necessarily reliable because a survey conducted by the Yomiuri Shimbun Newspaper in the same year (1996) showed that the 46% of respondents were in favor of abolishing the discrimination in inheritance against children born out of wedlock, while only 27% were against such a change in the law. In the first place the government should educate the public to promote the abolition of discrimination against children born out of wedlock.


With respect to such discrimination in inheritance, the Tokyo High Court decided on June 23, 1993 that the provision in article 900 paragraph 4 of the Civil Code violates article 14 paragraph 1 of the Japanese Constitution, which prohibits any discrimination based on the social status, and therefore is null and void. But the Japanese Supreme Court handed down a decision on July 5, 1995, that holds, "the provision [in article 900 paragraph 4] which prescribes that the statutory share in succession of an illegitimate child shall be one half of a legitimate child cannot be said to be extraordinarily unreasonable or beyond the reasonable discretion of the legislative body in relation to its legislative intent. So, the provision cannot be said to be discriminatory without rational reason as being against Article 14 paragraph 1 of the Constitution." The decision did not respond to the argument that the provision is in violation of the Covenant.


However, five justices produced concurring opinions and the other five justices dissented from the majority opinion. The dissenting opinions stated that the provision in article 900 paragraph 4 of the Civil Code is null and void because it is against Article 14 paragraph 1 of the Constitution. Justices Chigusa and Kawai stated in their concurring opinions that "[w]e understand that a half century from the enactment has changed the circumstances of illegitimate children and a position exists which doubts the rationality of the provision from the viewpoint of respecting the rights of children. However, it is more appropriate to solve the problem by amending the law in the legislature 'than to decide it null and void'" Justices Onishi and Sonobe also stated in their concurring opinions that "[l]ooking at the provision itself, it is fair to say that its rationale in relation to its legislative intent has come to be doubtful to a certain degree." But they only mean that, "although it may be appropriate to consider its amendment as a legislative policy, we cannot decide that the provision is extraordinarily unreasonable in relation to its legislative intent." These statements show that nine justices, that is, more than half of the fifteen justices on the Supreme Court, admitted the irrationality of the provision. It is clear that the existence of the Supreme Court decision is not an obstacle to amending the provision.


(2) Discrimination against Children Born Out of Wedlock in a Birth Registration Forms and Family Registers


In the family register system in Japan, children born out of wedlock are identified as such on the birth registration form and family register. This system leads to all the discrimination against children born out of wedlock which occurs. The government stated in its Fourth Periodic Report that, "[t]he Distinction (sic) between legitimate and illegitimate children in the family register is... reasonably based on distinctions under the Civil Code." (paragraph 201) However, no reasons exist in the system because the distinction under the Civil Code itself is not consistent with the Covenant. In Japan, copies of the family register are often required to be submitted on socially important transitions, such as an application for employment. Consequently, copies of the family register, which easily reveal on its face that persons were born out of wedlock, thus lead to the discrimination against such persons in the society. It is clear, therefore, that the distinction with regard to legitimacy in the birth registration form and the family register is clearly in violation of article 26 of the Covenant and its requirement should be amended immediately.


Section 2: The Right to Acquire Nationality (Article 24 of the Covenant)

The government should take the following measures so that children born within the territory of Japan or born to a Japanese parent may enjoy the right to be registered immediately after birth and the right to acquire a nationality in accordance with article 24 paragraphs 1 and 2 of the Covenant. (1) With respect to article 2(1) of the Nationality Law, the government should change the current practice under which a child born out of wedlock cannot acquire Japanese nationality unless his or her father acknowledges the child before its birth. (2) With respect to article 2(3) of the Nationality Law, whose purpose is to prevent children from being stateless, the government should change its current strict practice of often not applying this provision to children born within the territory of Japan. (3) With respect to children born to a Japanese parent outside of Japan, the government should amend article 12 of the Nationality Law, which prescribes that such children automatically lose their Japanese nationality unless a reservation of Japanese nationality is filed within three month after birth.


B. Subjects of Concern and Recommendations of the Human Rights Committee


During the consideration of the Third Periodic Report of the Government of Japan the problems of stateless children and discrimination against children born out of wedlock in their acquisition of Japanese nationality were discussed. The Committee stated that, "[t]he Committee also recommends that the Japanese legislation concerning children born out of wedlock be amended and that discriminatory provisions contained therein be removed to bring it into line with the provisions of articles 2, 24 and 26 of the Covenant." (Comment, paragraph 17)


C. The Government's Response its Fourth Periodic Report (paragraph 194)


The government has taken no measures to solve these problems since the consideration of the Third Periodic Report. In its Fourth Periodic Report the government pointed out that the Nationality Law addresses the prevention of statelessness and that a child who was born in Japan and has had his or her domicile in Japan for more than three years may acquire Japanese nationality very easily through naturalization (paragraph 194). The provision of the Nationality Law to prevent statelessness has little effect, however, because of its rigid application by the government. Naturalization does not ensure the right to acquire nationality as provided for by the Covenant because naturalization is approved by the discretion of Justice Minister only after a long period of statelessness for a child.


D. Position of the JFBA (1) Current Situation of Children in Japan Who Are Unregistered or Without Nationalitiy


Even according to governmental statistics, the number of foreigners overstaying visas (so-called "illegal aliens") has increased to about 300,000. They are often unmarried females and, when they give birth to children in Japan, many do not submit notification of the birth of their children fearing that to do so would reveal their status of being without visas. Some municipalities accept submissions of foreign registrations and notifications of the birth of their children born in Japan from such overstayers, but the number of such municipalities is still small. There are no statistical data on children without registration and such children are, in effect, left stateless and deprived of any rights to any form of medical, welfare and educational benefits.


Under these circumstances, the number of children officially recognized as stateless has been increasing. According to statistics from the Ministry of Justice, the number of children without nationality in Japan who are under the age of four was 79 at the end of 1988. By the end of 1997, the number had increased significantly to 933 (The Daily Yomiuri, August 26, 1998). This figure, however, represents only the number of registered children without nationality and there is no way of knowing how many unregistered children there are whose notification of birth has not been submitted.


(2) Discrimination against Children Born Out of Wedlock in the Acquisition of Nationality


Article 2(1) of the Nationality Law prescribes that a child can acquire nationality of Japan "when his/her father or mother is Japanese at the time he/she was born" under the principle of jus sanguinis. If a child is born to a Japanese father and a foreign mother and they are married, he or she acquires Japanese nationality automatically. However, if parents are not married, the child can acquire Japanese nationality only if his or her father submits to authorities an acknowledgment of paternity before the child's birth. If the father files the acknowledgement after the birth of the child, the government refuses to grant Japanese nationality to the child even if the father is clearly a Japanese national. It is manifest that children born out of wedlock are unreasonably discriminated against in the acquisition of nationality.


According to the Civil Code, the paternity of a child born out of wedlock is established by an acknowledgment by his or her father and this acknowledgment can be submitted either before or after the birth. Acknowledgment after birth takes effect retroactively to the time of the birth. However, the government denies the retroactive effect of acknowledgment under the Civil Code to children born out of wedlock with respect to the acquisition of Japanese nationality.


Over the last few years, at least 3 cases have been brought to court concerning the acquisition of nationality in which children born to Japanese fathers and acknowledged by those fathers were not granted Japanese nationality. One court approved Japanese nationality for a child because there was an unavoidable reason why the father could not submit the acknowledgment before birth (Tokyo High Court, Judgement of November 29, 1995). Another court decided that the interpretation of the Government was not against the principle of non-discrimination as provided in Article 14 paragraph 1 of the Constitution because the relationship between a father and a child born out of wedlock is thinner than that of a father and a child in wedlock and therefore it was rational to impose some restriction on the acquisition of nationality in such cases. (Osaka District Court, Judgement of June 28, 1996) This latter court asserted that the Covenant does not prohibit discrimination against children born out of wedlock in acquiring nationality, based on the incorrect understanding that, "article 24 of the Covenant and articles 2 and 7 of the Convention on the Rights of the Child aim to prevent stateless children and do not protect interests beyond article 14 of the [Japanese] Constitution."


In another case (known as the "Daisuke Case"), although the Japanese father submitted an acknowledgment before birth, a public official refused to accept it on the grounds that a birth certificate of the mother issued by her country was not attached. Even though the father resubmitted the acknowledgment accompanied by a proper birth certificate of the mother, the child was denied Japanese nationality because the resubmission occurred after the birth of the child. The child filed a lawsuit on this matter, and the child and the government eventually reached a settlement whereby the government approved the child's acquisition of Japanese nationality.


Although children in a few cases gain relief through court procedures, they are exceptional; the government maintains its posture of discriminating against children born out of wedlock to Japanese fathers in the acquisition of nationality. Moreover, one Japanese court decided that such treatment is not against the Constitution or the Covenant.


(3) Acquisition of Nationality by Children Whose Parents are Unknown


Article 2(3) of the Nationality Law prescribes that a child acquires Japanese nationality "when a child is born in Japan and both parents are either unknown or stateless." The Nationality Law in supplementary fashion adopted the jus soli principle and contains this article in order to prevent children born in Japan from being stateless. A child "whose parents are unknown" means an abandoned child. The government, however, applies this provision very rigidly such that even if a child is abandoned immediately after birth by his or her mother, the child cannot acquire Japanese nationality if there is even some information about the mother.


In the Andrew case a woman, claiming to be a Filipino without a passport, was hospitalized and gave a birth to a boy in February, 1991 and then disappeared immediately after the birth. The Philippine consul refused to render the child Philippine nationality because the woman's nationality was not known. The government of Japan, on the other hand, decided that this was not a case where the nationalities of both parents were unknown because his mother had called herself a Filipino and therefore did not grant the child Japanese nationality. Consequently he became stateless. The government insisted that a child bear the burden of proof for the requirement that both parents are unknown. This boy initiated legal proceedings requesting confirmation of his Japanese nationality and, in January, 1995, the Supreme Court finally decided that both parents of the boy were unknown and the boy had Japanese nationality. But in spite of this ruling the government continues to apply Article 2(3) of the Nationality Law very rigidly and the purpose of the provision, namely to prevent statelessness in children, has not been realized.


Although Japan has a specific law to prevent stateless children, the government consistently infringes on the right to acquire nationality provided by article 24 of the Covenant by applying the Japanese domestic law very rigidly and thereby rendering many children stateless.


(4) Acquisition of Nationality for a Child Born Outside of Japan


Article 12 of the Nationality Law of Japan stipulates that "[a] Japanese national who was born outside of Japan and who acquired a foreign nationality by birth shall lose their Japanese nationality retroactively to his or her birth unless his or her intention of reserving Japanese nationality is declared in accordance with the Family Registration Law of Japan." Article 104 of the Family Registration Law stipulates that this period for the submission of such a declaration to reserve must be within three months after the birth. Therefore, there are an increasing number of cases where a child who was born to a Japanese national in a foreign country, and who by birth was entitled to Japanese nationality, could not acquire Japanese nationality because the parents did not know about this requirement to submit a declaration to reserve Japanese nationality.


In particular, many cases are reported of Japanese-Filipino children in which women from South East Asian countries including the Philippines come to Japan to work, get pregnant by Japanese men, return to their home countries and then give birth. In these cases, most of the women do not know of the procedure described above and their children lose the opportunity to retain Japanese nationality. It is necessary to amend article 12 of the Nationality Law to ensure the opportunity for these children to choose their nationality themselves and not to be deprived of their opportunity to acquire Japanese nationality to which they are entitled. The provision is an unreasonable restriction for children born in foreign countries to acquire and retain Japanese nationality, and is thus discrimination inconsistent with article 24 paragraphs 1 and 2, and article 26 of the Covenant.


Section 3: The Problem of Child Abuse (Article 24 of the Covenant)

A. Conclusions and Recommendations


The following measures should be taken in order that "every child shall enjoy the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the state," as provided for in article 24 paragraph 1 of the Covenant. (1) Strict requirements should be imposed on the qualifications of caseworkers in charge of child abuse cases so that the specialized skills of such caseworkers can be ensured. (2) Amendment of the relevant laws is necessitated to enable judicial bodies to intervene effectively to prevent or remedy child abuse. For example, it should be legally permitted for a child or a representative of a child deemed suitable by the family court to demand redress from judicial bodies, and there should be greater flexibility with regards to the forfeiture of parental authority. (3) Specialized facilities and staff should be secured to provide counseling services and other necessary measures for the appropriate care of both abused children and their abusive parents and for the goal of reunification of the family. Cooperation in this matter between the concerned governmental bodies and NGOs should be promoted. (4) Corporal punishment in child welfare institutions should be clearly prohibited by law. (5) The "minimum standards for child welfare facilities," which provides standards for equipment and the number of staff should be revised. (6) A complaint system for human rights infringements in child welfare facilities should be established. (7) Specialized staff should be secured to provide appropriate care to children victimized by sexual crimes. (8) In order to prevent the sexual exploitation and sexual abuse of children committed outside of Japan, international cooperation with investigations of crimes committed outside of the territory of Japan should be reinforced and the relevant laws should be amended accordingly.


B. The Government's Response and its Fourth Periodic Report (paragraphs 195-197)


The government in its report mentions only the right to maintain personal relations for a child separated from one or both parents and problems of school rules and corporal punishment in schools. However, as mentioned below, child abuse and sexual exploitation have become serious problems in Japan. The Committee should consider the measures taken by the government on this matter and make the recommendations outlined above.


C. Position of the JFBA (1) Child Abuse and Sexual Exploitation


The incidence of child abuse has been increasing drastically since the Third Periodic Report was compiled, caused by the rise of consultations to Child Guidance Centers due to increased public concern about child abuse problems. Many more cases, however, are thought to be unreported. Moreover, the incidence of child abuse is expected to increase because the social context of child abuse, such as difficulty in child rearing, has proliferated. In fiscal year 1995, ninety children of elementary school age or younger were killed by their parents' abuse. Measures taken by the government are insufficient given that the social background which leads to cause child abuse was deteriorated. (a) In Japan, Child Guidance Centers are officially responsible at the frontline for child abuse problems and they have become quite active recently. Improvement in their effectiveness is, however, very difficult because their staff (caseworkers) and the chiefs of the centers are not required to have any special qualifications in child welfare. (b) The system of relief from child abuse is insufficient and does not work appropriately because eligibility for petitions seeking such relief is limited and forfeiture of parented authority is rarely granted. Though we had expected the system to be improved in the recent amendment of the Child Welfare Law, no direct improvement was made. The Ministry of Health and Welfare issued a notice directing the Child Guidance Centers to utilize the existing legal system vigorously. Major improvements cannot be expected, however, without the specialized training and certification of staff mentioned above in subsection (a). (c) It is necessary to provide counseling services for the appropriate care to both abused children and their abusive parents and for the reunification of the family. However, no measures to establish legal and training systems in order to promote such services have been taken. (d) Cooperation between the governmental bodies and NGOs is essential for prevention of child abuse and for providing remedies, protection and care. In the last 5 years, private networks organized by medical and child welfare staff and other citizens have been working vigorously. But the governmental bodies are still reluctant to cooperate with such private entities. (e) In order to promote public awareness and change the attitude of the government, it is necessary to change the misconceptions of parental authority and clarify in the Civil Code that parents cannot abusively dominate their children in the name of parental authority. The government, however, has taken no steps to do so.


In addition to above-mentioned child abuse by parents, incidents of abuse by the staff or superintendents of Child Welfare Facilities have also been reported. There are also problems of corporal punishment and inappropriate environment for life and study in Child Welfare Facilities for children deprived of their family environment. The JFBA proposed that: (i) prohibition of corporal punishment in child welfare facilities should be clearly provided for in the Child Welfare Law; (ii) the Minimum Standards for Child Welfare Facilities, which provides standards on environment for life and study, should be revised; and (iii) effective systems, such as complaints by children, should be established to deal with human rights infringements in the facilities. The government, however, has taken no actions in response to our proposal.


(2) Sexual Exploitation and Sexual Abuse


Even more serious are the problems of sexual exploitation and sexual abuse. (a) Sexual Abuse in Japan There are cases where adults force sexual acts on children by direct violence or threats. According to the White Paper on the Police in 1996, out of the crimes arising in 1995, 2,424 were cases where a minor was victimized through sexual assaults, while 513 minors were victims of crimes which violated the Prostitution Prevention Law. It is not rare that such victims end up being killed. Among these crimes, the assault committed by U.S. soldiers in Okinawa Prefecture became a major social issue together with the related problems of these bases.


It is often reported by the mass media that those who are in a position to protect children, e.g., parents, teachers, officials at institutions, etc., have taken advantage of their positions and forced sexual acts on children. In such cases, these acts are often repeated and thus the psychological damage inflicted on victimized children is very serious.


Furthermore, cases has been increasing drastically where adult men have sexual relationships with girls, such as junior high or senior high school students, money changing hands (so-called enjo kousai or "supported dating").


Despite these various situations, no appropriate aftercare by medical, mental health, and educational specialists is provided to children victimized by sexual abuses other than the investigation and protection of the police.


(b) Sexual Abuse and Sexual Exploitation of Children by Japanese in Foreign Countries


Recently, many cases have been reported where Japanese used their money to impose sexual relationships or indecent conduct on children resident in Southeast Asian countries and these men were subsequently arrested.


In its report to the Committee on the Rights of the Child, the government referred to the provisions of the Travel Agency Law intended to "prevent sex tourism by Japanese tourists in foreign countries," as well as immigration and emigration controls and the government's cooperation in such investigations. Despite the existence of these provisions, however, the government has shown reluctance to handle these cases.


The Criminal Code of Japan provides that sexual conduct with children under 13 years of age are subject to punishment as sexual assault or rape, irrespective of the presence of violence or threats or irrespective of the involvement of money. It also stipulates that such crimes committed by Japanese nationals outside of Japanese territory are punishable in the same way as those committed in Japan. Accordingly, in August, 1996, a twelve-year-old girl in the Philippines filed a complaint with the Kanagawa Prefectural Police Headquarters against a Japanese man for sexual assault. In a second case, in November, 1996, a twelve-year-old girl in Thailand filed a complaint with the Chiba Prefectural Police Headquarters for rape.


(3) Conclusion


Child abuse, sexual abuse and the sexual exploitation of children are infringements of rights provided for in article 24 paragraph 1 of the Covenant. The Committee should consider measures taken by the government in this regard and make detailed recommendations as outlined above.


1 The court did not recognize this argument of the government. There have been other examples as well, though scattered, of active recognition by Japanese courts of rights guaranteed by the Covenant. Specifically: A. A decision that overturned a ruling imposing translation costs on a criminal defendant as a violation of article 14 paragraph 3(f) of the Covenant. (Tokyo High Court, Judgement of February 3, 1993,in Gaikokujin hanzai saiban hanreishu, 1994, p. 55) B. Decision Concerning the Constitutionality of Inheritance Discrimination Against Illegitimate Children


This decision cited a violation of the Covenant in addition to finding a violation of Article 14 of the Japanese Constitution. The court stated that, "[i]n consideration of the spirit of article 24 paragraph 1 of the Covenant, a solution to the problem must be found that abides by both the concepts of protection of family relationships on the basis of legal marriage and that of the individual dignity of the illegitimate children." (Tokyo high Court, Judgement of June 23, 1993, Hanreijiho No. 1465, p. 55) C. Decision Granting Damage Compensation in Recognition of the Illegality of an Arrest for Refusal to Submit to Fingerprinting


Citing insufficient necessity for forcing a long-term resident alien to submit to fingerprinting, the court ruled that, "[t]here is an undeniable possibility of a violation of articles 17 and 26 of the Covenant (equality before the law, etc.), the Constitution of Japan Articles 13 (right to privacy) and 14 (equality before the law)." On the basis of this reasoning, the court awarded a part of the compensation demanded. (Osaka High Court, Judgement of October 28, 1994, Hanreijiho No. 1513, p. 71) In this case, the decision referred to the Vienna Convention on the Law of Treaties, the general comments and views of the Committee and decisions by the European Court of Human Rights in its interpretation of the Covenant, giving a specific interpretation of the Covenant that recognized it as a distinct instrument in itself, rather than a document that merely repeats basically the same content as the Japanese Constitution. D. Decision Awarding Damage Compensation in Recognition of a Violation of the Covenant Regarding Restrictions on Visits Between a Prisoner and the Prisoner's Legal Counsel


This decision found the requirement of a prison officer's attending meetings between the attorney and the prisoner and the limitation of the visits to thirty minutes to be in violation of the Prison Law, the Prison Law Enforcement Rules and article 14 paragraph 1 of the Covenant. (Takamatsu High Court, Judgement of November 26, 1997) E. A decision found a problem in regard to the exercise of the government's discretionary power when it determined that the expropriation of a piece of real estate under article 20 paragraph 3 of the Compulsory Purchase of Land Law was not in conflict with the right of indigenous people (in this case, Ainu) to enjoy their own culture, as guaranteed under article 27 of the Covenant. (Sapporo District Court, Judgement of March 27, 1997) 2 During the Committee's consideration of the Third Periodic Report the Japanese delegation responded as follows to the question of why it considered the independence of the judiciary as a reason for not ratifying. For example, [we must consider] how best to deal with the emergence of differences of opinion in respect of specific Japanese legal cases, particularly after judgment has been passed, or whether the presentation of our report based on the Protocol in respect of a current case, or one for which retrial has been requested, or to constitute the breach of the independence of the Judicature, or whether there would be abuse of the procedure for dealing with the communications from individuals. (From the record of the 1277th Meeting, response No. 8) 3 During the examination of the Third Periodic Report, Committee members tried to persuade the Japanese government as follows: ... most of the countries, have acceded to either regional or universal optional procedure for the protection of human rights whereby they allow communication or individual positions. No problem was created. Normally, these mechanisms take over when the local remedies have exhausted, provided that are available not for long. Therefore I do not think that this [that it might affect the judiciary] is not justification. (Mr. Mavrommatis, Cyprus; 1277th Meeting)


I do not see the shortcomings and negative impact on the judicial system unless the problem is linked to the problem of remedies, which I referred to earlier, because, in that case, certainly the one certain communication could be sent claiming that the remedies are unreasonably prolonged in the country, and that would affect the judicial system. But that would lead to an improvement of the judicial system. It would probably point out that there are problems, and that amendments in the legislation are needed. I say that with sympathy, because in my country we have, in many respects, the problem of the length of the judicial procedures. And we are trying as far as possible to speed them up, but it is not easy, and the support of international bodies as the Human Rights Committee may be good in this respect. (Mr. Pocar, Italy; 1277th Meeting)


Many states have taken the step of ratifying the Optional Protocol and in no way should it be seen to undermine the independence of the standing of the judiciary in the state concerned. (Ms. Evatt, Australia; 1277th Meeting) 4 Following is a summary of that report.


First, it is completely undisputed that the views of the Human Rights Committee do not invalidate conclusions reached by Japan's courts, nor do they have any direct, legal binding force on domestic courts. Therefore, ratification of the Protocol does not amount to establishment of a higher court or extraordinary tribunal, as prohibited by the Constitution (Article 76 paragraphs 1 and 2).


Secondly, any differences in conclusions that arise between domestic courts and the Human Rights Committee would not in any way constitute an undue infringement of the independence of the judiciary. It can naturally be presumed that judgements of the Human Rights Committee formed in accordance with international standards that differ from those of domestic courts will be handed down in accordance with the system of individual communications. It is perfectly natural in democratic societies for organizations or individuals to express their own opinions concerning judgements made in their own countries or in foreign countries. To do so does not constitute a violation of the independence of the judiciary. The International Labor Organization has long issued opinions and recommendations about individual cases. It issues views and recommendations in accordance with its charter about interpretations of ILO Convention n. 87 and ILO Convention n. 98, through its Committee of Experts on the Application of Conventions and Recommendations, Committee on Freedom of Association, etc. These views and recommendations are taken by Japanese courts as "views worthy of serious consideration concerning the current ILO interpretations of these conventions." (Oita District Court, Judgement of January 19, 1993, Hanrei Jiho No. 1457, pp. 36, 49.) This practice is not considered to be a violation of judicial independence. Thirdly, the concept of independence of the judiciary according to the Japanese Constitution was designed as a system for protecting the balance of powers in relation to the executive and legislative branches of government. If a State party to the Protocol has an obligation under international law to abide by the views of the Committee, the independence of the judiciary still remains intact, unless the executive or legislative branches demand that the judiciary make a change in an individual decision on the basis the Committee's view.


5 It need hardly be repeated that the Committee acting under the First Optional Protocol does not consider communications until all possible domestic remedies have been exhausted, the only exception being where the application of the remedies is unreasonably prolonged. (Article 5 paragraph 2(b)) The Protocol is applied by the Committee according to this principle, which is in accord with the principle in international law requiring exhaustion of domestic remedies. If the Japanese government claims that there are problems with such provisions of the Protocol or with the way the Committee deals with individual communications, it should state this position clearly to the people of Japan and at the venue of the Committee's periodic examinations of its reports. Instead, it has endlessly repeated a stock phrase about "the relationship with the independence of the judiciary." It has offered no specific arguments. Clearly the government is not making efforts to solve the problem. Its claim can be evaluated as nothing more than an excuse. 6 Written questionnaire (Shitsumon Shuisho) submitted by a member of the House of Councilors, Shoji Motooka, dated May 7, 1998, to the Prime Minister, concerning ratification of the First Optional Protocol to the Covenant. Accordingly, on June 9, 1998, the Prime Minister sent a letter to the President of the House of Councilors. This is the answer to that questionnaire. 7 The man brought suit in 1986 seeking the right to visit with his one-year-old daughter, who lived apart from him. In 1987 he was granted access to his daughter once a week, as a provisional measure. This measure, however, was suspended in 1990, but the Spanish court still did not hand down a judicial decision concerning parental rights or visitation rights, nor had it done so by 1992 after more than five years had elapsed since the filing of the suit, when the Committee adopted a view recognizing admissibility. The man had appealed the suspension of the temporary visiting right, but this appeal was rejected in 1992 on the grounds that the suit concerning parental and visitation rights was pending. 8 This was a case in which communications were made in 1974 and 1976 by a man concerning his tax assessment. The claim was judged to have not fulfilled the Protocol's conditions for admissibility and to be devoid of substantiation. The Committee concluded that the claim constituted an abuse of the right of submission under article 3 of the Optional Protocol (incompatibility with the provisions of the Covenant). 9 The Committee on the Rights of the Child, sessions 465-467 of May 27 and 28, 1998 (CRC/C/SR.465-467) examined the first periodic report of the Japanese government on the basis of a previously prepared list of questions. The Committee adopted an all-inclusive opinion, consisting of 48 paragraphs. In paragraph 13 of section C, "Principal Subjects of Concern," it was noted that: The Committee is concerned that the general principles of non-discrimination (article 2), the best interests of the child (article 3) and respect for the views of the child (article 12), are not being fully integrated into the legislative policies and programmes relevant to children, in particular in relation to children from vulnerable categories such as those belonging to national and ethnic minorities, especially Ainu and Koreans, children with disabilities, children in institutions or deprived of liberty and children born out of wedlock. The Committee is particularly concerned about unequal access by children of Korean origin to institutions of higher education and the difficulties encountered by children in general in exercising their right to participate (article 12) in all parts of society, especially in the school system.


10 In section D, "Suggestions and Recommendations," paragraph 35, the Committee noted: It is the Committee's view that further efforts must be undertaken to ensure that the general principles of the Convention, in particular the general principles of non-discrimination (article 2), the best interests of the child (article 3) and respect for the views of the child (article 12), not only guide policy discussions and decision-making, but also are appropriately reflected in any legal revision, judicial and administrative decisions, and in the development and implementation of all projects and programmes which have an impact on children. In particular, legislative measures should be introduced to correct existing discrimination against children born out of wedlock. The Committee also recommends that discriminatory treatment of minority children, including Korean Ainu children, be fully investigated and eliminated whenever and wherever it occurs. Furthermore, the Committee recommends the same minimum age for marriage of boys and girls. 11 The report 'Human Rights Violations in Lock-up Rooms,' compiled by the Immigration Review Task Force, an NGO, introduced such cases as: 1) a Chinese woman who was treated violently and injured in the face during interrogation by immigration officials in the Tokyo Immigration Building No. 2. (the immigration bureau admitted this in an action for damages filed by the woman and agreed to settle the case); 2) an Iranian man who was punched and kicked by several officials at the same Tokyo Immigration Building No. 2 and suffered a broken lumbar and other injuries; and 3) a Korean man who was struck by several officials of the Osaka Immigration and injured in the face and ears. According to interviews with former woman detainees conducted by the Immigration Review Task Force in the Philippines, Thailand and Peru with regard to sexual harassment by immigration officials ('Testimony of Deported Foreigners '95-'97', issued in December 1997), a number of actions by male Immigration officials, such as peeping into the shower room and touching of detainees' hair, breasts and buttocks, were reported. There were several complaints that detainees were raped.


12 According to detainees, those who are not obedient to immigration officials or who do not follow the rules are put in the isolation room or handcuffed for punitive purposes (interviews by the Immigration Review Task Force). In one case that went to trial, three detainees were put in one isolation room, with one of them handcuffed behind his back. Since the handcuffs were not removed even during meals, the restrained detainee had to eat like a dog and ask for the help of his follow inmates in order to use the toilet. They were confined in the isolation room in this condition for as long as 15 days.


13 A Peruvian man detained in the West Japan Immigration Control Center claimed that he asked immigration officials to allow him to call his family in Peru, but the request was denied for a long period of time. When he finally received permission, the contents of his conversation were restricted. He was accompanied by three immigration officials, and was told "[d]o not tell them what is going on in the detention center. Do not tell them that you are sick. Just tell them what we tell you to say now. That is, you want them to buy a ticket to return home, the flight should be one that leaves Japan during the day, and the flight should leave from Kansai Airport." (interviews by the Immigration Review Task Force)


14 For example, in the detention center of the Tokyo Immigration Control Bureau Building No. 2, while there are approximately 400 detainees, no doctors or nurses are on site. According to detainees, even if they complain about poor mental or physical health, they are not easily allowed to be seen by a doctor. The immigration officials on site are essentially making medical diagnoses in place of a doctor. While the East Japan Immigration Control Center has long-term detainees, as described above, no regular physical examinations are offered. 15 On March 27, 1997, in a suit seeking rescission of a decision to seize land designated for the construction of the Nibutani dam, the Sapporo District Court recognized that the Ainu were an indigenous people, having the 'right to enjoy their own culture' based on article 27 of the Covenant and determined that the approval of the dam construction project by the Minister of Construction and the decision to seize the land based on said approval were illegal. However, because construction of the main part of the dam had already been completed, the court dismissed the request for rescission by the plaintiffs (two Ainus) on the ground that destruction of the dam would not be in the 'public interest.'


16 (Example One)


On February 5, 1997 in a case in which a corporate employee had been indicted for disciplining the two-year-old son of his common-law wife so severely that he had died, the Himeji Branch of the Kobe District Court ruled in favor of the defendant's claim that the police had destroyed the letters of his mother and other persons to him in which he was urged to secure defense counsel. The court, finding that the police violated his right to secure defense counsel and to communicate to the outside world, ruled the formal statement of the defendant inadmissible and on March 19 of the same year found him not guilty. (Yomiuri Shimbun Newspaper, March 19, 1997) (Example Two)


On September 18, 1997 the Hiroshima District Court ruled in a case involving a violation of the anti-narcotics law in favor of the defendant's claim that his confession had been induced by the police promise that if the suspect would admit his guilt, the police would ensure that the suspect would not be indicted. The District Court ruled the confession inadmissible and found the suspect not guilty. (Yomiuri Shimbun Newspaper, September 19, 1997)


17 (Example One)


On February 19, 1997 the Hachioji Branch of the Tokyo District Court found a defendant who had been indicted for the murder of a worker in an eating place not guilty on the grounds that, "the confession underwent changes too often; the possibility of its being induced during the investigation cannot be ruled out; and the confession lacked reliability." According to the defendant and the defense counsel, the defendant was investigated as a potential witness by the Musashino Police from the very night when the murder occurred and furthermore, that he was forced by authorities to stay at a hotel and to undergo about sixty hours of interrogation without sleep. Consequently, extremely tired from sleep deprivation and yearning for relief from this torturous treatment, he made a confession. (Sankei Shimbun Newspaper and others, February 20, 1997) (Example Two)


On July 30, 1997 the Hiroshima District Court found a defendant, indicted for the murder of a fellow sailor and the withdrawal of money from the dead man's bank account, not guilty on two grounds: that the police tried to induce the confession in a substitute prison by lying to the suspect to the effect that there was an eyewitness; and that the disclosure in the confession of information supposedly known only to the perpetrator could be the product of police inducement; and that consequently there is a serious doubt concerning the reliability of the confession. (Asahi Shimbun Newspaper, July 31, 1997) (Example Three)


In July, 1997 the Kohu District Court handed down a verdict of non-guilty in a case where a youth had been charged with participating in an illegal motorcycle ride. Although the youth had not in any way participated in the ride, he had made a false confession because the police strongly urged him to do so, saying falsely that a confession would not be disadvantageous to him. (account supplied by the defense attorney)


18 (Example One)


On September 24, 1997 in Kagoshima District Court a person who had been found guilty as an accomplice to murder and was serving time for that crime said for the first time during a hearing on his petition for a new trial that when he was told by the police that "you did it" he despaired and made a false confession. He also stated that he gave false testimony in which he admitted the facts of the indictment. (Nishinihon Shimbun Newspaper, September 25, 1997) (Example Two) On November 10, 1997 a twenty-five year old Filippino woman returned home to find her housemate dead. She was taken to the Matsudo Police Department and interrogated day after day from morning to midnight (more than twelve hours a day), and forced to stay for nine nights either at a hospital under police guard or at a hotel or at a police dormitory. Although she requested access to an interpreter, defense counsel and the Philippine Embassy, the police ignored her requests; restrained her without arrest; continued to interrogate her daily for long periods of time; and forced her to confess. On November 19, exhausted and despairing, she signed a confession. The police promptly secured an arrest warrant and formally arrested her. The defense attorney lodged an appeal against the decision to prolong her detention. The District Court, although recognizing these facts as established, nevertheless rejected the appeal stating that "the police method of investigation is far from being appropriate as a method of investigating a voluntary witness, but still cannot be said to go beyond the limit of permissible voluntary investigation." (based on the account of the defense attorney)


19 (Example One)


On September 24, 1997 in a case in which a corporate employee sued Kanagawa Prefecture for being violently assaulted by an officer of the Kanagawa Prefectural Police in the course of an investigation of a traffic accident, the Tokyo High Court ordered the prefecture to pay the man 700,000 yen in compensation. The High Court did so after accepting the conclusion of a doctor's examination that a police officer said "Stop gibbering, you're going to get it!" and "This move is a killer!" etc. and then squeezed the man's neck, threw him to the floor and rendered him unconscious. (Asahi Shimbun Newspaper, September 25, 1997) (Example Two)


On September 11,1997 a lieutenant of an organized crime gang fled from the jail in Ichinomiya branch of Aichi Prefectural Police. It was revealed that a jail warder had helped the man escape by opening a door from the outside. The escapee claimed afterward in the court hearing held in November that he had fled to make public the fact that he had been beaten on the chest during interrogation by the police. (Yomiuri Shimbun Newspaper, September 23, 1997; Chunichi Shimbun Newspaper, November 6, 1997) (Example Three)


On October 31, 1997 a defendant who had been indicted in the Sarin Gas Subway Attack testified in the court that he had been subjected to violent treatment at the hands of the police. He claimed that an officer in Tsukiji Branch of Metropolitan Police had yelled "Murderer!" and "Keep standing there all night!" etc.; that he had been hit in the face; and his teeth were broken in the assault. (Asahi Shimbun Newspaper, October 31, 1997) (Example Four)


A, the suspect, was a customer of Yamaichi Securities who planned to attack the company's lawyer because of what he considered the company 's unjust and cold treatment of him. In fact, A stabbed the lawyer's wife to death, was arrested and indicted for murder in October, 1997. When a state appointed counsel consulted with A in the central office of the Metropolitan Police on December 5, 1997, A made the following assertions. Although the investigation of the case in question was over and A had been indicted on November 7, A was still being interrogated daily from nine in the morning to midnight and was being strongly pressured to confess in relation to a different case in which the head of the customer consulting office of Yamaichi Securities had been stabbed to death in August of the same year. The police repeatedly said to A, "You did this, too!"


Every night after 10:00 p.m. when no-one was in the surrounding interrogation rooms, three investigators including a top-level judo master, did the following: hit A hard on the side of the head as he sat in the chair; kicked him hard in the thigh; made him fall from his chair to the floor, grabbed him by the neck and shook him continuously for tens of minutes; jabbed him in the pit of the stomach with their hands; abused him verbally at the close range so loudly that his eardrums might rupture, cursing and swearing such as "Confess! You are lower than an animal. Die by biting your own tongue!" A kept silent because he had had nothing to do with this second case. The investigators, even though they had no incriminating evidence against A, continued to assault him violently with the sole purpose of making him confess.


About six days before the conversation with his court appointed attorney, A sustained a neck injury from the violence of the three investigators and he requested medical consultation with a doctor. However, the investigator who is a judo master merely provided a wet compress and the suspect was not checked by a doctor. Because jail warders and other detainees complained that they could not sleep at night because of the enormous noise made by these threats and assaults, the place of interrogation was changed to the back room on the second floor. Still the investigators threatened him, saying "Although you were indicted for the case in question, we will keep you in the substitute prison and not send you to the detention center and continue to interrogate you until you confess in this other case." Although A managed to endure, he was close to his limit.


The defense counsel was surprised by A's claims that the police had detained him for one month after the indictment for the main case and continued to pressure by threats and violence to confess in a different case without any arrest warrant or detention order for it. The counsel met with the investigators in charge and told them to stop the illegal interrogation, which violates the Code of Criminal Procedure. They admitted that they conducted severe, daily interrogations but denied any violent behavior or threats, saying, "That could never happen." They also asserted their intention to persuade A to cooperate and to continue the "voluntary" interrogation. When the counsel said to the officer in charge of detention that because the police functions of investigation and detention are rigorously separated, A must not be taken from his jail cell to an interrogation room for an illegal interrogation, the officer was silent.


20 (Example)


On May 12, 1997 the Fukuoka District Court in a case involving the violation of the anti-narcotics law found that even though the defendant had requested to the police to call in a defense counsel and the police neglected his request so that more than sixty hours elapsed before defense counsel was selected. The court took into consideration in its sentencing the illegal violation by the police of the right to counsel and,. responding to a prosecutor's request for a sentence of incarceration for two and one-half years sentenced him to one year and eight months of imprisonment with hard labor. (Nishinihon Shimbun Newspaper, May 13, 1997)


21 (Example One)


In March, 1997 a Chinese woman who had been arrested for illegal overstay by Ueno Branch of Tokyo Metropolitan Police experienced vomiting and bleeding; she was found to be seven weeks pregnant. Nevertheless, because of the rigidity of the institution's schedule meals at any time other than the scheduled time were forbidden and because her report of her ill health was not taken seriously in both the police and the detention center, she miscarried. She will file a civil suit for damages against the state of Japan. The police maintain that because the police had no obligation to inform her of the bar association's duty attorney system (whereby a detainee after being arrested can consult with the attorney on duty without charge), they did not tell her about this possibility. (Tokyo Shimbun Newspaper and others, May 1, 1997 and June 21, 1997) (Example Two)


On November 14, 1997 the Japanese Supreme Court affirmed the rulings below in a case in which a Nagano Prefecture woman who had been arrested for driving without a license had been subjected without a warrant to a strip search and body cavity search by the police. The Court let stand the first and second rulings to the effect that the body search was illegal and the prefecture was ordered to pay the woman 350,000 yen. (Asahi Shimbun Newspaper, November 14, 1997) (cf. the previous JFBA counter report at pages 321-324.) (Example Three)


On December 23, 1997 the Kanuma Branch of the Tochigi Prefectural Police arrested a police officer who, using a key to open a cell door at night, had entered a woman's cell and physically molested her (touching of breasts, etc.). The officer was fired as a disciplinary measure on the same day as his arrest. (Asahi Shimbun Newspaper, December 24, 1997) 22 The recommendations of the IBA are as follows: 1. Abolish daiyo kangoku by amending the Prison Law and phasing out of the facilities. (A suitable action plan is to be found in the JFBA Proposed Bill, referred to above). 2. If daiyo kangoku are to be retained in their present form: (1) true and effective separation of functions in their administration must be made. This can only be done by handing over their administration to the Corrections Bureau of the Ministry of Justice. (2) Daiyo kangoku should be supervised by an independent agency to which detainees have a right to complain. (3) The standards of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment must be implemented immediately. 3. Whether or not daiyo kangoku are to be abolished or retained in their present form: (1) bail should be made available at the pre-indictment stage. (2) Full effect must be given to the right to silence. If a suspect asserts this right, then the product of further questioning should be inadmissible as evidence, unless a subsequent waiver of the right is independently verified. (3) Full effect must be given to the right to counsel. State-appointed counsel should be available at the pre-indictment stage. Until then, it should be mandatory for investigators to inform a suspect of the availability of an attorney through the duty lawyer system and to contact such a body if requested to do so by a suspect. If this course is not followed, the product of any questioning should be inadmissible as evidence. (4) Tighter requirements need to be laid down for the test of the voluntariness of confessions. (5) All dealings with detainees must be recorded in a form that may be routinely produced in court. (6) There should be verbatim recordings of interrogations of suspects. (7) The test for determining whether or not to indict should be relaxed. (It should be noted that the current test is clearly capable of working an injustice against society, in that some suspects whose guilt or innocence should be tried in court are now without a doubt not being prosecuted.) (8) Judges should be more intensively trained in the practical application of the concept of the independence of the judiciary. 4. Japan should ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 23 Articles 34 and 37 paragraph 3 of the Japanese Constitution guarantee to a suspect in custody the assistance of a lawyer as a channel to the outside world to protect the right to communicate with the outside, and as support for the right to a fair trial respectively. Nevertheless, the Japanese government interprets the Constitution in such a way that the institution of state-appointed counsel is understood to be based on the article 37 paragraph 3 alone and, because the requirement of a fair trial starts to operate only from the moment of indictment, the holder of a right under article 37 paragraph 3 is understood, in the government's view, to be limited to criminal defendants. (In Japan the tradition is to refer to the accused as a "suspect" before indictment and a "defendant" after indictment.) Accordingly, the government's position is that the institution of state-appointed counsel before indictment is not a constitutional requirement, but rather merely a matter of legislative policy.


24 cf., Foti and Others v Italy (European Court of Human Rights, December 10,1982, Series A 56), which adopted a "substantial effect" test for the significance of a criminal charge. 25 At the formal meeting concerning the duty attorney program (toban bengoshi) between the JFBA and the Ministry of Justice (the fourth meeting held on September 25, 1995), the Ministry of Justice asserted that the proper role of defense counsel is to protect the legitimate interests of a suspect or a defendant by furthering the pursuit of the truth. 26 The principle of the secrecy of investigations has no explicit legal basis and amounts to no more than a custom, which reflects the view of investigative authorities that the disclosure of the materials related to an investigation leads to the destruction of incriminating evidence against a suspect. 27 According to the judicial statistics for 1996, the number of the quasi-complaints on the basis of article 429 of the Code of Criminal Procedure was 1,699; and the number of appeals which led to a change in or withdrawal of the detention warrant was 320. Because this number includes cases other than quasi-complaints against detention, the real number should be much smaller than 320. The quasi-complaint does not function as a remedy for illegal detention.


28 Research into the legislative process behind the Code of Criminal Procedure of Japan revealed the following fact. Initially the Occupation forces, known in Japan as "GHQ," drafted a bill that did not distinguish between suspects and defendants and drafted a bill in English to the effect that bail can be granted to the accused. The Japanese drafters of the bill misinterpreted the meaning of the term "the accused" as " the defendant" in accordance with the tradition of making a distinction between a suspect (before indictment) and a defendant (after indictment). As a result, the Code of Criminal Procedure has been interpreted only to allow bail for a defendant (before indictment).


29 In the case of foreign suspects, the rate of the detention is extremely high and the rate of the bail is extremely low. In other words, it has become the general rule that foreign persons awaiting trial shall be detained in custody as against article 9 paragraph 4 of the Covenant. 30 Committee member Higgins said "[o]ne has not to lose sight of the fact that the suspect is not entitled to have his counsel with him during the interrogation." Committee member Lallah, criticizing the detention system in Japan, commented "[y]our system seems to put the burden always on the accused, ... It is for the prosecution to justify the need before a court of law to keep a person beyond what would be prompt. Here, it is the other way round." Committee member Evatt said "[i]t is absolutely essential to ensure that there are safeguards, ... that effective measures should be taken to prevent the coerced confession of suspect in detention, and to protect their human rights." As a concrete measure she proposed the presence of counsel during interrogation and the use of video tape to record interrogations. Furthermore, when the Japanese government in its supplementary explanation defended itself by claiming that the investigation and the detention are strictly separated in Japan, Mrs. Higgins pointed out: If you really want to have a system that is separate in reality and not simply on paper, it seems to me that it has to include the following: first, counsel available throughout interrogation; secondly, records available to the accused and to counsel as to the timing of interrogations and everything that has occurred; third, that there be time limits for the interrogation.


31 cf., Daniel H. Foote, "The Benevolent Paternalism of Japanese Criminal Justice" 80 California Law Review 317, at 337 n.


32 However, the case law indicates that interrogations which last after midnight or all night must be avoided as much as possible, but are not illegal. No cause for suspicion that the confession was per se involuntary was found in the following cases: questioning which lasted all night for a total of 22 hours (Supreme Court. Judgement of July 4, 1989); and morning to midnight interrogations more than once (Tokyo District Court, Judgment of September 30, 1996). 33 Hiroshi Ozu, "Towards an Active Discussion of The Proper Way of Defending a Criminal Suspect" (in Japanese) 55 Legal Aid Journal 6ff (January, 1997). Mr. Ozu is the bureau chief of the Criminal Bureau of the Ministry of Justice.


34 The Ministry of Justice announced its vision of the ideal defense counsel. According to it, a defense counsel, even though an adversary of the prosecution in the legal system, must as a member of the legal profession pursue the substantive truth in a case; he must not be a mere "hired gun." Accordingly, a defense lawyer must not be permitted to advise a client to refuse to be questioned or to refuse to sign an investigator's record of an oral statement because such advice would interfere with the pursuit of substantive truth. However, the choice of whether or not to exercise the right to silence is a matter of a suspect's autonomy. A suspect must be permitted to decide freely and voluntarily whether or not to refuse questioning by exercising the right to silence or to demand the presence of defense counsel by refusing to sign an investigator's record of his oral statements. These choices are exercises of a suspect's fundamental, legal rights. A defense counsel is not obligated in the investigative phase to "pursue the substantive truth" without regard for his client's wishes. In cases where a miscarriage of justice has occurred, a defense counsel is forced to exert himself or herself to discover the substantive truth of the case, but as a general rule the line of legal defense adopted is determined according to the nature of the particular case. Consequently, it is impossible to decide in blanket fashion "the proper behavior of a defense counsel." If the state succeeds in regulating the activities of defense lawyers more than is presently allowed by law, defense counsels will lose their raisons d'etre as the protectors of suspects' human rights. 35 Committee member Mavrommatis said: Japan is probably the only country that is regulating by law, or through subsidiary legislation, the right to arrange the visits of counsel. Yes, there are countries which do use every trick by moving around prisoners to obstruct counsel from visiting them. But nobody admits it in writing in the law that you have to apply for permission. Maybe, it's only 3%, it's 3 %, too much. We find the fact that the right of counsel to see somebody, his client, during all reasonable hours in one of the ways to reducing incidence of torture or undue treatment. Committee member Aguilar added: In Daiyo-kangoku, the prosecutors and the police interrogate the accused in a totally free way. Whereas the defense lawyers cannot. The police and the prosecutors work together, so it's logical that the prosecutor uses the person being remanded in custody by the police. He is not going to act in the same way with regard to the accused. Why? Because they form one party in the dispute, the police and the prosecutor. And so, there is inequality between the parties here. One of the parties essentially has his rights diminished and the other party is the judge and the jury at the same time. 36 Although we cannot say there should be no restrictions to the right of a suspect to consult with defense counsel, restriction for dubious reasons, such as "the interrogation is in progress" and "an interrogation is scheduled," must not be permitted. Appropriate restrictions must be based on the limited reasons and procedures expressed by principle 18 paragraph 3 of the above UN Body of Principles. The legitimate restrictions are as follows: (a) They must be specified by law or lawful regulation. (b) The judicial or other authority must judge them to be indispensable for the maintenance of security and good order. (c) They must be exceptional. Restrictions must meet all three of these conditions.


Article 39 paragraph 3 of the Code of Criminal Procedure permits restriction of interviews by a prosecutor or a police officer. But "the judicial or other authority " in principle 18 paragraph 3 means "a judicial or other authority under the law whose status and tenure should afford the strongest possible guarantees of competence, impartiality and independence." (UN Body of Principles, Use of Terms "f") Such a definition manifestly excludes prosecutors and police officers. Furthermore, reasons such as "the needs of the investigation" or "the interrogation is in progress" or "an interrogation is scheduled" have nothing to do with the above-stated conditions (b) and (c). This conclusion is buttressed by the fact that a proposal for broader discretionary powers for authorities to restrict interviews for the sake of the smooth progress of investigations was raised during the drafting of the UN Principles and rejected, relegated to the status of a minority opinion. 37 On the day of the execution his mother and sister-in-law went by chance to the prison to see him. A prison guard said to them, "We are very busy because it is the end of the year. So please come back in the afternoon." When they came back in the afternoon, they were told that the execution had been carried out that morning. The precise time of the execution was not revealed. According to the family, Mr. Kimura had requested the prior announcement of the execution date to the family, but that request was ignored. He scribbled his will to the family during a few minutes before the execution. (Hiroko Hikata, I Want to Tell 54 friends: Annals of the Elimination of Capital Punishment '96 (in Japanese))


38 Prior announcement of the execution date was not made to the family. Because the inmate did not have a surety, no announcement was made to anyone at all. The corpse was cremated by prison officers. Only because the inmate's former defense counsel learned by chance of the execution from a newspaper article and claimed the remains, was the inmate saved from being buried in a cemetery inside the prison for persons with no human relations. (Makoto Endo, "What a Death-row Inmate Norio Nagayama Left" (in Japanese) So Magazine, October, 1997)


39 In the Japanese legal system amnesty is not guaranteed as a right as provided in article 6 paragraph 4 of the Covenant. Article 6 of the rules for the enforcement of the Amnesty Law provides not a right but only a possible application. Article 8 of the same rules prohibits re-applications for amnesty within a period of one year. Furthermore, it is understood that execution is possible even while an application for amnesty is pending. (the Code of Criminal Procedure article 479) As for amnesty in capital cases, amnesty by Cabinet order (since April, 1952) and individual amnesty (since June, 1975) have not occurred. In the postwar period there have been only three instances of individual amnesty. Capital punishment is excluded from the scope of amnesty by Cabinet order. According to general comment 6[16] (July 27, 1982) concerning article 6 paragraphs 2 to 6 of the Covenant, although State Parties not obligated to entirely ban capital punishment, they are obligated to limit the application of capital punishment to the most serious crimes. Consequently State Parties must review their criminal codes in that light and restrict the application of capital punishment to the most heinous crimes. This article refers to a general ban on capital punishment with a phrase that implies the desirability of a complete ban (paragraphs 2 and 6 of article 6). The Committee concludes that every action for the ban on capital punishment must be thought of as progress towards the enjoyment of the right to life within the meaning of article 40. Therefore, such changes should be reported to the Committee. The Committee noted that many countries have already banned or stopped the implementation of the death penalty. Nevertheless the Japanese Government's report shows that progress towards a ban or restriction on the implementation of capital punishment is totally insufficient. 40 Upon leaving his cell to appear at a hearing in Tokyo District Court, he said "goodbye" to a foreigner in another cell. Immediately after this, five prison personnel pushed him down to the ground, and holding him by the arms and legs, took him to another cell where, for approximately five minutes, he was struck on all parts of his body resulting in injuries that required three weeks of treatment. He sued the authorities because of this assault and also because after the assault he was left completely naked in his cell and was not given adequate medical treatment. The director of the center apparently filed a report of the incident on the very day, saying that "[t]he prisoner was put into a cell because he suddenly became violent as he was being led away." The Tokyo Detention Center has stated that it will deny in court the claim that an assault occurred, even though a criminal complaint against the prison personnel had been duly accepted by the prosecutor. (Asahi Shimbun Newspaper, morning edition/Chiba, January 10, 1996). 41 "From the cafeteria wall to the risers on cellblock steps, signs warn, - in dozens of languages - that no one should talk. Others tell prisoners which position to sleep in and exactly where to squat while waiting to bathe. Outside, the only sound comes from inmates marching in military step.


In Japan, the idea of prison is to cage the mind, not just the body. Silence is deemed a more effective enforcer than sidearms or cattle prods." (Time Magazine, October 28, 1996)


42 Akio Yamaguchi, "Shimin ga tazuneta keimusho no insho" [Impressions of a Citizen's Visit to a Prison] in "Tsumi to batsu" [Crime and Punishment] No. 34-4 p.8. The writer is a researcher with the Research and Training Institute, a Ministry of Justice research facility. 43 Human Rights Watch, "Prison Conditions in Japan," p. 63 44 "Prison Life Rules" from Fuchu Prison The following are some of the rules for prisoners while inside their cells. (The text is given exactly as written in the original.) 1. When you wish to call a prison officer, put out the flap of you room and wait quietly for the arrival of an officer. 2. Always keep your room as clean as possible. Put paper and trash in the trash box. Never throw them in the sink or in the toilet. 3. Try to save water. Do not sprinkle water out of the window. Do not use water for colling [sic] things or do not keep the tap running. 4. Do not wash your head or body at your own will. Do not wash clothes without permission. 5. [omitted] 6. Do not lie down in your room whenever you please. Avoid leaning against the bedding or sitting on it. 7. Tidy yourself before role call. At the command of "TENKEN" stand up in attention at the place designated on the chart pasted on the door, and wait in silence. 8. When you hear the officer say "BANGO", say clearly your prison number in Japanese in the evening, and just say "ICHI" in the morning. 9. Remain standing still until you hear the command "NAORE", at the end of roll call. 10. Your sitting position in the room should be as designated in the chart in your room. In single room, sit facing the table while working, taking meals or during leisure hours. During bed time you can sit on the bed. 11. Those under punishment should sit on the stool at the designated place, in a correct position. Borrowing lending or giving receiving between inmates is strictly forbidden. You should not dispose of worn out towels. tooth brushes or any other daily necessities without permission, but make a request for disposal or have them exchanged for new ones by the officer in charge. 12-14 omitted 15. Observe the following when you are in bed. a) You should sleep in the designated place. b) When the fluorescent light is turned off, put your clothes, books etc. in their proper places and go to bed. Do not walk around without reason. c) Do not cover your face with the quilt or blanket. d) Without permission, do not use as a blanket for a bed sheet. Do not sleep with a blanket or bed sheet wrapped around your waist. e) Be sure to wear under wear etc. ,[sic] as prescribed, and never sleep naked. 16. omitted


45 The following are some of the rules pertaining to prison workshops: 1. DUTY TO BE AT WORK


To be engaged in prison work (whatever is assigned to you) is the most important duty for the convicted prisoners sentenced to imprisonment at forced labour. It is judicially imposed, so you must work hard whether you like it or not once you are assigned. If you neglect or refuse to work without justifiable reason, you will be subject to punishment. If you insist on a change work [sic], you will be punished as this is considered as act against your work obligations. though [sic] work is forced upon you, you should force yourself and make an effort to find pleasure in working. 2. WORK REGULATIONS (i) As a general rule, you work for 8 hours on weekdays. However, work hour may be extended or shortened depending on circumstances. You will start or stop working at the commands of 'SAGYO HAJIME' (begin working) and 'SAGYO YAME' (stop working) respectively, or at a signal. You should work diligently and according to instructed work orders given during working hours. (ii) You are not allowed to leave your work area without permission. Idle talk is strictly prohibited. Raise your hand to obtain permission from your factory guard beforehand when you have to leave your work area. (iii) You should try to make a habit to got [sic] to the toilet before you start working or during break hours so that you do not interrupt your work. (iv) When you go to the toilet, you will take a permission tag with you, and hang it to a fixed place. Conversation in the toilet is prohibited. (v)- (vii) omitted (viii) You should follow work instructions of work instructors obediently. (ix)-(xii) omitted


46 Tokyo High Court Judgement of October 30, 1996, Hanrei Jiho No. 1590 at p. 63.


47 From the Internet home page of Human Rights Watch: Prison Project.


48 In February, 1997 authorities at Akita Prison, located in northern Japan's Akita Prefecture, received a request from a prisoner that he be allowed to leave prison with his hair the same length hair as when he entered prison. He asked to be excused from the rule of mandatory head shaving beginning six months before his release. This request was refused and, on July 28, 1997, the Akita Bar Association issued a written warning to the warden of Akita Prison that the denial of this request was unlawful.


49 Death of a Prisoner at Hamada Detention Center (Branch Prison) A sentenced prisoner being held at the Hamada Detention Center in Shimane Prefecture (western Japan), died on July 25, 1996 due to lack of medical attention. As a result a lawsuit against the state has been filed. According to an attorney in this case, the prisoner first complained of sickness on July 20, which was probably due to his alcoholism, and the high temperature in his cell. He had not received any response to his complaint when he died five days later because of heatstroke.


50 Death of a Prisoner at Jono Prison Hospital A sentenced prisoner being held at Jono Prison Hospital (in western Japan) died on August 29, 1992 after having been assaulted by a prison officer. Following this assault, he had complained of abdominal pain, but was denied adequate medical treatment. This prisoner had just been placed at the facility on August 25 because he was suspected of being mentally impaired. The warden of the prison hospital formally identified the body and the next day, without a judicially authorized autopsy, a funeral was held and the body cremated.


51 MCA Report p.74ff.


52 MCA Report p.82.


53 MCA Report p.83.


54 MCA Report p.118.


55 MCA Report p.46ff.


56 Tokushima District Court, 1991 (Wa) No. 264; Tokushima District Court, 1992 (Wa) No. 268; Tokushima District Court, 1994 (Wa) No. 9., Decision of March 15, 1996.


57 Takamatsu High Court, 1996 (Ne) No. 144; Takamatsu High Court, 1996 (Ne) No. 204, Decision of November 25, 1997.


58 In 1984, the warden of Niigata Prison twice refused permission to a person he referred to as "a lawyer who was willing to become the representative" of a prisoner who had requested a meeting with an attorney in order to file a lawsuit seeking improvements in prison treatment. In response to this refusal, the prisoner brought a separate suit against the state and, in August, 1991, the Tokyo District Court ruling that the refusal to permit the attorney's visit as unlawful ordered payment of 200,000 yen in compensation. (Tokyo District Court, 1991 [Wa] No. 264, Hanrei Jiho No. 1403, Judgement of August 30, 1991) The state appealed this decision and it was overturned by the Tokyo High Court on the grounds that the refusals were within the discretionary power of the warden. The court's reasoning was based on the premise that the prisoner had requested the attorney's visit in order to sue the state, but that is in fact incorrect. Originally the prisoner asked the attorney to investigate the death of another inmate and at the time of the refusals of permission the prisoner had not made any request to the attorney about representing him in a lawsuit against Niigata Prison. (Tokyo High Court, 1993 (Ne) No. 3158 and 3228, Hanrei Jiho No. 1470, Judgement of July 21, 1993)


59 In January, 1998 the Asahikawa District Court, which was hearing the case of a prisoner who had been in solitary confinement for over 13 years in Asahikawa Prison, recommended that the prison permit the plaintiff to have visits with his attorney without the presence of a prison officer in attendance, but the warden did not comply with the recommendation.


60 Court brief dated February 21, 1989, Tokyo District Court, 1988 (Wa) No. 14850. The decision in this case was handed down on December 13, 1994. (Hanrei Jiho No. 1547 at p. 94)


61 Decision in Toshiaki Masunaga v. Japan, by the Tokyo District Court on March 15, 1996. Noting that the adoptive parents in this case participated in the movement opposed to the death penalty, the court found that "[t]here is a suspicion that the adoptive relationship between the plaintiff and the other respective parties was formed to secure a route of communication with the outside." (Hanrei Jiho No. 1591 at p. 69, Judgement of June 25, 1996 in Yukio Ajima v. Japan)


62 This report noted the following: There is a positive relationship between the record of a prisoner and the prisoner's conversational and reading ability in Japanese. The lower the Japanese comprehension level, the lower the prison record tends to be... A large number of respondents who answered 'yes' to the question, 'I understand instructions from prison officers' also maintain that they have become used to prison life, and it is easier for these respondents to give positive evaluations about their situation, such as saying that they are not dissatisfied with the length of their sentences or that the prison officers are considerate about giving instructions. However, 74 of the respondents said they did not understand instructions from prison officers. Whether or not a prisoner understands directions given by prison officers has a bearing on how their records are evaluated. It is easier to give a poor evaluation of the record of a prisoner who does not understand directions than to one who does understand. (Gyokei shisetsu ni nyusho shita gaikokujin hishuyosha no jittai ni kan suru kenkyu [A Study of the Situation of Foreign Prisoners in Penal Facilities] by Tomiyoshi Kawahara, pp. 138, 142. Bulletin of the Research and Training Institute (Ministry of Justice) vol.38, No. 2, 1995.)


63 The Egyptian's Case


An Egyptian national held in the Tokyo Detention Center suffered a series of brutal assaults by a guard between 1993 and 1994. The assaults were accompanied by insults, such as "You beggar!" The guard also said, "I'll teach you to fear Japanese. Don't you dare make light of a Japanese." (from the attorney's report)


64 The Nigerian's Case


In 1994, a Nigerian black suffered brutal assaults on a number of occasions from a guard who addressed him as "gorilla." The Nigerian responded to the insult with the all-purpose, Japanese insult/challenge, "Bakayaro!" (Literally, "Stop being an idiot!" or more freely translated "You jerk!") For this, he received punishment. The Nigerian protested that the guard was making racist statements and that it was unfair that he should be singled out for punishment. This protest resulted in his being punched and kicked. The lawsuit resulting from this incident was tried by the Tokyo District Court. The court rejected the plaintiff's demands in December, 1996, even though the guard admitted in court to calling the Nigerian a "gorilla."


65 This case basically consists of the following charges: (1) "Eyes shut" incident


The prison has a rule that prisoners must keep their eyes closed before meals begin. The breaking of this rule by Mr. Mara was taken to be "defiance" and consequently he was punished during June and July of 1993. Mr. Mara says that he opened his eyes when his name was called. The state says that his eyes were half opened before his name was called. He received 10 days punishment. When the period of punishment began, his hands were bound in leather handcuffs and he was confined in this state for two days in a protection cell. This was an additional punishment for what the state claims was "slamming" a book into a bookcase. This latter incident arose on a separate occasion when a guard gave to Mr. Mara the order "Books out," which was taken to mean "put the books away." Mr. Mara claims that he complied with the order quickly, but not violently. Mr. Mara also asserts that first he was stripped of his clothes, then for the first 20 hours of this ordeal he was kept in leather handcuffs so that he actually had trouble breathing. During this time, he was clothed a straightjacket and trousers with a split crotch to permit urination and defecation while his hands were immobilized. (This latter point is basically not disputed.) This treatment constitutes degrading treatment within the meaning of article 7 of the Covenant and as such is prohibited. (2) The "muttering" incident


On December 14, 1995 at a prison workshop, a guard shouted at Mr. Mara for having scratched his chin, saying that he looked outside through a window and such a behavior fell into a violation of prison rules. Mr. Mara apologized, but the guard, his anger unabated, ordered him to stand against the wall to begin punishment procedures. As the guard walked away, Mr. Mara said in a low voice, "Crazy." For this word he was given 15 days punishment. (3) The "hair-wetting" incident


On the morning of February 13, 1996, Mr. Mara patted down stray hairs at the back of his head with moisten fingers. This was interpreted as "washing his hair outside the prescribed bathing time" and 5 days punishment was imposed. (4) Solitary confinement and slave labor


In March, 1996, Mr. Mara sent a letter to the JFBA requesting that a lawyer be sent to him to prepare a lawsuit against the arbitrary punishments he had received. The prison responded by putting him in solitary confinement. Concerning this, the state maintains that the reason for this detention was "the danger that he would call upon other prisoners to file lawsuits." From that time, Mr. Mara was kept in solitary confinement with the exception of two or three 30-minute exercise sessions a week and two or three 15-minute baths a week. He was kept in a cell whose windows were covered by plastic permitting only an inadequate amount of light and ventilation. He was made to work eight hours a day, forty hours a week sitting in his cell making shopping bags. The compensation he received for the work done in the month of May, 1996 was 900 yen, a sum far below the amount received by other prisoners. Mr. Mara was also not granted parole.


66 Subsequent events of the case


By January, 1998, Mr. Pilhvar was unable to eat solids of any kind, being sustained only on liquid nutrient. Through this regime, he regained some weight. Then, in May, he began vomiting even the oral liquid nutrient and had to be put on 24-hour intravenous feeding in order to keep him alive. The longer this treatment continues, the fewer places there are in his veins where the needle can be inserted. Presently, he is receiving feeding through an insertion in his leg. He has lost 4 kg. in two months and, as of July 14, he weighed 44 kg. Despite the desperateness of this situation, prison authorities have refused any treatment by a specialist for the paralysis of his right leg or for his inability to eat, alleging that he pretends to be ill. In mid-July, he was transferred again to the Hachioji Prison Hospital, but whether or not he will receive treatment from an appropriate specialist remains unclear. Mr. Pilhvar has been the subject of an Amnesty International Urgent Action campaign.


67 "Because it is appropriate for the sake of promoting social rehabilitation through early establishment of conditions for independent rehabilitation in the native country, at present the parole system is being administered flexibly with a view to achieving early release.... The parole rate of F Class prisoners exceeds 90% (the rate for all other prisoners is around 55%). In recent years, the rate of [foreigners] actually serving time is also relatively low. (From "Treatment of Foreign Prisoners," in Development of Japan's Prison Administration, by Akira Kiyohara, 1993.)


68 Table 188 of the Annual Report of Judicial Statistics, 1996, vol.3 Family matters


69 For details, see "A Proposal Concerning the 'Comfort Women' Problem" (January, 1995) and a supplementary document to that proposal, dated June, 1995.


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