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HOME > Public Statements and Opinion Papers > Opinion Papers > JFBA Opinion concerning the Japanese Government’s Comments on the Draft General Comment No.36 on Article 6 of the International Covenant on Civil and Political Rights

JFBA Opinion concerning the Japanese Government’s Comments on the Draft General Comment No.36 on Article 6 of the International Covenant on Civil and Political Rights

icon_pdf.gif Opinion (full text) (PDFファイル;1.7MB)

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  February 14, 2018
Japan Federation of Bar Associations


The United Nations Human Rights Committee is currently considering its “General Comment on article 6 of the International Covenant on Civil and Political Rights, on the right to life (General Comment No. 36, the “General Comment”) at its sessions.

icon_page.png Webpage of the Office of the United Nations High Commissioner for Human Rights .


The United Nations Human Rights Committee invited all stake holders to provide their comments on the General Comment, and the Japanese government submitted icon_page.png its comments . In response to this submission by the Japanese government, the Japan Federation of Bar Associations (the “JFBA”) prepared its “JFBA Opinion concerning the Japanese Government’s Comments on the Draft General Comment No.36 on Article 6 of the International Covenant on Civil and Political Rights” (the “Opinion”) on February 14, 2018, and submitted it to the United Nations Human Rights Committee on March 9, 2018.



Summary of the Opinion


1. The Japanese government’s comments on the Human Rights Committee’s General Comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life (the “Government’s Comments”) on the interpretation of “the most serious crimes” mentioned in the second sentence of Paragraph 39 of the Human Rights Committee’s General comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life (the “General Comment”) concerning the restrictive application of the death penalty proposes the removal of “armed robbery, piracy and sexual offences” from the second sentence and the insertion of “In principle” at the beginning of the second sentence. Not only does Japan have many types of currently eligible crimes for capital punishment, but the Japanese government (the “Government”) also intends to loosely construe the restriction by this comment. It is contrary to the purpose of article 6, paragraph 2 of the International Covenant on Civil and Political Rights (the “Covenant”), and should not be thus adopted.


2. The Government’s Comments as in (1) to (3) below on the international society’s efforts to abolish the death penalty mentioned in the first sentence of Paragraph 44, and Paragraphs 54 and 55 of the General Comment are contrary to Paragraph 13(a) (the consideration to the abolition of death penalty and the reduction of the number of eligible crimes for capital punishment) and Paragraph 13(f) (the consideration of acceding to the Second Optional Protocol to the Covenant) of the concluding observations on the sixth periodic report of the Government adopted by the Human Rights Committee in 2014. These comments express the Government’s insistent attitude toward the preservation of the death penalty merely with Japan in mind. They are not thus appropriate.
(1) The Government states with regard to the interpretation of article 7 of the Covenant mentioned in the first sentence of Paragraph 44 that:
…the expression “States parties that have not yet abolished the death penalty” is inappropriate and that it should be replaced by another appropriate expression such as “States parties that have the death penalty”.
(2) The Government proposes deleting Paragraph 54 entirely.
(3) The Government proposes deleting Paragraph 55 entirely.


3. The Government’s Comments as in (1) and (2) below on the failure to provide information on the execution of the death penalty prior and subsequent to the execution mentioned in the fifth sentence of Paragraph 44 and the second sentence of Paragraph 60 of the General Comment are contrary to sentiments of individuals on death row and their families, and also deprive those on death row of the opportunity to exercise their rights. These comments should not be thus adopted.
(1) The Government states with regard to the fifth sentence of Paragraph 44 that the fact that an individual sentenced to death is not notified of the exact date of execution in advance does not constitute a form of ill-treatment and that there are reasonable grounds such as reduction of psychological agony of an individual sentenced to death.
(2) The Government states with regard to the second sentence of Paragraph 60 that the execution of inmates to their relatives is not notified in advance to give consideration to psychological suffering to the relatives, and calls for the deletion of “of the date in which the carrying out of the death penalty is anticipated, and” in the second sentence.


4. The Government’s Comments as in (1) and (2) below on the attendance of a defense attorney and due process in the criminal proceedings which impose capital punishment mentioned in the second sentences of Paragraphs 45 and 58, respectively, of the General Comment indicate its lack of the understanding of due process in the criminal proceedings, and, inter alia, underestimate the risk of misjudgment on the death penalty. These comments should not be thus adopted.
(1) The Government states with regard to the second sentence of Paragraph 45 that due process in the interrogation or preliminary hearings can be implemented without the attendance of a defense attorney, and proposes deleting “during criminal interrogation, preliminary hearings”.
(2) The Government states with regard to the second sentence of Paragraph 58 that although it opposes any ill-treatments, a death penalty based on the information procured by any ill-treatment is not immediately regarded as a violation of article 6 of the Covenant, so requests the replacement of “would” by “could”.


5. The Government’s Comments as in (1) and (2) below on the judicial and administrative reexamination of death sentences mentioned in Paragraph 50 and the first sentence of Paragraph 51 of the General Comment indicate its lack of consideration of capital punishment which causes deprivation of life in an irreversible manner for the sake of justifying the current implementation of the death penalty in Japan. These comments should not be thus adopted.
(1) The Government suggests deleting Paragraph 50 entirely.
(2) The Government proposes deleting the word “conclusively” in the first sentence of Paragraph 51, because there are cases where convicted persons make repeated application for pardons on the same grounds to avoid the death penalty.


6. The Government’s Comments as in (1) and (2) below on the narrowing down of eligibility for the death penalty mentioned in Paragraph 53 of the General Comment are a formalistic opinion, failing to consider the mental status of those who face the execution of the death penalty, and also differ from the past implementation of the execution by the Government. These comments should not be thus adopted.
(1) The Government suggests modifying the expression of the first sentence of Paragraph 53 to avoid the misunderstanding that capital punishment may not be carried out against offenders with minor mental disabilities as long as a sentence of capital punishment is finalized after a careful hearing in a criminal trial.
(2) The Government suggests deleting the second sentence of Paragraph 53, stating that because the factors enumerated after “and persons whose execution would be exceptionally cruel” are factors to be considered during a trial, they cannot be a sufficient ground to avoid the execution.


7. The Government’s Comment for deleting the fifth and sixth sentences of Paragraph 43 of the General Comment on the retroactive application of the abolition of the death penalty cannot be accepted as the interpretation of the third sentence of article 15, paragraph 1 of the Covenant.


8. The Government proposes adding “unless credible and effective assurances against the imposition of the death penalty in violation of article 6 of the Covenant have been obtained” at the end of the third sentence of Paragraph 34 of the General Comment on the extradition of criminals. This comment is logically meaningless. It could be just a confirmation or stress for the condition.