The Ninth United Nations Congress on the Prevention of Crime and the Treatment Offenders Cairo, Egypt
10 April 1995
A Report from the Japan Federation of Bar Associations
to the Ninth United Nations Congress on the Prevention of
Crime and the Treatment of Offenders
Japan Federation of Bar Associations (JFBA)
- 1. Organization and Activities of the Japan Federation of Bar Associations
- 2. State of Independence of the Judiciary in Japan
- 3. Judicial Reform
- 4. Roles of Lawyers and Bar Associations
- 5. The Duty Attorney System
- 6. Police System
- 7. Rights of Detained Persons
- 8. Elimination of Violence Against Women
- 9. Prevention of Juvenile Crime and Delinquency and the Roles of Lawyers and Bar Associations
- 10. International Cooperation in the Administration of Justice - Future Problems for JFBA to Consider
Appendix: Independence of Judges and Protection of Lawyers' Activities (A report to the United Nations Centre for Human Rights by the Japan Federation of Bar Associations, June, 1991)
1. In 1985, the Japan Federation of Bar Associations (hereafter, JFBA) sent two representatives to the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders (hereafter, Congress on Crime Prevention), held in Milan, then four representatives were sent to the 1990 Congress on Crime Prevention in Havana. The JFBA has conducted activities to disseminate in Japan information learned at these meetings, together with the relevant United Nations documents. Especial efforts were made to disseminate and make use of the "Basic Principles on the Role of Lawyers," "Standard Minimum Rules for the Treatment of Prisoners," "United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)," "United Nations Guidelines for the Prevention of Juvenile Delinquency (the Guidelines of Riyadh)," and " United Nations Rules for the Protection of Juveniles Deprived of Their Liberty". In the light of these documents, the conclusion is unavoidable that Japan's handling of crime and criminals is substandard.
2. In preparation for the Ninth Congress on the Prevention of Crime and the Treatment of offenders, a working group consisting of twelve individuals was formed in July, 1994 to prepare for our participation and one representative was sent to the fourth meeting of the Commission on Crime Prevention and Criminal Justice as part of the tasks for preparing this paper.
2.2 This report was written with the themes of the conference in mind, i.e., (1) international cooperation and technical assistance to strengthen the rule of law, (2) the roles of criminal law in the national and international economy, in opposing organized crime and in environmental protection, (3) administration of criminal justice and the police system, operation and improvement of criminal procedures, retrials and corrections and the role of lawyers, (4) prevention of urban crime, juvenile crime and crimes of violence, and remedies for victims of crime. At the same time, this report is mindful of the world contributions Japan should be making in the area of human rights activities and criminal law. The JFBA is supported by a self-sacrificing volunteer spirit among its members, which has been evident in such areas as judicial reform and the institution of the Duty Attorney System. This report was prepared in the hope that these experiences may be of some small reference to people of other countries. A detailed account of the human rights situation in Japan has been given in the 1993 report, "A Report on the Application and Practice in Japan of the International Covenant on Civil and Political Rights".
3. Finally, it is my earnest hope that the Ninth Congress on Crime Prevention is fruitful, and that it leads to progress in the prevention of crime and treatment of offenders throughout the world.
President, Japan Federation of
Bar Associations (JFBA)
4. The JFBA was established in September, 1949. All bar associations and lawyers are members, in accordance with Art. 47 of the Practicing Attorney Law.
5. There are 52 bar associations in Japan, with one for each of the fifty district court jurisdictions, except in Tokyo, which has three bar associations.
6. As of February 1, 1995, the JFBA had a membership of 15,130 practicing attorneys.
7. Each bar association is a separate legal entity. having a unique history. Each is an equal member of the JFBA, with its own legally specified agencies that handle various affairs, and which has its own programs of outside activities.
8. Of especial note is the right of self-autonomy given each bar association. They act according to their own judgement, subject to direction neither from state or local government, nor from courts. The power of disciplining attorneys is given to each bar association ( Practicing Attorney Law, Art. 56).
9. The following 16 committees are responsible for the JFBA's main activities. These activities are directed at furthering human rights protections, while all are concerned with crime, crime prevention and the treatment of offenders: Human Rights Protection Committee Criminal Defense Center Committee for the Establishment of Detainees' Access to Lawyers Committee on the Two Detention Facilities Bills Committee on the Rights of the Child Committee concerning Court-Appointed Attorney System Anti-Racketeering Committee Committee on Reform of Legal Aid System Committee on Pollution Measures and Environmental Conservation Judicial Problems Committee Judicial System Research Committee Consumer Problems Committee Committee on Criminal Law Amendment Committee concerning State Secrets and the Freedom of Information Committee for the Equality between Men and Women Committee on Judicial Reform
(1) Independence of Judicial Power
10. Japan's government is founded on the principle of separation of powers, through a systems of checks and balances between the three functions of the legislative, executive and judiciary. The courts have exclusive judicial authority, and to the extent that they are not subject to intervention from the government, it could be said that their independence is secured. Government intervention, such as was evident in the incident of 1891, when the government pressured the Great Court of Cassation (an institution of the former Meiji Constitution) to hand down a death sentence to a police officer who injured the visiting Russian Crown Prince (this was successfully resisted), or interventions by the Diet, that occurred in two incidents in the postwar period (in 1949, the Committee on Judicial Affairs of the Upper House passed a resolution that criticized a sentence passed by the Urawa District Court, and in 1953, the Judges Impeachment Committee of the Upper House threatened to impeach an Osaka District Court judge for his handling of a case) are no longer evident.
11. However, the power of the cabinet to appoint Supreme Court justices always carries with it the danger of the judiciary becoming one with the political system. Indeed, a situation inconceivable in other countries, in which the state wins in over 90% of all lawsuits to which it is a party has become a matter of course in Japan. This situation poses a potential threat to the principle of the independence of the courts from state authority.
(2) Independence of the Judiciary
12. A fundamental part of the independence of the judiciary in Japan is the independence of judicial administration, that is, the operation of the court system. Japan has a distinctive court system that is run on bureaucratic principles, with the judges themselves administering the court system.
13. In Europe, whose courts are also bureaucratic, there are ministries or other bodies that run the court systems. However, one of Japan's post-war reforms placed the power to establish regulations over the judiciary and draft its budget with the courts themselves. The judiciary's power over its own affairs includes personnel affairs, management of offices and buildings and administration of its own budget. In principle, at least, every court, from the Supreme Court to district and family courts, have these powers, which are exercised through bodies of judges called judicial conferences.
14. However, by fifteen years after the end of World War II, this system had almost completely broken down. Today, the functions of judicial administration are concentrated exclusively with a group of judges who have become in fact a new bureaucratic class. This matter is discussed in detail in the June, 1991 report from the JFBA to the United Nations' Centre for Human Rights, "Independence of Judges and the Protection of Lawyers' Activities." It is in any case generally recognized that the General Secretariat of the Supreme Court has de facto control of judicial administration.
(3) Independence of Judges
15. Japan's judges are supposed to be independent, subjected to no restrictions other than the Constitution, the legal code and their consciences. It is indeed true that there has been a conspicuous lack of intervention by the state since a remark by the Justice Minister in 1967 to the effect that some sort of check on the court was needed in view of its finding of a public security ordinance to be unconstitutional. This remark was met with strong opposition from the courts that proved decisive.
16. Ironically, however, from the time that external infringement on the independence of judges dwindled, there arose a conspicuous succession of abuses against judicial independence from within the judiciary. An incident characteristic of this occurred in 1969, when Kenta Hiraga, the chief judge of the Sapporo District Court, sent a memo to Shigeo Fukushima of the same court, concerning a case over which Fukushima presided. The case was a civil suit brought by the residents of Naganuma, Hokkaido, in opposition to the installation of a Nike missile base by the Defense Agency. The sending of this memo amounted to judicial interference. Following this incident, the General Secretariat of the Supreme Court began to exercise control over judges in a variety of ways. The first refusal of the Legal Training and Research Institute to appoint one of its graduates as a judge came in 1970. Its refusal in 1971 to reappoint Yasuaki Miyamoto as a judge brought a storm of opposition that was called a "a crisis of judicial administration." Controls have intensified gradually since then. The Supreme Court General Secretariat and the Legal Training and Research Institute are able to monitor what comes out of the numerous assemblies, conferences and study groups that judges organize among themselves.
The General Secretariat is able to monitor the records of these activities and exert influence over legal interpretations made therein. In this way, the General Secretariat exerts influence over the legal interpretations and views of judges. This problem of internal, rather than external authority affecting the independence of judges is characteristic of Japan's judiciary.
(1) Judicial Authority
17. The power to adjudicate belongs exclusively to the courts. Such special courts as military tribunals or administrative courts have all been abolished.
18. Japan uses a three-tiered system of trials and appeals that is implemented, from the top down, by the Supreme Court, 8 high courts (with 6 branches), 50 district courts (with 242 branches) fifty family courts (with 242 branches and 59 sub-branches) and 452 summary courts.
19. Japan has a variety of agencies for handling disputes, such as a system of labor relations commissions, the Fair Trade Commission, the Marine Accidents Inquiry Agency, the National Tax Tribunal, the Central Environment Pollution Investigation Council, etc. However, cases to be handled by these agencies may also be filed through a court to start the legal process, and the Supreme Court has the ultimate authority over the decisions and legal interpretations involved.
(2) Authority to Determine the Constitutionality of Legislation20. Japan's courts have the exclusive authority to make decisions on all legal disputes and to rule on the constitutionality of all laws, orders, rules and administrative actions. Thus, the courts have the responsibility not only of deciding the applicability and effectiveness of laws and the legality of acts, but must, if necessary, pass judgement on the constitutionality of laws as well. Therefore, the standards for adjudication by a judge are ultimately the Constitution and their own conscience alone and the laws themselves are subject to their judgment.
21. The ultimate authority of reviewing the constitutionality of legislation lies with the Supreme Court, which is called “the guardian of the Constitution."
22. To what extent, then has this guardian carried out its job? The Supreme Court notes that 308 rulings of constitutional violations have been handed down by all courts in the forty years since the establishment of the present system. However, the Supreme Court has been responsible for only five of these rulings, such as the striking down of a provision in the Penal Code for capital punishment or life imprisonment for the murder of a lineal ascendant, which presumed that to kill one's parent is a more serious crime than other kinds of murder. In general, however, the impression of the Japanese people is that the Supreme Court is very passive in its use of its authority to review the constitutionality of legislation.
(3) Passiveness of the Courts
23. Japan's courts are both unambitious and stoic regarding the exercise of their authority. Japanese generally consider stoicism to be a virtue. However, the tendency of the courts to be unambitious in regard to the protection of the rights of the people, and to be stoic in regard to checking the illegal exercise of the power of the state are hardly desirable qualities.
24. Following are some specific examples.
25. a- The courts use the special agencies for resolving disputes as a pretext for evading responsibility. They delegate the processing of many cases to these agencies that in other countries would be handled by the judicial process.
26. b- Recently, 41 branches of district and family courts and 101 summary courts have been closed down. The closings were not ordered by the executive or legislatures, but by the courts themselves, which implemented the closings over the opposition of the residents affected.
27. c- Courts often evade handing down judgements in cases brought by citizens looking to the court for redress of a situation. They frequently refuse to make judgements on acts of state or local authority, on the grounds that the issue is a political question, or that it involves executive discretion or the autonomy of the Diet, in effect, ratifying the status quo.
28. d- Passivity, as noted above, concerning the power to make constitutional rulings.
29. e- In respect to the rights of the accused in criminal cases, the courts have a conspicuous lack of enthusiasm in the exercise of their power to check the arrest and detention of suspects in criminal cases. (For specifics, see Chapter 6, "Police System," section 2, "Problems Concerned with Police Engaging in Criminal Investigations.")
30. (1) Japan's judiciary operates according to a career system that is unlike countries under the Anglo-American system in that all legal professionals acquire qualifications according to a unified system that is unique among Japan's systems of professional training, The basic qualification is acquired by passing the national legal examination. All those who pass this examination study at the Legal Training and Research Institute for two years, after which they are given the choice of what career in the legal profession to select. However, there is reason to suspect that the appointment of judges is dependent not only on one's performance at the Institute, but is also subject to discrimination concerning the personal beliefs of the candidates. (Little gender discrimination remains today.) As of 1993, Japan had 2,036 judges (exclusive of summary court judges). Since 1970, 51 applicants for judgeships have been turned down, according to the Supreme Court's own figures. In 1994, the application for a judgeship of another Legal Training and Research Institute trainee was turned down by the Supreme Court. In none of these cases were the applicants informed of the reasons for their rejection. The suspicion remains that they were the victims of discrimination for their personal beliefs.
31. (2) Judges cannot be relieved of their positions, transferred to other duties or to other courts, be suspended or be penalized by pay reductions during their tenure. These protections are guaranteed by the Constitution. However, a special system that applies to judges of lower courts limits their tenure to ten years.
32. Japan's career system makes the positions of today's judges less secure than they were under the Meiji Constitution, which guaranteed their judgeships for life.
33. In fact, reassignments or transfers of judges against their will have been reported. The fact that assistant judge Yasuaki Miyamoto was not reappointed in 1971 demonstrated the subservience of judges to the General Secretariat of the Supreme Court which has the power of personnel assignment .
34. (3) The Young Jurists Association is a group of legal professionals that is nonpartisan with regard to party affiliation and takes as its slogan, "Protection of the Constitution, peace and democracy." Members of the judges division of this group (which has since been dissolved) and active members of the National Judges' Society were subjected to discrimination concerning appointments, position and pay.
35. One judge who had handed down a ruling finding the Self-Defense Forces unconstitutional was shifted from one family court to another for 13 years.
36. A judge who ruled that a ban on house-to-house calls by candidates during elections was unconstitutional was shifted among three different branches in a 9-year period. Another judge involved in a house-to-house call case had his pay increases stopped, so that by the end of his career, he was receiving the pay of a judge two ranks lower (a difference of 3.2-5 million yen a year). This discriminatory handling of judges conflicts with the Principle 13 of the Basic Principles on the Independence of the Judiciary.
37. (4) According to the "Commentary on the Court Organization Law" which was edited by the Supreme Court, judges have the freedom to join political parties or engage in other kinds of political activity that does not meet the definition of "active political involvement" prohibited public officials. However, in reality, it is recognized that judges are not expected to engage in any political activity other than casting votes.
38. The Secretary-General of the Supreme Court previously advised judges to resign from the Young Jurists Association. The discrimination received by judges who refused to comply, as described above, remains unrectified.
39. Such activities engaged in by European or American judges as joining political parties, doing party work, joining in party events or campaigns or declaring themselves in favor or against positions of specific parties would be inconceivable in Japan.
40. (5) Japan's Constitution guarantees the people the freedoms of thought, assembly, association, speech, organization, and collective bargaining. Barring special circumstances, these freedoms should not be denied judges. Principles 8 and 9 of the Basic Principles on the Independence of the Judiciary also provide for the guarantee to judges to civil liberties, including the freedom to form and join associations, etc.
41. However, Japan's judges have no labor unions, nor are there any other permanent or temporary groups to promote the demands of judges themselves. There have been no examples of collective actions by judges to win demands or engage in disputes of any kind.
42. Judges are often required to report to or receive permission from the Supreme Court or local court to which he or she belongs before making contributions to legal journals, delivering speeches to bar associations or other groups, etc. Thus, it must be said that Japan's judges are subjected to limitations on their freedom of association and other basic civil liberties.
43. (6) It must also be considered that these policies are being pursued not by the government or a party in control, but by the judiciary itself. Concerning the actual situation of the independence of the judiciary, please refer to the appended report of June, 1991, from the JFBA to the United Nations' Centre for Human Rights, "Independence of Judges and Protection of Lawyers' Activities."
44. 1) The JFBA adopted declarations calling for judicial reform at its regular general meetings in 1990, 1991 and 1994.
45. These declarations reflect the following views concerning the realities of Japan's legal system.
46. Japan's Constitution provides for the independence of judicial authority as a guarantee of the protection of human rights. In contemporary society, many factors work to the detriment of human rights. Economic development breeds pollution, environmental damage and an increasing variety of threats to the well-being of consumers. In addition, expansion of the role of the executive powers of government has been accompanied by various kinds of troubles in the lives of the people. The advance of society and its increasing internationalization has raised the people's awareness of their own rights, resulting in more legal disputes.
47. In view of the many problems that exist, the judicature must function adequate to bring about fair solutions to these problems, and to protect the rights of the people. However, as mentioned in Chapter 2, "State of Independence of the Judiciary in Japan," the reality is that Japan's system of justice is not in a position to answer these expectations, but, on the contrary, is widening its distance from the people.
48. Its power to check the authority of the state has conspicuously deteriorated in such areas of administrative litigation and criminal procedures. Many Japanese no longer even expect the justice system to ever act as a check on state or local government actions.
49. In the area of dispute resolution, the justice system is not readily available to the average person. Solutions require a great deal of time and money. For these reasons, many people are pessimistic about the justice system.
50. The situation is popularly referred to as "twenty percent justice." This catch phrase derives from a survey that found that ten percent of disputes are solved by trials and another ten percent through legal consultation. The understanding is that in the vast majority of cases, the justice system is useless.
51. 2) The first factor that must be cited to account for the present state of judicial administration is that the judiciary has steadily lost capacity to handle cases. The size of the judiciary relative to the sum total of all national institutions has shrunk with the passing years. The ratio to the national budget of appropriations for the judiciary has fallen to half of what it was thirty ears ago. Increases in the number of judges have been slight in relation to vast increases in the population and increases in numbers of cases. In 1993, the number of judges, exclusive of summary court judges, was 2,036. This is almost exactly the same as the number that existed 100 years ago. Prosecutors are in an ever more serious state of shortage than judges. In 1988, there were 2,012 prosecutors (1,097 prosecutors and 915 assistant prosecutors). Concerning practicing attorneys, a great many communities are not served by a bar association. It can by no means be said that there are enough practicing attorneys to serve the needs of the people. This lack of human resources necessarily translates into poorer functioning of the judiciary.
52. The second factor is the bureaucratic nature and lack in approachability, from the standpoint of the public, of Japan's courts and public prosecutors offices. The General Secretariat of the Supreme Court sits atop a centralized system that effectively exerts control over judges. For this reason, judges are prone to hand down decisions that are uniformly favorable to the executive, rather than demonstrating independence in latitude, as called for by individual cases. Similar assessments of the role of the public prosecutors have been made. The situation is said to be responsible for an increase in dropouts from the system of officials midway in their careers, out of discontent with bureaucratism. It is also pointed out that Japan is quite unusual among the advanced countries in that the electorate has no say in the selection of officials of the judiciary. This is yet another cause of apathy toward the administration of justice.
53. 3) Besides its declarations calling for reform of the judiciary, in 1992, the JFBA established a Committee on Jndicial Reform, and launched a series of activities toward this goal. The JFBA has also established a Criminal Defense Center, whose objective is reform of the criminal justice, a Committee on Reform of Legal Aid system, and various committees working on many related problems. In this way, a system of advancing the judicial reform movement has gradually been built up throughout the country, though the establishment of committees and organizations at the regional level.
54. The first characteristic of this legal reform movement that should be mentioned is that the JFBA strongly emphasizes its solidarity with the people in pursuing its goals, based on the firm belief that it is the people who bear the ultimate responsibility for effecting this reform. As mentioned above, there exists a long-prevailing situation in which the justice system is distant from the average citizen, and therefore the average citizen does not necessarily have a high level of interest in judicial reform. Thus, the JFBA's efforts are directed at planting the seeds for a citizen's movement for judicial reform throughout the country. One example of these efforts is a movement to encourage people to attend trials, to observe how they are conducted and increase their awareness of pertinent issues. The JFBA has organized trial observers' clubs throughout the country. In those regions where such clubs have not been organized, bar associations are conducting public information activities to promote attendance of trials by citizens. The goal of these activities is to raise consciousness of legal issues among the people. One result of these activities is that some citizens are calling for improvements in court buildings and facilities.
55. The second point concerning the judicial reform movement is that lawyers and bar associations have come out very clearly on the need for their own individual efforts in bringing about reform. This realization has brought about the establishment in all the bar associations across the country of the Duty Attorney System, by which lawyers are dispatched to give free consultation with detained suspects, at the request of the suspects. Another example is free legal consulting services concerning the rights of children. Lawyers are also working to establish effective systems of legal consultations in areas of the country where there are no lawyers or the number of lawyers is very small. In cases when lawyers for consultation are not available, bar associations whose territories include such areas have been asking for assistance from neighboring regions, and in the future plan to establish permanent, publicly-run consultation centers and offices. Through these efforts, the JFBA believes it can bring the legal system closer to the people, and win their confidence in JFBA efforts at judicial reform.
56. Let us conclude this chapter with the issues in legal reform currently being addressed by the JFBA's Committee on Judicial Reform.
57. First, is the appointment of lawyers as judges and prosecutors. As described above, Japan's judiciary is characterized by an iron-bound bureaucratic system. To remedy this, the JFBA has for many years maintained a system for democratizing the courts by recruiting appointees for the position of judge or prosecutor people who have had the experience of working and practicing as lawyers. This system provides a significant infusion among the nation's judges of perceptions closer to that of the average citizenry. It is hoped that this system will provide a foundation for the unification of the legal profession. The JFBA cooperates with its member bar associations to recommend lawyers for appointments, and every year is responsible for the appointment of about eight lawyers as judges or prosecutors. It is hoped that in the future the system will expand both in numbers and in quality.
58. The second topic is improvement in the administration of civil litigation, and expansion of the number of court facilities and personnel. As mentioned above, civil litigation only serves to settle a small part of the disputes that arise in our country. One major reason for this is a poverty of court personnel and facilities. With the recent expansion in the number of cases, courts have been driven to bolster the number of court personnel and facilities mainly in the major cities, with the result that judges are taken away from rural and smaller urban areas. Bar associations in regions where the number of judges has diminished have opposed this practice, but this problem will not be solved without an overall increase on the population of judges. The JFBA is actively campaigning to promote popular demand for an increase in the number of judges.
59. Other factors having to do with the popular perception of a distant and cold judiciary have to do with the unnecessarily forbidding and authoritative atmosphere of the physical design of the buildings, and a lack of kindliness toward the people who use these facilities. The JFBA conducts surveys of court buildings, and is promoting improvements in these areas.
60. The legal profession in Japan is traditionally insensitive to the needs of the people. It has not abandoned its historical obliviousness to the vast amounts of wasted time involved in conducting its business. It takes an average of 27 months for the original trial in a civil suit to reach a judgement. Litigation should never lack fairness, be subject to authoritarian administration or be conducted with no regard to meeting the expectations of the people. There is a need for a reform of our administration of litigation, including lawyers' contracts, that takes into account the standpoint of the people using the system. The JFBA is working to promote improvement in the administration of civil litigation from this point of view.
61. The third topic of reform is the system of appointing justices to the Supreme Court. The Supreme Court justices are appointed by the cabinet from judges, prosecutors, lawyers, legal scholars, etc. However, in practice, the appointments are made by the Supreme Court justices themselves and a very limited number of cabinet members, in a process strictly conducted behind closed doors. This system must be replaced by one that is more transparent and democratic. The JFBA has undertaken a reform of its own system of recommending candidates for Supreme Court appointments. In place of its former system, which lacked transparency, it has adopted a system of recruiting candidates from bar associations across the country and voting on their recommendations, on the basis of committee hearings. Certain information from these hearings are publicly announced. This system must be used as a lever for undertaking reform of the entire system of appointing Supreme Court justices.
62. Japan has a system by which voters can approve or disapprove Supreme Court appointments. However, this system is woefully ineffective, characterized by a general unavailability of information on the justices' records. The JFBA has recommended reform of this system and the way it is conducted.
63. The final need for reform involves strengthening our ties among the people. The JFBA is continuing its efforts to expand its base of support among the general population through the mass media, legal advice services provided by bar associations and public information activities.
64. he Basic Principles on the Role of Lawyers specifies the importance of insuring that all persons receive a fair trial and effective legal services, and insuring the freedom and independence of the legal profession as the necessary precondition for providing that kind of service. The proper functioning of the attorney system and the promotion of the use of attorneys by citizens has a major impact on improvements in the functioning of the judiciary, and, in turn, contributes to the realization of a just society.
65. The following concerns what the JFBA has done and is doing to realize the ideals of the Basic Principles on the Role of Lawyers.
66. Put in an abstract way, the basic mission of lawyers is to "protect basic human rights and realize social justice," as specified in Art. 1 of the Practicing Attorney Law. More specifically, the following items bear consideration:
(1) Protection of Human Rights
67. The first mission of a lawyer is activities in defense of human rights. As the preamble to the Universal Declaration of Human Rights states, "Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world."
68. Japan's bar associations and lawyers have played an important role through such activities for the protection of human rights as bringing about retrials of persons wrongly accused of capital crimes and under sentence of death, which resulted in not guilty judgements, a variety of pollution damage suits, suits on behalf of victims of damage from pharmaceuticals, etc.
69. Human rights has become a matter of international concern. The sweeping international changes now in progress, as former patterns of contention disappear, need to be turned into a history of the establishment of human rights. At its 31st annual convention on human rights held in Kobe in 1988, the JFBA adopted the following resolution:
70. "In order to put an end to human rights violations such as these in our country, complete implementation of the ICCPR and other human rights documents, together with the establishment of a system for the international monitoring of human rights protections by nations has become necessary. We are now at the stage for taking an international view of human rights, and putting into practice international measures for their protection."
71. Following this resolution, the JFBA held its first international human rights seminar in December, 1989, and has since sponsored numerous international assemblies and seminars on international human rights law every year.
72. In the last war, Japan was the cause of enormous human losses and destruction in other countries. But since the end of the war, it has failed to clearly indicate its repentance of these deeds. Its single-minded drive for economic growth has had harmful effects on the environment and on human rights in other countries. Japan's bar associations must serve to establish a clear legal responsibility for injuries done to individuals during wartime.
73. The recommendations by the JFBA in January 1995 concerning former military comfort women was one action taken toward this end.
(2) Lawyer as Profession
74. The lawyer is a professional who cannot simply regard his job as a livelihood. As a professional who has acquired special skills in an established field of knowledge, he is bound to use those skills in the service of many people who need them. The lawyer's role is to secure the people's right of access to the courts and the rights of suspects and defendants in criminal proceedings, as they are protected by the Constitution and international human rights law. It is therefore expected of lawyers and bar associations that they insure that criminal defense activities are adequately provided, that legal protection is given the socially disadvantaged and that ethical standards are strictly observed, lest the confidence placed in them by clients be betrayed.
(3) Useful and Easy-to-Use Legal Counsel
75. It is necessary that all lawyers have the necessary specialized knowledge and experience to meet the demands of clients correctly, that is to say, to be useful to them. It is particularly necessary to acquire specialization in many fields, to meet the increasing complexities of society and internationalization.
76. Lawyers must also be available, so that clients can easily pick a lawyer suitable for them, with confidence. For that reason, adequate information about the lawyers should be made available to the public, their fees should be stated clearly and those fees should be reasonable. Adequate legal aid should be provided, and legal counseling services and countermeasures for increasing the availability of lawyers should be promoted.
77. It is also necessary to do away with the image of a lawyer as having special privileges, and to promote ethics regarding the attorney-client relationship, to improve the respect that people have for lawyers. In recent years, emphasis has been placed on informed consent in the doctor-patient relationship. There is a parallel need regarding the attorney-client relationship, for example, in regard to giving adequate explanations concerning lawyers' fees and the way that cases are handled. There is a need to establish basic rules for giving adequate explanations in all phases of the relationship.
(4) Need for Activities by Private Legal Specialist Organizations for the Reform of Legal and Social Systems
78. It is generally recognized that Japan is a bureaucratically-led society. At present, Japan's judiciary and executive both are the subject of various types of criticisms from within and outside the country. As private organizations of legal specialists, independently run bar associations have much potential for dealing with these criticisms by confronting the bureaucracy and helping to make Japan a more international society. Examples of such contributions are legislation in the fields of Product Liability Law, Securities Exchange Law and Anti-Monopoly Law. In addition, lawyers and bar associations must aim for systemic reform through civil litigation in various fields. Japan's lawyers and bar associations traditionally view themselves as outsiders who stand opposed to the government mandarins. It behooves us to make use of this tradition to respond to the trust of the people.
79. Besides this, lawyers currently have a major role to play in insuring that competition is conducted according to fair rules, as "administrative guidance" progressively removes the opacity of Japan's markets and opens them up to outside scrutiny.。
(5) Securing Self-Autonomy for Lawyers
80. Because of the nature of their job, lawyers sometimes defend critics of national institutions. It is necessary to insure the ability of attorneys' activities on behalf of defending the rights of such clients. Therefore, it is up to the state to insure a high degree of independence on the part of lawyers. Thus, there must be wider use among the countries of the world of Japan's original system of bar associations maintaining lawyer registration records and exercising the power to discipline attorneys, with no control by the state.
81. However, it goes without saying that, in view of the fact that the autonomy of lawyers is founded on the confidence of the people in the attorney's profession, the exercise of the right to discipline should be justly and swiftly exercised.
(1) Commercialization of the Attorney' s Profession
82. There is currently a trend in foreign countries toward commercialization of the attorney's profession that needs to be pondered. Due to the rapid pace of internationalization of economic activities and lawyers activities, Japan cannot afford to regard this phenomenon as a fire across the river.
83. The essence of this problem is that although the commercial ethic of a service industry is not appropriate for the legal profession, it is nevertheless an unavoidable phenomenon. The lawyer's profession indeed has aspects of a service industry. Because the profession is not immune to the supply-demand principle, the commercialization of attorneys' activities under the pressure of this economic principle are to some degree unavoidable. It is therefore necessary to check the drift toward over-commercialization by adopting requirements for providing pro bono services and establishing rigorous ethical standards. At the same time, as specified in item Four of the United Nations Basic Principles on the Role of Lawyers, the most important thing is that the basic reason for lawyers' existence is to serve the rights, duties and basic freedoms of the people.
(2) Responding to the "Monopolistic Practices" Criticism
84. Because of legal regulations limiting who can practice as an attorney, the services offered by attorneys is a kind of monopoly. All businesses that are regulated have certain aspects that do not favor the consumer. For example, standards for legal fees are set by lawyers alone. The strict imposition of these attorneys fees amount to cartel pricing, from the standpoint of those receiving legal services. All the more so when the population of layers is markedly small in relation to the demand. Also, if, as the result of excessive restrictions on advertising by law firms, adequate information about lawyers does not become generally available, this amounts to a restriction on the freedom of consumers to select lawyers. This, in turn, encourages lawyers to think of themselves as an elite class. If lawyers become complacent in their monopolized practices and fail to do away with unreasonable restrictions, they will inevitably invite a backlash from the people who need their services. Lawyers must make an appropriate response to criticism of this kind.
(3) Attacks Against Lawyers
85. Every year there are numerous instances of harassment against lawyers and civil activists throughout the world. The JFBA has established a Committee on the International Bar Association Human Rights Action Plan to cooperate with support activities in cases of this kind.
85.2. In Japan in 1989, a lawyer, Tsutsumi Sakamoto, his wife and small child were kidnapped by a person or persons unknown, and their whereabouts are still unknown.In 1987, Yoshihiro Mitsui, a lawyer who served as the head of a defense team for a group of citizens campaigning for the banishment of an office of a criminal organization in their community, received a knife wound in his back from a member of that criminal organization.
86. Because attacks against lawyers are by their nature attacks against lawyers are by their nature attacks against the rights of citizens, activities for prevention of these incidents merit serious attention.
87. Art. 30.1 of Japan's code of criminal procedure specifies that "Suspects may retain an attorney at any time." Articles 78.1 and 209 provide that "Arrested or detained suspects or defendants ... can specify an attorney or bar association to request appointment of an attorney."
88. However, Japan lacks a system of state-appointed counsels for suspects. In practice, the vast majority of suspects do not benefit from legal counsel . (There are not even any official statistics on this. It is estimated that of all suspects, around 10% have lawyers.)
89. Art. 1 of the "Basic Principles on the Role of Lawyers " adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, provides, "All persons are entitled to call upon the assistance of lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings." Art. 2 states that, in order to realize this, “Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyer are provided," while Art. 3 says that “Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons." The situation in Japan does not reach these levels.
90. In recent years, there have been a number of innocent verdicts handed down at new trials of former death row inmates. Common to all of the false convictions in the original trials was the fact that suspects who had not had the benefit of counsel were forced to give false confessions under prolonged detention in daiyo kangoku. It was clear that these documents had been taken as reliable by the judges, who then made decisions based on them.
91. It has also long been pointed out by many lawyers and legal scholars that suspects in Japan are treated as if no measures protecting their rights existed, and that the conviction rate, which every year hovers a fraction of a percentage point under 100%, points to a potentially large number of false convictions. This is the basis for the position that Japan's entire criminal trial system has become devoid of substance. It has accordingly been suggested that reform of the justice system, especially in the area of the handling of suspects, is a matter of urgent importance.
92. In September 1989, a JFBA symposium on human rights protections held in commemoration of the fortieth anniversary of the enactment of the Code of Criminal Procedure affirmed that the concerted efforts of Japan's bar associations and individual lawyers is required to carry out the task of reforming and revitalizing criminal trials. For that purpose, it was decided that criminal defense centers or committees would be established within the JFBA and local bar associations throughout the country.
93. This was the background to the adoption by Japan's bar associations of the Duty Attorney System.
94. The Duty Attorney System is run by bar associations in each of Japan's prefectures. It provides lawyers who consult with suspects at their place of detention at their own request or the request of a relative or friend, in principle, on the day of the request.
95. The suspect makes his or her request to a police officer, prosecutor or judge at the pre-indictment detention hearing.
96. Duty attorneys meet with the suspect out of the presence of police officers and other investigators. They give advice on the suspects' rights, the criminal procedure he or she faces, what could be expected to happen, etc. The attorneys may also communicate with the suspect's family or place of work. It must be noted that in Japan, attorneys are not permitted to attend police interrogations.
97. There is no charge for the first visit by the duty attorney. The bar association pays the attorney a small fee for the visit. It is up to the suspect whether he wants the attorney to continue handling his case. If the suspect does want to retain the attorney, but does not have the funds to pay attorney fees, the Legal Aid Association advances funding, although this system is at present inadequate.
98. There are two kinds of Duty Attorney System. In the "rotor" system, attorneys take turns waiting for a call In the "panel system," the bar association recommends candidate attorneys successively, in order of registration. Because the former system is faster and more certain in dispatching attorneys to suspects, it is being adopted by an increasing number of bar associations.
99. This system was adopted after studying the British duty solicitor scheme.
100. The Oita Prefecture Bar Association was the first to adopt the Duty Attorney System in Japan (September, 1990), according to the panel system. The Fukuoka Prefecture Bar Association was the first to adopt the rotor Duty Attorney System. After sending a mission to the U.K. for observation and study, it instituted its own system in December, 1990. Following this, the system spread to bar associations throughout the country. By October, 1992, it was in operation at all 52 bar associations in Japan.
101. It is regarded as an epochal event in the history of movements undertaken by the JFBA that this was accomplished in a mere two years. Each bar association reports to the JFBA, the number of requests made in each month through the police, courts or family members, the number of cases in which the attorneys' visits occurred on the same day as the request or on the next day, the number of cases in which the suspects retain counsel and the number of cases funded by legal aid. This information is now being compiled for the first time.
102. In the U.K., the government leads an investigation into cause when there is a major case of a false conviction, and this results in legal reform. In Japan, however, even after five successive overturnings of false convictions that placed innocent people under sentence of death for up to 34 years, neither the government nor the Supreme Court has shown any inclination to get at the bottom of the causes of these monstrous miscarriages of justice, much less to insure legal reform. The establishment of the Duty Attorney System was one small measure taken by Japan's bar associations in lieu of this reform.
103. The Duty Attorney System has been highly praised by the mass media. Its results have been frequently reported in the newspapers, on TV etc, with the result that it is becoming progressively known among the people. Due to a strong demand from the JFBA, the Supreme Court requested that all courts throughout the country inform suspects of its existence at the time of the pre-indictment detention hearing, when it is determined whether to continue detention following arrest. The police are also cooperative with the system, so that the number of requests for dispatches of attorneys is increasing annually. In 1994 it amounted to 14,004, a number that approaches 20% of all detentions. Of these 14,004 requests in 1994, 4,314 resulted in requests for legal representation, and in 1,684 of these cases, legal aid for criminal suspects was used.
104. Also, the number of attorneys registering for the system (it is voluntary) is increasing. At present, 38% of Japan's 15,000 attorneys are registered.
105. The first activity of the duty attorney is visiting the suspect. This helps prevent unnecessary anxiety on the part of the suspect, and also helps avoid him or her being placed at an unfair disadvantage in regard to family or job.
106. By listening to what the suspect has to say before undergoing police interrogation, the duty attorney can helps to insure that investigators do not obtain written statements against the will of the suspect. Reports have been received from all over the country of cases in which the activities of duty attorneys who were appointed as counsel after the initial interview resulted in the case being dropped without indictment, indictments on offenses for which prosecution depends on the victim's filing of a complaint being dropped as the result of an out-of-court settlement, indictments on lesser offenses than had been indicated by the investigating officials, apparent before-the-fact prevention of false charges and the discontinuation of violent, unlawful or unjust interrogations.
107. Even when it does not tie in to concrete results, the system makes judges and prosecutors more cautious in conducting investigations and making judgements at the pre-indictment stage.
108. Before this system was in effect, many lawyers felt ennui about criminal defense activities, carried out as they were in the framework of a criminal trial system that had become a mere facade. This tended to make lawyers distance themselves from criminal cases. However, with the institution of this system, the number of opportunities to handle criminal cases from the pre-indictment stage has increased. It has been confirmed that this has had positive effects, with the result that the tendency of lawyers to shun criminal cases has been checked. Also, as bar associations systematically involve themselves with this system, lawyers have discovered a new ambition to cooperate together to reform the status quo.
109. The Duty Attorney System also serves a major role in protecting the rights of foreigner suspect. One measures of the growing international character of Japan's economy is shown by the number of foreigners coming to Japan, which has been on the order of 3-4 million annually in recent years. The number of foreigners involved in criminal cases is also increasing. In 1993, the total number of arrests was 342,847, of which 10,316 were foreigners. In 1993, the number of foreigners found guilty at original trials was 4,760 (these figures are from the 1994 police white paper).
110. In 1994, the Duty Attorney System dispatched lawyers in 1,533 cases in which foreigners were suspects. This corresponded to about 11% of all Duty Attorney System dispatches in that year.
111. Of these 1,533 cases, a high proportion resulted in the selection of defense counsel using the legal aid fund for criminal suspect. In 1994, foreigners comprised a large proportion of the 1.684 cases in which the legal aid fund for criminal suspects was used.
112. All of the problems in Japan's criminal procedures that pose a threat to human rights, i.e., detention in daiyo kangoku, coercion of confessions by investigators, the lack of state-appointed counsel for suspects and insufficiency of human rights protections in the treatment of prisoners, appeared in concentrated form in criminal cases involving foreigners.
113. However, the Duty Attorney System is experiencing great difficulties in procuring interpreters for the many languages involved to accompany the attorneys. In 1994, interpreters for 33 different languages were needed. The interpreters' fees were paid out by local bar associations, which amounted to a major financial burden. From the standpoint of protection of human rights of foreigners, financial assistance from the state for the Duty Attorney System can be considered indispensable.
114. (1)The next objective is to establish some kind of state-appointed or other public defender system for suspects at the pre-indictment stage.
115. At present, Japan doesn't permit public funding for legal aid, in criminal cases at all. As a result, legal aid in criminal cases is run without state support, from bar associations' funds, etc. With the number of requests for duty attorneys rapidly increasing, accompanied by a rapid increase in legal aid-supported cases, bar associations around the country are experiencing major financial difficulties. This stands as a barrier to the further development of the system.
116. In order that Japan reach the standards laid out by the Basic Principles on the Role of Lawyers, it is first of all required that the state provide funding for legal aid for the defense of suspects.
117. (2)It is no exaggeration to note that the Duty Attorney System, is currently being supported entirely by a self-sacrificing spirit among the nation's lawyers. Even granting that a certain amount of volunteerism is unavoidable at the initial stage of establishing this system, this situation is not desirable for the sake of its future development into a stable and reliable institution. In view of the fact that the right to state-appointed counsel at the pre-indictment stage is strongly demanded by international law, the firm establishment of a state-appointed attorney system for suspects, or a public defender system is an interim goal to be greatly desired.
118. (3)At present, about 5% of all cases in which duty attorneys are dispatched are initiated by criminal defence centers or committees of local bar associations without a request from the suspects. These are major cases that are reported in the mass media. This practice can be considered as a positive step.
119. (4)It is necessary that more of the citizenry be made aware of the existence and significance of the Duty Attorney System. To that end, the JFBA has held public gatherings and issued pamphlets in continuing efforts throughout the country. In some regions, special pamphlets for foreigners are circulated. It is necessary to redouble these efforts.
120. (5)The JFBA is studying adoption of an action program on criminal defense practices that includes long-term goals. The adoption and institution of this program stands as a objective for the future.
121. It is held by other countries that Japan's police are dedicated to their profession, bear up under their heavy responsibilities, and are, on the whole, honest. This view has a lot to do with Japan's low crime rate and relatively high rates of arrest.
122. However, criminal arrests are accompanied by an unbroken trail of false charges that result from speculative investigation procedures, confessions compelled by police, the misuse of police authority and such violations of human rights as the use of violence against suspects and the gathering of information on people that exceeds the requirements of investigations.
123. Backed by a centralized system of control and a vast budget, the scale of administrative police activities has increased exponentially, with the result that a widening range of police activities touch on the lives of the people in areas that exceed the bounds of the proper concerns of the police.
124. The problems with Japan's police system thus lie in these areas, where there are insufficient democratic controls over an overgrown police organization.
125. (1) After World War II Japan substantially reformed its criminal procedures under the new Constitution. Torture was prohibited and confessions obtained through torture or coercion were made inadmissable as criminal evidence. Nevertheless, many cases of false criminal charges have occurred, including cases in which innocent people were sentence to death. This is evidenced by the four retrials that exonerated four persons who had previously been condemned to death. The following problems in criminal procedures and criminal division police officers forms the background to this situation.
(2) Problems in Criminal Procedures
126. In order to understand the problems concerned with police criminal investigations, it is necessary to understand the criminal procedures framework within which their activities are conducted. The problems concerned with criminal procedures in Japan are given below. (For details, see "A Report on the Application and Practice in Japan of the International Covenant on Civil and Political Rights" from the JFBA.)
a- Daiyo Kangoku127. Daiyo kangoku, i.e., police custody, is a feature of the criminal justice system which has given rise to a hotbed of coerced confessions. Under the system, unsentenced detainees are held in police station cells rather than detention centers, so that the same agency that is in charge of the investigation of the crime also is also responsible for holding the suspect. Under this system, police officers monitor and control all aspects of the lives of suspects or criminal defendants.
128. The daiyo kangoku system has received severe criticism internationally, from Federation Internationale des Droits de L' Homme (February, 1989), Amnesty International (January, 1991), the Human Rights Committee (November, 1993), the International Bar Association (February, 1995) and Human Rights Watch (March, 1995). (See Chapter 7, "Rights of Detained Persons.")
b- Right to Receive Assistance from Attorneys at Pre-Trial Stage
129. i Attorneys are not entitled to be present during the pre-indictment detention hearing (a procedure by which a judge questions a suspect to determine whether or not to detain the suspect)
130. ii State-appointed attorneys are only available after indictment (See Chapter 5, "Duty Attorney System.")
131. iii Attorneys interviews with suspects are extremely restricted under a system by which investigators can, in accordance with their own convenience, specify day, time and duration of attorneys interviews.
132. iv The right of the lawyer to be present during questioning of a suspect is not recognized.
c-Procedures Concerning Detention of Unsentenced Defendants
133. i The courts' check function on arrest and detention has deteriorated to a very low level. It is common for police to prolong detention for investigations of serious cases by re-arresting and extending detention on minor charges unrelated to the primary purpose of the investigation.
134. ii There is no system for filing complaints concerning arrests (maximum time of detention: 72 hours). For detention (in principle, 10 days, extendable by 20 days, and in cases of insurrection or other special instances, another 5 days) quasi-kokoku appeals and motions to quash detention orders are available, but it is extremely rare that such petitions are granted.
135. There is a system providing for the disclosure of the reason for detention before judge in an open court, but in practice the reasons given or documentation presented are not of satisfactory substance.
136. Bail is only permitted after indictment. Statistics show that 3 out of 4 people continue to be held through sentencing. Those who are freed on bail must pay very high bail bonds.
137. iii Courts give extremely loose interpretations of "probability that evidence will be concealed or destroyed," which is one of the grounds for detention. Accordingly, the system of detention, which is supposed to insure that the suspect will be available for trial, has become an instrument of investigation, which in turn is distorted into a process of obtaining confessions. Suspects undergo interrogations in closed rooms that are sealed off from the eyes of the outside world, subject to no legal checks or monitoring by an appropriate agency.
138. iv In the vast majority of cases, complaints and accusations against investigating authorities for illegal acts almost never lead to indictments. A person who makes a complaint or accusation may apply to a court for committing the case to a court for trial. However, this system (called “FUSHINPAN") is virtually non-functional.
139. v The system of state compensation that identifies responsibility for unlawful detention, arrest or trial procedures does not function at all as a remedy for victims of these abuses.
d- Criminal Trial Procedures
140. i Written statements of confession continue in fact to be the "king of evidence." It is rare that the voluntary nature of these statements is denied.
141. ii Because defense attorneys are not allowed to demand that prosecutors disclose the evidence in their possession, and lawyers are not always able to adequate by conduct cross-examination, there have even been instances of evidence that demonstrated the innocence of the accused being hidden for years and decades after capital convictions, only to emerge under pressure of public opinion in retrials, leading to the exoneration of the accused.
142. iii Despite the fact that the exclusion of hearsay evidence is a principle of the Constitution and the Code of Criminal Procedure, wide-ranging exceptions to the principle are embodied in law, and exceptions are readily granted in trials. The result is that the criminal trial procedure in Japan is known as "trial by written statement." A conspicuous example of the result of this type of trial is convictions based solely on supposed confessions by accessories to criminal acts taken by prosecutors. This type of conviction accounts for a considerable number of false convictions.
e- Treatment of Detainees143. In Japan, suspects who have been arrested are subjected to strip searches in police cells (daiyo kangoku) without warrants. In detention centers and prisons, the anus and the genital area are also inspected. Because of the secretiveness of the police and of detention facilities, the fact that these searches are conducted had not been a subject of public discussion. Now, the practice is being challenged in court, on the grounds that the procedure is an unlawful violation of human rights.
144. The state of medical care for detainees in police cells and in penal facilities is very poor. There is no organized system for care in police cells, and what there is in penal facilities is characterized by an insufficiency of doctors and inappropriate or inadequate care that has been harmful, and, on occasion, fatal to detainees.
ii Treatment in Penal Facilities
145. Priority is given to regulations and secretiveness. Overzealousness in the precise enforcement of rules creates problems in the form of punishment whose severity goes beyond the bounds of common sense and a lack of procedural protections for rights. Prisoners are punished for verbal or behavioral trifles, such as exchanging words with other prisoners, answering back to a guard or failing to assume the formal seiza kneeling posture during cell inspections.
146. There are few instances of complaints of this treatment reaching the outside. Detention facility officials stand in on attorneys' visits with inmates when their treatment at the facility is being discussed. There is no system providing a third party institution for swift handling of complaints or requests.
(3) Problems Connected with Police Criminal Investigations
147. The problems with police criminal investigations in Japan is that they violate human rights in the process of using the daiyo kangoku system to obtain confessions in order to meet a demand from a trial system that is, as described above, unduly oriented toward confessions.
148. The predisposition of the trial system for confessions and the daiyo kangoku system are among the fundamental reasons that have been cited as causing human rights violations, but other reasons that have been cited are a police system that rates itself on the basis of the rate of arrests, weak sanctions against illegal investigative procedures within the police organization, the lack of a system for state-appointed attorneys before indictment, the fact that attorneys' right to be present during police questioning is not guaranteed, the weakness of controls from the outside by judges and prosecutors, etc.
149. The JFBA and regional bar associations around the country have issued recommendations or warnings when human rights violations were found as a result of independent investigations undertaken on request by the subjects of these violations. These investigations are undertaken without charge. They include numerous cases involving complaints about police or criminal detention facilities. To date, the JFBA and regional bar associations have issued over 160 recommendations, etc. to police concerning assaults, body searches, invasion of privacy, interferences with lawyers' access to inmates, illegal arrests, coerced confessions, etc. When recommendations or warnings are given, the results of the investigation are reported to the mass media. These reports are sometimes accorded major coverage. This system serves as an alarm bell to the society concerning illegal acts by the police, and serves as a check on such illegal activities.
150. Police administrative activities are characterized by a breadth that far surpasses the sphere of criminal police activities. Backed by a vast budget, these police activities extend to every area of civil life, bringing an increased danger of the police violating the same citizen's rights that it is supposed to be protecting.
151. Added to this is the fact the democratic controls on the police are inadequate.
152. In order to give an understanding of this phenomenon of expanding administrative police activities, brief explanations are given below of legal doctrine concerning the police under the Constitution of Japan, the organization and budget of the police and actual administrative police activities.
(2) Legal Doctrine and Regulations Concerning the Police
153. The legal system under the Constitution of Japan holds a democratic concept of the police, viewing its existence as being for the sake of the people rather than the state.
154. Under the Constitution of Japan, the Diet (parliament) is the highest organ of state power and the sole law-making organ (Art. 41). The basic law of the police force established by the Diet is the Police Law.
155. Article 1.1 of the Police Law states the law's objective as follows: "The objectives of this law are to insure the management and operation of the police according to democratic ideals and to organize the police to enable it to carry out these obligations efficiently, in order to protect the rights and freedom of the individual and maintain public safety and order." Art. 2.1 states that the responsibilities of the police are, "to assume responsibility for the protection of the lives, persons and property of individuals and to discharge that obligation through the prevention, suppression and investigation of crime, arrest suspects, regulate traffic and in other ways maintain public safety and order." In particular, Art. 2.2 says "police activities shall be strictly confined within the bounds of the obligations given in the previous paragraph. These obligations shall be discharged in an impartial, nonpartisan, fair and neutral manner, and under no circumstances shall there be interference with the rights and freedoms guaranteed the individual by the Constitution of Japan, nor shall police authority be misused."
156. The specific authority of police officers in carrying out the above responsibilities are given not in the Police Law, but in the Law Concerning the Execution of Police Duties. Art. 1 of that law states, "The objective of this law is to specify the means necessary for police officers to faithfully exercise their authority, carry out their responsibilities for the protection of the lives, persons and property of individuals, as specified in the Police Law (1954, Statute No. 162). The means specified in this law shall be used to the minimum degree necessary to fulfill the objectives in the previous paragraph, and shall in no circumstances be misused.
(3) Organization of the Police, Its Operation and Budget
a- Organization and Operation
157. Japan's police organization consists of a national police force, the National Police Agency, and prefectural police forces, including the Tokyo Metropolitan Police. However, although these prefectual police forces are autonomous in form, all police officers above a certain level are national public officials paid from the national treasury, and their numbers are specified by order from the government or the Prime Minister's Office. The National Police Agency both in law and in practice is in charge of the personnel affairs of the nation's approximately 260,000 police officers, and it uses a budget of approximately 3.4 trillion yen for the total administration and control of the police.
158. The Commissioner-General of the National Police Agency is a member of the conference of administrative vice-minister in each ministry and government office. As such, he participates in supreme decision-making of the administrative bureaucracy. In addition a relatively large amount of NPA employees are transferred to work at the Cabinet Secretariat, Cabinet Counselors Office on Internal Affairs, the Cabinet Information Research Office, the Cabinet Public Relations Office and other offices. Accordingly, the supposed political neutrality of the police has become questionable. The Commissioner-General of the National Police Agency, a national police force, also has the authority to control and direct the prefectural police regarding the jurisdictional affairs of the NPA.
159. In this way, there is a very strong coloring of centralization of Japan's police, with a constant danger of its being politicized.
b- Budget160. The budget for the National Police Agency for fiscal 1993 was 231.43 billion yen (to which a supplementary budget was later added, resulting in a total budget of 265.688 billion yen), and the budget for all prefectural police forces was 3.1500578 trillion yen. Taken together and comparing to the population of Japan, the per capita amount of these combined budgets was 28,000 yen (original Japanese version of police white paper, 1994,page 323). The budget for courts in fiscal 1991 was 267.51206 billion yen and for public prosecutors offices, 85.076144 billion yen. The comparative size of the budget for Japan's immense police organization is striking.
(4) State of Administrative Police Activities and Problem Areas
161. a- Increasing urbanization, motorization and the increasingly sophisticated economy of Japan, has led the police, as shown below, to become involve in many aspects of the people's lives, in the name of responding to their needs, in ways that are far removed from the fundamental mission of the police.
162. b- Specifically, these administrative police activities are as follows:
163. i The system of stationing police officers in mini-stations or "police boxes" (koban), whose main functions are patrolling and liaison between patrols, is being developed even further than it already is, on the premise that the system forms the basis for Japan's good public order. In order to increase the effectiveness of koban activities, the police are establishing stations and liaison councils consisting of community representatives, and a "koban counselor system" to give advice to people in the community on their troubles.
164. ii Aside from the above, "general counseling offices" are being established to give counseling or advice on marriage, divorce, money lending or borrowing, transactions involving real estate, homes or goods, prevention of dangerous situations or crime, or other kinds of troubles.
165. iii The police are establishing and actively guiding and assisting crime prevention association in communities, as a means of supplementing police community activities.
166. iv With an awareness that the elderly are prone to fall victim to crime, "long life pilot zones" are being designated to promote the participation of the elderly in anti-crime activities, traffic safety campaigns, etc.
167. v In order to prevent juvenile crime and delinquency and promote the wholesome development of youth, police officers and juvenile guidance officers are setting up outdoor counseling stations to give advice to juveniles, guardians, and are regulating the sale of “harmful publications" etc.
168. Juvenile counseling centers are being established for prevention of juvenile and delinquency and juveniles running away from home, and police liaison councils are being established in the schools and in workplaces in order to stop delinquency of children, students or working youth, and to promote their wholesome development.
169. For the reason that the functions of the home and the community in preventing delinquency are deteriorating, volunteer juvenile guidance counselors are being organized to supplement those functions and active support of these volunteer activities is being given, in the form of training, paying monetary rewards, etc.
170. vi In addition to the above, the police involve themselves in civil affairs in extremely diverse ways, including control of guns and gun violations, control of crimes involving drugs, promotion of wholesomeness of a variety of entertainment enterprises classified as "business affecting public morals" (game centers, night clubs, etc.), establishing safety measures for devices that use projectiles or gunpowder, establishing consumer safety measures, controlling economic crimes and violations of intellectual property rights, traffic safety, natural disasters and accidents, giving assistance to victims of criminal organizations in matters of civil law, controlling criminal organizations.
c- Assistance to Victims of Criminal Organizations Intervening in Matters of Civil Law and Control of Criminal Organizations171. Attempts by criminal organizations to unfairly obtain profits by intruding upon civil disputes or civil affairs, creating a nuisance or using violence or the threat of violence, poses a major disturbance to civic life and corporate activity. As an organization whose basic mission is the protection of human rights, it is the responsibility of bar associations to deal with this problem earnestly.
172. Thus, since 1980, the JFBA has been establishing rescue centers for victims of criminal involvement in civil disputes, and in other ways pressed a campaign against this kind of criminal activity. These activities have put pressure on the criminal intervention in civil affairs.
173. In this way, JFBA activities are characterized by direct confrontations of bar associations and attorneys with yakuza criminal organizations and providing relief to their victims.
174. In order to deal with unjust activities by members of criminal organizations, the National Police Agency proposed a "Law for the Prevention of Unjust Acts by Criminal Organization Members."
175. The objectives of this law are to deal with unjust acts by members of criminal organizations that are difficult to restrict by conventional criminal statutes. It provides for Public Safety Commissions to issue administrative orders to cease acts or orders for the prevention of recurrence of acts. It regulates certain specified demands having a violent character constituting intervention in civil affairs by members of groups designated as criminal organizations that rely on the perceived power of those organizations.
176. This law was passed by the National Diet in May, 1991, and went into effect in March, 1992. Since then, it has proved effective in providing relief for victims of criminal intervention in civil affairs.
177, However, despite the efforts of bar associations and the police against criminal intervention in civil affairs, criminal organizations have devised new ways of to take advantage of changing social and economic conditions. They have diversified, expanded and found more sophisticated ways of profiting illegally.
178. Recently, they have shown a willingness to resort to any means in pursuing their goals, including direct attacks against corporations, the mass media and their officials (there has been a sharp increase in the use of handguns in these attacks), and of obstructionism against attorneys handling civil cases in which criminal intervention is involved.
179. Bar associations must continually strive to counter these unjust and illegal acts with determination, lest we allow our society to become tolerant of the use of violence and threats.
d- Problems Concerning Administrative Police Activities180. The biggest problem with the ever-expanding administrative police activities, backed as they are by a mammoth organization and budget, is that there are no suitable check functions on these activities. The secretiveness attendant upon criminal police activities characterizes administrative police activities as well. Police activities reach every corner of civil life without the people receiving adequate information about it.
181. (1) The police today are a massive organization that, in fact, constitutes a centralized state police system. Its influence extends to every corner of the lives of the citizens, and instances of it touching on the human rights of the citizens are increasing.
182. Within the criminal divisions of the police, there is no end to the daiyo kangoku-dominated system that produces false charges through prejudiced investigations and forced confessions. Human rights violations result from the misuse of police authority, the use of violence against suspects, and wiretapping and other gathering of information on people that exceeds the requirements of investigations.
183. In order to prevent such human rights violations, it is a matter of urgency that criminal procedures, including the daiyo kangoku system, be revised, but more fundamentally, it is indispensable that a system of democratic controls on the police be strengthened. The Code of Conduct for Law Enforcement Officials adopted by the United National General Assembly in 1979 provides as a basic principle that "the actions of law enforcement officials should be responsive to public scrutiny, whether exercised by a review board, a ministry, a procuracy, the judiciary, an ombudsman, a citizens' committee or any combination thereof, or any other reviewing agency." In view of this, it is again a matter of extreme urgency to establish a system of democratic control over the police. The following is an explanation of a desirable democratic system of control of the police.
(2) Disclosure of Information
184. It is necessary that information pertaining to the uses of the police budget, police organization, police personnel and training, etc. be made public.
185. At present, Japan lacks a national information law. Although there are information ordinances in operation at the prefectural level, none of these ordinances affect the Public Safety Commissions (a kind of administrative commission established by the Police Law to oversee operations and management of the police). Thus, without exception, all over the country information concerning police activities and the police system, regardless of its content, is uniformly excluded from rules for public disclosure.
186. The U.S. Freedom of Information Act, the Freedom of the Press Act in Sweden and legislation of other countries show clearly that it is possible and practical to have disclosure of information on police activities, and that it is extremely important to provide for it.
(3) Establishment of a Citizens' Monitoring System
187. Basically, it is indispensable that a system to monitor police activities that consists of citizens be established. Conceivable systems include those consisting of citizens' representatives, an independent police auditing system having remedy functions, a board for examining qualifications of police officers, a policeman ombudsman (ombudsperson), etc. It is necessary that these agencies represent complaints from citizens, monitor police activities, exercise the right of supervision of individual police officers, screen the propriety of police activities and be able to provide remedies for citizens who have suffered injuries as a result of police activities.
188. (4) It is urgently necessary that state parties to the "Code of Conduct for Law Enforcement Officials" give periodic reports on its implementation and that a system of review of these reports be established (see the "Guidelines for the Effective Implementation of the Code of Conduct for Law Enforcement Officials" established by the United Nations Economic and Social Council in May, 1989.)
189. (1) The JFBA has a strong interest in the situation of human rights of people under detention in Japan. It has released numerous reports on the subject, including the following that have been translated into English:
- a- "A Report On the Application and Practice in Japan of the International Covenant On Civil and Political Rights" (submitted to the Human Rights Committee in 1993)
- b- What's Daiyo Kangoku? (1989)
- c- Prisons in Japan (1992)
190. Reports on studies of Japan's criminal investigation procedures with particular attention to the daiyo kangoku system were released by the Federation Internationale des Droits de L'Homme in February, 1989, and by Amnesty International in January, 1991. Both of these reports stated that the daiyo kangoku system is not consistent with the ICCPR.
(2) Recommendations of the Human Rights Committee
191. On October 27 and 28, 1993, the Human Rights Committee held its third review of the report from the Japanese government on circumstances pertaining to the implementation of the ICCPR and announced its recommendations on November 4.
192. Concerning the treatment of unsentenced detainees, the Committee stated as follows: "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 to be compatible will all requirements of the Covenant and, in particular, that all of the guarantees relating to the facilities for the preparation of the defense should be observed."
193. The recommendations say that fundamental corrections, including abolition of the daiyo kangoku system, are necessary to insure that the functions of investigation and detention are completely separated, and that there is an urgent need to correct the situation in which suspects have no right to ask for a state-appointed attorney.
194. Concerning treatment of detainees, the Committee recommends "that the conditions of death row detainees be reconsidered; and that preventive measures of control against any kind of ill-treatment should be further improved."
195. To comply with the first part of these recommendations, there is a need to review the present strict regulations concerning visits and communications by death row detainees, and to revise the Penal Facilities and Police Detention Facilities bills that the government has repeatedly tried to enact.
196. The latter recommendations ask for an effective rescue mechanism against human rights violations not only for death row detainees, but for all detained persons. These points are covered in section 2, "Requesting Remedies for Human Rights Violations," below.
(3) Recent Investigations by International Human Rights Bodies197. More recently, other investigations of Japan's criminal detention system have also been conducted by well-known international human rights organizations.
198. In February, 1995, the International Bar Association (IBA) released a report concerning Japan's criminal procedures and the rights of unsentenced detainees. This report's recommendations included abolition of the daiyo kangoku system, adoption of a system of pre-indictment bail, introduction of a system of state-appointed attorneys, etc. On February 14, 1995 the JFBA and the IBA jointly held a seminar on pre-indictment and trial proceedings. Legal specialists from the Philippines, South Korea, Malaysia, Australia and Scotland participated in this consideration of pre-trial and trial procedures in Japan and other Asian countries, from the standpoint of international human rights law.
199. In March, 1995, Human Rights Watch released a report on Japan's prisons. This report noted that in many ways the human rights situation of inmates of Japan's penal institutions are characterized by excessive concentration on order and discipline to a degree that does not accord with international standards of human rights.
200. All of these reports were based on investigations carefully conducted by leading non-governmental international human rights organizations. It is up to the government to honor their recommendations.
(4) Recent Executions
201. It was reported that two condemned prisoners were executed on December 1, 1994, at the Tokyo and Sendai detention centers, respectively. Prior to this, three prisoners were executed in March 1993, and four were executed in November, 1993.
202. The JFBA has called for a national debate concerning on the question of whether the system of capital punishment should continue, and has demanded that the government suspend executions for the time being.
203. On November 4, 1993, the Human Rights Committee recommended to the government of Japan that it become a party to the Second Optional Protocol to the ICCPR and take measures towards the abolition of the death penalty and improve its treatment of capital and other detainees.
204. It is not persuasive to many citizens that the government ignores these recommendations, continuing to carry out executions offering only the justification of "maintaining order in the country."
(5) Violence Used by Investigators Against Suspects, and Other Human Rights Violations
205. Numerous reports of assaults on suspects by police officers have been received. In addition to these, however, there have been two recent reports of such assaults by prosecutors.
206. Prosecutors are themselves legal professionals, who are expected to fulfill the role of watchdog against illegal acts by police officers in the course of their investigations. The occurrence of incidents such as these leave one with the impression that there exists a culture of tolerance of the use of violence by law enforcement officials, for the sake of obtaining confessions.
207. In another incident, it was discovered that an officer of the Fukuoka Minami police station had written a false statement in the name of one suspect in custody to obtain a warrant from a judge to arrest another suspect. The suspect in whose name the forged document was written was a woman who had been arrested on suspicion of violation of the Cannabis Control Law. She had been instructed to sign and stamp with her personal seal blank sheets of paper. The officer wrote false statements on these pages, incriminating the other suspect, a man arrested on suspicion of violation of the Stimulant Drug Control Law. On January 18, 1995, the officer was indicted by the Fukuoka District Prosecutor's Office on suspicion of forgery and use of an official document with seal affixed. This incident demonstrated the very broad discretionary authority a police officer has in determining the content of written statements.
(6) Assaults by Prison Guards
208. There have been a number of recent reports of assaults against foreign detainees.
209. On November 1, 1994 suit was brought before the Tokyo District Court over two cases of assaults by guards against unsentenced foreign detainees that occurred between November, 1993 and August, 1994 at the Tokyo Detention Center.
210. In one of the cases, besides being assaulted, the plaintiff, "A.," an Egyptian, was smeared with what appeared to be human excrement and locked in an exceptionally filthy "special room." He was spoken to abusively, called a "beggar," and warned against "insolence to Japanese." As a result of the assaults, A. suffered loss of hearing in his right ear and dislocation of his spine.
211. In the other case, "B.," a Nigerian, was assaulted three times, causing back pains, deterioration of vision, loss of a molar and other disorders for which he is still receiving treatment. B. was frequently subjected to extremely offensive racially discriminatory verbal treatment, such as calling him "gorilla." There are a number of reasons leading to the inevitable conclusion that these cases of assaults by guards were not isolated cases, but are rather part of a consistent pattern of disregard for the human rights of detainees at this facility. They include (1) the gravity of the assaults themselves, (2) the racial nature of the remarks by the guards and (3) the fact that the incidents occurred repeatedly, within a short period of time.
212. In January 1995, it was reported that on August 28, 1992, a 47-year-old prisoner at the Jono Medical Prison in the city of Kita-Kyushu was kicked to the ground by the chief male nurse, who was an employee of the prison, and then kicked in the stomach and otherwise assaulted. The prisoner complained of abdominal pain that day and died the next.
213. Immediately after the incident, the prison warden conducted a visual post-mortem examination in place of a prosecutor. The remains were cremated without a judicial autopsy being conducted.
214. This incident came to light in March, 1993, as the result of a complaint filed from within the facility. In June of that year, papers treating the case as an assault were sent to the public prosecutor's office. In November, the case was settled with the imposition of a fine of 200,000 yen. The prosecutor explained that the link between the assault and the death was unclear. The inescapable suspicion is that the prosecutor was covering up for the crimes of associates.
(7) Assaults by Immigration Officers
215. In May, 1993, several Iranian men (more than ten) were assaulted by a group of officers in Building No. 2 of the Tokyo Immigration Bureau. One of the Iranians, "M.," suffered serious injuries, including a compression fracture of the first lumbar vertebra, requiring one month of treatment. Following this, he was kept in isolated confinement, his hands held behind his back by handcuffs, for two weeks. Suit was brought against the state for compensation for this in October, 1994, but M. was forcibly repatriated in December of the same year, while this litigation was in progress.
216. In November, 1994, again at Building No. 2 of the Tokyo Immigration Bureau, a Chinese woman, "T.," was pulled by the hair, hit repeatedly in the face and then kicked in the head, during questioning concerning overstay of visa. This assault occurred in the presence of many other foreign women. It resulted in internal facial bleeding, contusions on the head and elsewhere and deterioration of vision in the left eye. The Immigration Bureau acknowledged the assault, but the officer who was mainly responsible for it received an extremely light penalty of 2 months reduction of pay.
217. On December 19, 1994, an article in the Mainichi Shimbun contained specific testimony to support the claim that assaults against foreigners by officers of Building No. 2 of the Tokyo Immigration Bureau had become institutionalized.
218. The situation of the human rights of persons under detention in Japan is dismal. It appears that human rights violations occur not as aberrant acts by individual public officials, but arise naturally from a culture that disregards human rights and is also racially prejudiced.
219. Administrative officials and public prosecutors do not adequately discharge their responsibility to implement relief measures for victims of human rights violations. To the contrary, they cover up for the violators in the vast majority of cases.
220. Besides this, administrative and criminal dispositions of violations are startlingly light, a situation that reinforces the unwillingness of officials to take seriously their responsibility to redress human rights violations.
221. Detention officials are extremely resentful of detainees who assert their rights by bringing their complaints to trial, or by other means. They openly retaliate against these detainees by imposing hardships, such as placing them in isolation for long periods.
222. Although the right to appeal to the courts is allowed, the conservatism of judges makes judicial remedies very difficult to obtain in general. This situation has recently shown some improvement, with an increasing number of plaintiffs winning their cases. However, unlike the North America or Europe, Japan has no independent institutions to secure remedies for victims of human rights violations.
223. The establishment of such an institution is among the reforms advocated by the JFBA. It has offered as a counter-proposal to the Penal Facilities Bill advocated by the government a "Treatment of Criminal Detainees Bill." This and other JFBA proposals provide for effective administrative complaint-filing procedures and the improvement of such judicial remedies as civil and administrative suits and habeas corpus procedures. The establishment of a non-judicial, third-party body independent of the department of corrections would provide summary human rights enforcement measures.
224. The recommendations by the Human Rights Committee mentioned above are valuable for the moral weight they add to persuade the government to put into practice these JFBA proposals.
225. The words daiyo kangoku, which mean "substitute prison" in Japanese, have gained currency among people of conscience around the world as a symbol of Japan's backward human rights record.
226. The government has sought to perpetuate this into the next century. The bills for Penal Facilities and Police Detention Facilities laws were first proposed in 1982, but they died with the dissolution of the lower house in 1983. Re-introduced in April, 1987, they made dangerous progress by reaching the stage of Diet (parliament) deliberation, but were ultimately shelved, with the dissolution of the lower house. Re-submitted in 1991, the bills were again killed by the dissolution of the lower house in July, 1993.
227. In the fall of that year, the Japanese government was formally notified by the Human Rights Committee that the two confinement bills violated ICCPR because of the daiyo kangoku system and their handling of death row prisoners. This has not discouraged the Ministry of Justice and the National Police Agency, however, in their determination to pass the bills. They are lobbying legislators in preparation for a fourth try to pass the bills, with the claim that the United Nations has recommended improvement, not abandonment of daiyo kangoku, and that it recognizes the system.
228. In a report to the Human Rights Committee, the JFBA has analyzed the problems with these two bills. In November, 1994, it published a booklet (in Japanese) entitled, "The JFBA's Treatment of Criminal Detainees Law: A Humane System of Treating Prisoners." This booklet criticizes the government's proposals from the standpoint of international law and presents the JFBA's alternative proposals. The problems with the government's bills may be summarized as follows: (1) They make daiyo kangoku into a permanent institution; (2) they do not make the reasons restricting the rights of detainees explicit and the restrictions they impose are too broad; (3) they give discretionary powers to detention officials that are too broad; (4) they provide for no effective means of remedy against human rights violations, such as third-party institutions or ombudsman systems such as are found in Western countries, etc.
229. (1) Ratification of the First Optional Protocol to ICCPR (Japan has not ratified this instrument.)
230. (2) Ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Japan has not ratified this instrument.)
231. (3) Complete implementation of the Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of ALL Persons under Any Form of Detention or Imprisonment.
232. (4) The booklet, "Making Standards Work," that was prepared by Penal Reform International (a non-governmental organization with U.N. consultation status) for an international conference it held in November, 1994, is a valuable commentary on the Standard Minimum Rules for the Treatment of Prisoners. It is proposed that this booklet be disseminated internationally to promote prison reform.
233. (5) Each country has its own reasons for not adopting international standards.
234. To those countries having inadequate facilities for financial reasons, international support through official development assistance, etc. is important.
235. In countries like Japan, where the obstacle to protecting the human rights of prisoners lies in inadequate understanding among the people, the government has an obligation to inform its citizens of the importance of insuring the rights of prisoners.
236. It is therefore proposed that a system for the creation of programs to implement international standards be established. This system should be designed to meet the particular conditions of each country and provide for reports to a suitable United Nations agency on the programs.
237. (6) It is desirable that the Committee Against Torture established by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment follow the example of the European Committee Against Torture in proposing and campaigning for the adoption of a set of optional protocols to the Convention that add visiting and monitoring functions.
238. Following its adoption in 1985 of the Nairobi Forward-Looking Strategies, the United Nations has redoubled its efforts to eliminate violence against women. On December 20, 1993, it adopted the Declaration on the Elimination of Violence Against Women.
239. Japan has many problems of violence against women in the areas of abusive husbands, sexual harassment, rape, pornography, trafficking in women and children, sexual abuse of children and sex tours. In addition, the enslavement by the Japanese Army prior to and during World War II of foreign "comfort women" remains unresolved. However, there continues to be a low level of awareness in Japan of the link between sex discrimination and violence against women. There is very little data from reliable, broad-based surveys that would be useful in assessing the prevalence of crimes of violence against women. This makes it impractical to devise programs for dealing with sex discrimination as a means of eliminating such crimes.
239.2. The problem of violence against women has been compounded by a disturbing lowering of the age of victims, so that it is now intertwined with fundamental violations of the rights of children.
240. With a view to preventing crimes, both administrative programs and legal measures are urgently needed to deal with these problems, such as surveys to provide data on the situation of violence against women, the establishment of measures for the relief of victims, the toughening of penalties for offenders, education of violent offenders on the equality of the sexes and training of law enforcement and other officials.
240.2. Following are reports on the general state of crimes against Japanese women, violence against wives, trafficking in women, the sexual abuse of children, and the problem of "comfort women." Concerning the latter, please refer to the JFBA's "Recommendations on the Issue of Comfort Women" (January, 1995).
241. As mentioned above, there is little data available that is of use in making an accurate determination of the state of violence against women in Japan. However, the following material suggests that the situation is quite serious.
242. The third report submitted by the Japanese government to the UN Committee on the Elimination of All Forms of Discrimination against Women in November, 1993 says that the number of victims of major crimes under the Penal Code identified as women had increased 10% over 20 years before, and that for theft, the number had doubled, but that for rape, the number had decreased from 4,677 victims in 1972 to 1,504 victims in 1992.
243. The decline in the number of known rape victims as identified by the police white paper covers only the number of cases reported to the police, which is unfortunately only the tip of the iceberg. It is well known that most rape victims remain silent about this crime.
244. On October 11, 1989 the Sankei Shimbun carried the following report: "A former factory worker, aged 20, arrested on suspicion of entering a private home, attacking a woman and committing indecent assault resulting in injury, confessed upon questioning to having committed approximately 100 assaults against women over several years before being caught. However, the number of cases for which reports from victims had been received amounted to only a little more than ten."
244.2. The Tokyo Rape Center, a private telephone counseling service, reported giving counseling in 2,896 cases in the 5-year period from 1983-1988. Of these, 509 appeared to be classifiable as cases of rape or indecent assault, but only 102 of the victims had reported the assaults to police.
244.3. The above suggests that there are large numbers of undisclosed cases of sexual assault and that one must estimate the actual number of cases to be several times that of the reported number. The government's own report of November, 1993, mentioned above, notes that, "It can be inferred that the number of female crime victims includes cases that are not reported, and therefore are not known. It can be supposed that these cases include domestic violence."
245. Concerning prostitution-related offenses, the government report cites 6,516 arrests under the Anti-Prostitution Law and related statutes, or 6,315 under the Anti-Prostitution Law alone. Among the latter, the main offenses consisted of 477 arrests for soliciting (Art. 5), 3,285 for procuring (Art. 6), 2,311 for making contracts with people requiring their prostitution (Art. 10) and 143 for providing a place for prostitution (Art. 11). The arrests for violations of statutes related to prostitution were 122 arrests under the Child Welfare Law, 63 under the Employment Security Law and 16 for Penal Code violations.
246. According to the crime statistics for 1993 from the National Police Agency, there were 808 penal code violations (exclusive of traffic accidents) in which wives or female companions were victims, and 250 such violations in which the victims were husbands or male companions. This amounts to 3.2 times more female than male victims.
247. Taking the same relationships among the data for homicides, there were 96 cases in which the victim was a wife or female companion and 78 in which the victim was a husband or male companion, so the ratio of female victims was 17% greater than that of male victims.
248. In the case of assaults, injury, intimidation and extortion, the victims were female in 541 cases and male in 85 cases, amounting to a rate of victimization of women 6.3 times as great as of men.
(1) State of Victimization
249. Among all marriage-related cases (including divorce) brought before family courts in fiscal 1991, the second most common reason for complaints by wives was violence committed by husbands, and the fifth most common reason for wives was mental cruelty. The combination of these two factors of physical and mental abuse far surpasses in sum the number one reason for wives' complaints, that of personality conflict.
250. In Japan, slightly less than 10% of all divorces are mandated or mediated by courts. There are no data concerning the more than 90% of divorces that are mutually agreed upon.
251. A questionnaire survey on divorce conducted by the JFBA in April, 1993 that received 1,358 responses found that violence by the husband as the main reason for divorce was the third most common reason among both court-settled and mutual agreement divorces, with a higher rate shown for court-settled cases alone. Among both court-settled and mutual agreement divorces, the second most common reason was unfaithfulness of the husband, and the fourth-place reason was the husband's abandonment of the household, which are both forms of mental cruelty. In this sense, it can be said that violence against women is the main reason for divorce, even among mutual agreement divorces.
252. A temporary telephone hotline on spousal violence was established by the JFBA in April, 1994. From a total of 1,255 calls that were received by 44 local bar associations, 377 calls were actually concerned with spousal violence. These cases concerned beating, kicking, dragging by the hair, threatening with knives, choking, forced removal of clothing, forced sexual intercourse, etc. Injuries received ranged from light to serious, including contusions, cuts and lacerations requiring stitches, burns, broken bones, bleeding from the ear, ruptured eardrums, cerebral concussion, etc. Medical treatment was required in 179 cases.
253. Police were notified in 89 cases (26%). However, the police responded in only 37 of these cases, suggesting that spousal violence that is recognized by the police is no more than the smaller part of the actual situation. 148 of the callers fled their homes to escape their husband's violence. Of these, about 60% went to their parents homes, but only 3 went to a public agency.
254. Since the main reason for divorce, of which there are 180,000 cases each year, is violence by husbands, the potential number of cases of violence by the husband against the wife is surprisingly high.
(2) Preventive and Relief Measures Needed
255. As indicated above, the response by police does not adequately fulfill criminal law's objectives of prevention and punishment.
256. Each of Japan's prefectures has emergency shelters, called "women's consultation offices," that can receive women fleeing violent husbands. However, these shelters were established under the Anti-Prostitution Law of 1956, for the purpose of temporary protection and rehabilitation of prostitutes. They are in any case, underfunded, understaffed and restrictive about admissions. The net effect is that women suffering from an abusive husband who are not able to flee to the home of a relative often have no option other than to stay with their husbands. Thus, there is a need for increased public support of households supported by mothers alone, to insure the stability of the lives of both wives and children.
257. Japan lacks such instruments as the U.K.'s Domestic Violence and Matrimonial Proceedings Act, or the system under state law in the U.S. whereby courts act in cases of domestic violence by issuing police-enforced orders, including the ordering of violent husbands or companions to leave their residences. Japan needs to look to these systems to introduce new legal measures of its own that will provide effective relief from domestic violence.
(1) The Situation
258. It is estimated that 70,000-80,000 women from Thailand, the Philippines and elsewhere enter Japan every year to work in Japan's flourishing sex industry. Although reliable data on trafficking in women is not available, criminal and civil cases involving Southeast Asian women make it clear that Japan continues to victimize foreign women through forced prostitution. The following information was supplied by two privately run shelters for foreign victims of Japan's sex trade.
259. The HELP (House in Emergency of Love and Peace) Center, located in Tokyo, established an emergency shelter capable of accommodating 15 women at once in 1986. By December 31, 1993, it had provided shelter to 1,544 foreign women. Of these, 71% were from Thailand. "House for Women: Saalaa" is located in Kanagawa prefecture, which borders on Tokyo. It has provided protection to 132 victims of forced prostitution since its establishment in 1992. The victims' average age was 24.7, and they included 19 minors. Some of the women had been informed they would engage in prostitution, but a great many had come to Japan having been told they would work in factories, as nursemaids or waitresses. Most of the brokers who bring these women to Japan are Thai nationals. Other brokers are Malaysian and Singaporean.
a- Ways of Entering Japan
260. There are various ways of getting these women into Japan. They are coached on how to sneak through the immigration line. Some enter through a third country, whose visitors are scrutinized with less care by Japanese immigration officials. Some are given false passports of a country that does not require a visa for Japan. The average cost of a false passport is 800,000 yen, an expense that is added to the debt of its user.
261. Upon their arrival, victims of forced prostitution are met by Japanese recruiters for the sex industry, Thai brokers, etc., who bring them under close guard to apartments or dormitories.
262. In addition to forced confinement, the women's identification papers, return airline tickets, etc. are confiscated to insure that they will not attempt to flee.
262.2. At this point, they are told they have been sold for from 3 to 3.5 million yen, "debts" that they must pay off by "working." Very few of them or their families actually receive any part of their sales price, which is determined in the course of transferring them between traffickers.
263. The women are forced into prostitution to fulfil their "debts".
b- Ways of Forcing Women to Work as Prostitutes
264. i The bars, clubs or other establishments offering prostitution charge customer 30,000-35,000 yen for overnight stays or 20,000-25,000 yen for short stays. The money is not paid to the woman, but to the "mama" or proprietor, who deducts the amount from the woman's "debt," less a 5,000-yen charge.
265. ii Prostitution takes place not on the premises, but in a nearby "love hotel," according to a cooperative system.
266. iii Expenses for food, clothing and cosmetics are added to the women's "debts." These "debts" are also raised with fines that may be imposed for complaints from customers, or even as a penalty for gaining weight. The women are commonly threatened with being sold off to a remote location.
267. iv When the women have been in one establishment long enough to substantially reduce their "debts," they are re-sold for 1-2 million yen on the pretext that the customers have tired of them. Cases have been reported of women being given AIDS tests just before being re-sold, then being handed over to the purchasers with a paper certifying them "AIDS tested," before the test results were received.
268. v When the victim becomes ill, her "owner" contacts the broker, who may take her to the embassy of her country and abandon her there. In such cases, the embassy turns the woman over to a volunteer group that will care for her and arrange for her return to her country.
269. The above are typical cases, which can only be classified as trafficking in women.
(2) The Roles of Government Agencies Handling Immigration
270. Japan has no comprehensive program for dealing with trafficking in women. Following is an examination of the ways individual government agencies deal with this problem.
a- Ministry of Foreign Affairs
271. The Ministry of Foreign Affairs is making efforts to improve technology for confirming the validity of passports before visas are issued, but the measures undertaken so far are insufficient. Far more stringent procedures for the issuance of visas will be required to sever the supply lines of the human traffickers at their sources.
b- Ministry of Justice
i Examination Procedures for Landing
272. There must still be inadequacies in the posting of immigration officers at disembarkation points, because numerous ploys have been used successfully by women and their procurers to get the women past immigration officials undetected. Neither are there enough Japanese officials at the embarkation points who are well-versed in the language and conditions of those countries. In 1991, entry was refused in 6,738 cases, in 1992, the number was 5,161, and in 1993, it was 2,735. This decline in the number of refusals raises doubts about whether investigation procedures are being improved.
ii Activities by the Civil Liberties Bureau
273. The Justice Ministry's Civil Liberties Bureau has a program of human rights counseling for foreigners. Due to the language barrier and other problems, this program does not function effectively.
c- Ministry of Health and Welfare
274. Activities for the protection and rehabilitation of women in accordance with the Anti-Prostitution Law is the responsibility of the Ministry of Health and Welfare. The system established by the Anti-Prostitution Law includes counselors, women's consultation offices and women's shelters. However, unawareness by foreign women of the availability of these facilities and limitations of the system itself prevent the system from adequately fulfilling its role.
275. Data on arrests relating to prostitution are given above. These statistics do not distinguish victims of forced prostitution. In many cases, human trafficking involves yakuza, or established criminal organizations. The eradication of human trafficking requires cracking down on the brokers and controllers of the system and a forward-looking approach by the police to protect their victims.
(3) Required Measures for Preventing Crime and Relief of Victims
a- Government Agencies in Japan
276. i The police, Immigration Bureau, Welfare Ministry and in each local government should mobilize, using leaflets, stickers, armbands, etc. to target airports and other appropriate places, alerting foreign women in danger of being victimized by human traffickers, in their own languages, and providing them with the telephone numbers and addresses of emergency relief facilities.
ii Expansion of Temporary Protective Facilities
277. Volunteer organizations are able to give some assistance by providing temporary shelters. There is a need for expansion of government funding to enable the government to provide comparable facilities.
278. iii Establishment of Stricter Standards for the Issuance of Visas and Point-of-Entry Immigration Procedures
279. In order to realize these standards, it is necessary to increase the number and language proficiency of Japanese embassy officials in Thailand and other Asian countries that supply victims of human trafficking. These officials and also Japanese immigration officials should be proficient in the languages of those countries.
280. iv The Immigration Bureau should provide facilities for accommodating women that are adequate from the standpoint of affording protection, for use when they appear at the Bureau for deportation investigation proceedings. Adequate funding for this purpose should be secured.
281. v Every effort should be made by police and immigration officials to not stop at arrests of the women and their immediate "owners," but to reach higher up to root out the brokers and criminals organizations responsible for the traffic.
282. vi Funding should be provided to establish a comprehensive program of countermeasures involving all the relevant government agencies for the eradication of human trafficking, and to establish an inter-governmental commission charged with overseeing this program.
b- Concerning the United Nations and Other International Institutions
283. i Improve international cooperation in the elimination of the international network of brokers
284. ii In order to completely implement the provisions of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, issue authoritative directives and recommendations to the countries from which the victims of human trafficking originate, the countries into which they are sold and other involved countries.
285. iii The UN should hold symposiums on the eradication of human trafficking in Asia. The cooperation between all the countries involved in this problem is essential to the eradication of human trafficking. It is desirable that the United Nations give serious attention to this problem and to sponsor a campaign for the eradication of human trafficking.
286. iv The Congress on the Prevention of Crime and the Treatment of Offenders should commission the UN Special Rapporteur on Violence against Women to conduct a survey on the situation, to eliminate human trafficking and recommend that each country implement a prevention strategy.
287. (1) In Japan, pornographic scenes on television and in movies are common, and there is a plethora of pornographic videos, pornographic novels and pornographic comic books. All of this material is easily available to children through video shops, vending machines, etc. Pornographic comics and pornographic stories in magazines for children are also common. This situation provides a warm climate for sexual violence, sex discrimination and the commercialization of sex.
(2) Prostitution of Children
288. Very little is known about the extent of prostitution of children. However, there is much anecdotal evidence available.
289. In September, 1993 the manager and employees of a "date club" were arrested by the Kanagawa Prefectural Police under the Child Welfare Law for having forced numerous high school girls into prostitution. Six customers of this club were also arrested under the Juvenile Protection and Guidance Regulation. At the same time, 56 female high school students who had engaged in prostitution were taken into custody by the police. These girls stated to the police that they had become "date girls" out of a desire to earn money, and that they had learned of the club by word of mouth.
(3) The Use of Minors in the Production of Pornographic Products
290. In August, 1993, the National Police Agency arrested the manager of a company that produced and sold video tapes on suspicion of having forced 101 female high school students and other minors to perform in pornographic video productions. 320 video tapes portraying sexual acts were seized and the manager was charged with having sold them in uncensored form. According to the girls, they had received from 50,000 to 100,000 yen for each performance. Many of them reportedly said that they considered it a good-paying part-time job.
290.2. Some arrests have also been made under a law controlling the sale of used goods of dealers who buy and re-sell underwear and school uniforms supplied by female high school students. Involvement in this trade is also reportedly considered by many high school girls to be a good part-time job. Some of the high-school girls arrested in the above-mentioned pornographic video case reported that recruiters for the "date club" had asked them if they wanted to make videos for sale in shops specializing in this merchandise. According to the Tokyo Metropolitan Police, there are approximately 20 of these shops in Tokyo.
291. These female high school students and minors mentioned may be regarded as victims of gender discrimination and the commercialization of sex. The problem has deep cultural roots.
(4) Sexual Abuse of Children
292. Once again, very little is known about the extent of the sexual abuse of children within their families. One source of information are surveys of mistreatment by parents or parent substitutes, taken by Child Guidance Centers across the country, which offer counseling in matters relating to children. Most of the reports on this problem from these surveys concern abuse of female children by stepfathers or male companions of the children's mothers. It is inferred that these reports represent the tip of the iceberg. It is rare that sexual abuse of children results in criminal punishment. Following is one example of reports that have been received.
292.2. In March, 1992, a female elementary school student in Niigata prefecture confided to her mother that for two years she had been sexually abused by the man who had been her mother's lover. Following a period of hesitation for fear of causing her daughter further anguish, the mother finally decided to bring complaint to the police. A women's support group for the girl was formed, and this group became a source of both moral and financial support for both mother and daughter. In March, 1993, the man received a sentence of two years in prison with five years suspension of the sentence.
292.3. Japan has no measures requiring the reporting of sexual abuse of children or providing a system of counseling centers or shelters for victims. The matter of parental rights can be a major barrier to resolving the situation, and thus it is often very difficult to provide relief in these cases, even when a third party is aware that sexual abuse has taken place. However, there is in Tokyo a "Child Abuse Prevention Center" and other private groups consisting of lawyers, doctors, public health nurses and others that have in recent years gained some ground. As a result of their efforts, there have been cases in which courts have imposed limits on parental rights or annulled them.
(5) Sexual Harassment of Childre
293. a- A situation of sexual harassment in the schools has recently come to light. In particular, elementary and middle school teachers have, from the standpoint of the students, absolute authority. Thus, female students who are harassed in classrooms, away from public scrutiny, find themselves in a grave situation. In July, 1994, a 32-year-old male middle school teacher in Okayama prefecture received a disciplinary discharge from the board of education for repeated acts of sexual harassment of female students, such as touching of the breasts, and for having thereby damaged the public's faith in the educational system. According to the explanation from the board of education, this teacher, who had served as a volley ball coach, from about September 1992 until the end of 1993 would touch the breasts of female team members or tickle their upper bodies during volley ball practice in the gymnasium, and hold their hands while taking them to their homes in his car, etc. There have been many other cases of teachers receiving punitive dispositions for indecent acts. There have also been cases of rape. It is considered likely that for every case that is brought to light, there are many other instances of victims forced to carry the memory of the acts without ever receiving redress of any kind.
294. b- The following is a selection of headlines from the Japanese press that appeared from November, 1993 to July, 1994. They leave the impression that the sexual victimization of children is on the increase.
* Fukuoka Prefecture: Elementary School Vice-Principal Arrested on Suspicion of Indecent Acts Against 15-Year-Old Girl
* Hiroshima Prefecture: Teacher at School for Deaf Arrested for Indecent Acts Against Female Students
* Sapporo City: Female Part-Time High School Student Sexually Abused in School. Male Student Denies Allegations
* Hyogo Prefecture: Indecent Acts by Elementary School Teacher
* Fukuoka Prefecture: Middle School Teacher Arrested on Suspicion of Abetting Glue-Sniffing and Indecent Acts Against Underage Girls
* Ibaraki Prefecture: Youth Counselor Arrested for Indecent Acts Against Middle School Female Student
* Tokyo: City Official Breaks Into Home and Assaults Female High School Student
c- Physical Examinations in the Schools
295. According to an article appearing in the August 9, 1989 edition of the Japan Times, a survey of middle school students in Okayama prefecture found that 40% of the students objected to having to undress for physical examinations. In the Fukui edition of the September 15, 1989 edition of the Asahi Shimbun, parents at a general PTA meeting of a middle school in the city of Fukui asked for changes in students medical checks that required the girls to strip down to nothing but panties and eliminate the presence of male teachers during these examinations. These requests were rejected by the school, on the grounds that the teachers in charge were acting as "substitutes for the parents," that it was necessary for them to have a thorough knowledge of the students' health, and that the requirement to undress was for the purpose of inspecting what type of underwear was being worn. According to the school's reasoning, middle school students should wear white underwear, because "an interest in floral patterns or pink colors would lead to neglect of their studies." Needless to say, such gross insensitivity to the feelings of students and parents needs to be banished from the schools.
d- Enforced Wearing of "Bloomers" in Physical Education Classes
296. Japan's schools often require female students to wear a kind of bloomer shorts for physical education classes that many consider objectionable. An anti-bloomer petition campaign initiated in 1987 by female students of the Nagoya Nishi High School gained considerable attention. The students who dislike being made to wear them feel that in the context of Japanese popular culture, this uniform can be considered to contribute to their being seen as sexual objects. It is enough for female students to wear such training uniforms as those of male students.
297. According to the Convention on the Rights of the Child, the purpose of education is the development of respect for human rights and fundamental freedoms (Art 29.1.b), children have a right to privacy and to not be subjected to attacks on their honor (Art 16), and they have the right not to be subjected to inhuman or degrading treatment (Art. 37.a). Schools that conduct panty checks of their female students, require them to bare their breasts en masse before male school teachers or force them against their will to wear what they consider to be demeaning uniforms are violations of these provisions, and constitute institutionalized support of the culture of gender discrimination.
(6) Sex Tours
298. It is a well-known fact that group tours of Japanese males to Thailand, the Philippines and other Asian countries are organized for the purpose of patronizing prostitution. Many people in each of these countries and elsewhere consider this to be a major violation of the rights of women in Asia.
299. Of especial concern is the victimization of young boys and girls by the sex tours. In 1991, it was reported in the Philippines that two Japanese males had kept large numbers of young boys and girls confined and subjected them to sexual abuse. In Germany and Australia, countries that are, like Japan, major patronizers of sex tourism, adopted laws by 1994 that subject patronage of the prostitution of children abroad to strict punishment. However, Japan has implemented no such measures of any kind.
300. A question during a Diet session concerning this problem was answered by a government representative that current law is applicable to the patronage of the prostitution of children abroad. However, the pertinent laws are inadequate due to severe restrictions. The crimes of rape and indecent assault are both offenses for which prosecution depends on the victim's filing of a complaint, and the charges must be filed within six months. The crime of incitement of a minor to indecent acts under the Child Welfare Law does not even apply outside the country. Having ratified the Convention on the Rights of the Child, Japan is obligated to take adequate measures to prohibit sexual abuse and sexual exploitation of children.
301. The government must conduct a survey of group patronage of prostitution that includes the problem of the prostitution of children. On the basis of this survey, it must establish an urgent, effective policy that includes legal reform to deal with the problem. The United Nations should consult with the Congress on the Prevention of Crime and the Treatment of Offenders or other bodies in forming an effective plan for the prevention of sexual exploitation and the patronage of the prostitution of children.
302. Japan's government had for long taken no steps concerning the problem of military comfort women. However, as the fiftieth anniversary of the termination of the war by Japan's defeat approached, the clarification of Japan's legal responsibilities toward the victims of its aggression and the establishment of relief measures for them has become a matter of urgent necessity. In January 1995, the JFBA made the following proposals concerning this problem:
(1) Thorough research to determine the damage that was suffered, responsibility for it and disclosure of the findings
(2) Measures to promote the recovery of the victims
(3) The use of the Permanent Court of Arbitration
(4) The importance of historical education (for details please see "Recommendations on the Issue of Comfort Women")
303. With the exception of the first 10 years since the end of World War II, Japan's rate of reported crimes per 100,000 population has remained stable, in the range of 1,000-1,500. These figures are strikingly lower than are seen in the West (in 1990, the figure for the U.S. was 5,820, for the U.K., 8,630, for France, 6,169 and for Japan, it was 1,324). Moreover, in the past several years the number of reported serious crimes in Japan has steadily decreased.
304. However, when we look at the state of crimes by juveniles, which are included in the above figures, a number of points emerge that differ from the situation for crimes by adults. Over the past 20 years, the ratio of juveniles among those arrested for criminal offenses under the Penal Code, exclusive of traffic violations, has advanced from percentages in the ranges of 30-39% to 50-59%. The juvenile crime rate (ratio of juveniles arrested for criminal offenses per 1,000 juvenile population) steadily rose from 6.7% in 1946, the year following the end of World War II, until it reached 17.2% in 1981. Since then, it has shown a gradual decline. Thus, juvenile crime in Japan is distinguished by the fact that the crime rate by juveniles as a whole is low, but as a percentage of all crimes committed, it is substantial. When the crime rate for adults in a society declines while that for juveniles does not, it can be inferred that the social environment is more suited to adults.
305. Juvenile crime since World War II has described three waves. The first peaked in 1951, the second in 1964 and the third in 1983. Recent juvenile misdemeanors consist mainly of petty theft (shoplifting, stealing of bicycles and motorcycles) and embezzlement (mainly of unattended bicycles,which falls under crime of " embezzlement of lost property"). Also striking are the many instances of violence and glue or thinner sniffing in the schools or at home. Long ago, the motive for theft was mainly poverty. Now it is committed for amusement. Juveniles who use thinner or drugs do so out of curiosity or a desire to escape from reality, and they often end up as habitual users. Youths involved in lawbreaking today are characterized by a lack of structure in their lives. Because they lack a sense of norms, and their idea of play embraces lawbreaking, there is nothing to stop criminal activity from becoming a part of their everyday lives. Because these characteristics are not necessarily far from those of other youths, there is a substantial potential for delinquency among all. In particular, 14- and 15-year-olds show the greatest tendency for delinquency, then, for higher age groups, the rates of delinquency fall off.
306. The foundation for these tendencies among youth in the society lie in dissatisfactions that arise from the increasingly influential power of materialism, the reservation of the best that the society has to offer for academic achievers, confusion resulting from greater diversification of individual values, and the breakdown of the community. As these factors tending to invite juvenile crime and delinquency grow, the power of the society to control them has diminished. The social conditions were created by the adults; the behavior of children is a mirror of the society. Thus, the most important thing is to rectify these social conditions in order to deal with juvenile crime and delinquency.
307. The tendencies and characteristics of juvenile crime and delinquency in Japan influence the system of juvenile law and its operation in several ways.
308. The current Juvenile Law was enacted in 1949. This law represents a fundamental change over the system that gave priority to the discretion of prosecutors. It completely separates the functions of investigation and hearings, and does not permit the prosecutor to have any part in the process. The objective of this reform was to remove juveniles from the environment that threatens their proper development. This system secures the participation of the juvenile himself, in a way that is demonstrably fair to him, in the process of determining the delinquency and settling on its disposition. Juvenile law places juvenile cases under the exclusive jurisdiction of the family court, which is a judicial agency. Accordingly, it makes the objective of juvenile procedure "the sound and wholesome development of juveniles" (Art. 1), and specifies that "hearings shall be conduced in a mild atmosphere, with emphasis upon kindliness." (Art. 22) (Concerning Japan's Juvenile Law, see "Japan's Juvenile Justice System: An Overview," prepared for the Eighth Congress on the Prevention of Crime and the Treatment of Offenders.)
309. However, the ideals embodied in the Juvenile Law of protectionism for sound and wholesome development of children have not followed a process of development since its establishment. Rather, the law has been shaken by a distorted approach to its administration. In 1976, a report from a sub-council on juvenile law within the Legislative Council of the Ministry of Justice drew the opposition of the JFBA for its revisionism. This report proposed introducing "diversification and elasticity" in custody disposition, and sought to extend the right of prosecutors to contribute to the hearing process and to give them right of appeal. Moreover, it recommended revision of the principle that all juvenile cases be handled by family courts, in order to grant police and prosecutors the right to handle certain juvenile cases by themselves.
310. Realizing that the implementation of these proposals would overturn the basic principles of the current Juvenile Law, the JFBA established a "Headquarters for Countermeasures Against Juvenile Law Revision," and mounted a strong campaign of opposition. In March, 1984, it released its official view that the Legislative Council report was a distortion of the principles of the Juvenile Law.
311. The point of the JFBA's opposition is that introducing a prosecutor into the hearing process and permitting him the right of appeal would turn the juvenile court from one whose objective is the sound and wholesome development of youth to that of determining responsibility, the same as in criminal trials. This position would make juvenile disposition more like that of criminal punishment. Giving police and prosecutors the power to dispose of cases by themselves without sending them to family court would undermine the basic principle of juvenile law, which uses as its judicial instrument the family court, with its welfare-oriented functions. The revisions proposed by this report would shrink and weaken the role of the family court, reverse the development of the system of juvenile law and be detrimental to the wholesome development and happiness of youth.
312. Due to the strong opposition of the JFBA, scholars and citizens groups, the proposed revision to the Juvenile Law have not been implemented. However, in the course of administering current juvenile law, the process of distortion of its fundamental principles has continued. The process has indeed been strengthened by a "draft model" from the Supreme Court. In accordance with this proposal, family courts across the country have drafted and implemented "Guidelines for the Disposition of Juvenile Cases." These guidelines have been given priority over the views of family court probation officers. In this way, the casework function of the family court has been subordinated to that of its judicial functions. 313. To counter this tide of the gradual undermining of the juvenile law system, the JFBA distributed to all of its members in 1980 "A Manual for Attendants in Juvenile Cases." Its objective was to promote the use of attorneys working to defend the human and civil rights of juveniles by acting as attendants in the juvenile hearing process.
313. To counter this tide of the gradual undermining of the juvenile law system, the JFBA distributed to all of its members in 1980 "A Manual for Attendants in Juvenile Cases." Its objective was to promote the use of attorneys working to defend the human and civil rights of juveniles by acting as attendants in the juvenile hearing process.
314. The primary object of lawyers engaged in these activities is the guarantee of due process in juvenile law. The guarantee of due process to juveniles is included in Art. 31 of the Constitution. Also, in a ruling of October 26, 1983, the Supreme Court indicated the importance of due process in the juvenile law system as follows:
314.2. "In determining the fact of delinquency in juvenile custody cases, consideration for the human rights of the juvenile in the course of the proceedings is indispensable. Determination of scope, limitation and methods of examination of evidence with regard to determination of whether an act of delinquency was committed should not fall within the completely unrestricted discretion of the family court. Rather, the Juvenile Law and the Rules of Juvenile Proceedings should be interpreted as being subject to the reasonable discretion of the family court."
315. The United Nations has provided a series of documents that are greatly encouraging to lawyers. These include the 1985 "United Nations Standard Minimum Rules for the Administration of Juvenile Justice" (The Beijing Rules), the "United Nations Guidelines for the Prevention of Juvenile Delinquency" (The Riyadh Guidelines) and the "United Nations Rules for the Protection of Juveniles Deprived of Their Liberty," both of 1990, and the "Convention on the Rights of the Child" of November, 1989, which incorporates all of these principles.
316. The JFBA obtained the cooperation of scholars to translate and publicize these international documents at an early stage, and it has studied the problems in the actual state of juvenile justice in Japan in the light of these international human rights standards. (One fruit of these efforts was a 151-page report from JFBA entitled "The State of Administration of Juvenile Law in Japan : In the Light of Standard Minimum Rules." Using the authority of these international standards and laws, the JFBA has called for practical action to insure due process in juvenile law.
317. These efforts were supported by a series of court rulings since the 1980s, including the above-mentioned Supreme Court finding, on the importance of the protection of the rights of juveniles and due process in juvenile cases. Also, thanks to the efforts of a group of lawyers, the notorious incident of the 1989 Ayase case, in which three middle-school boys were wrongfully arrested, detained and forced to falsely confess to the murder of a woman and her child that occurred in Ayase, Tokyo (Adachi ward). The truth of this case was brought out in family court. (Concerning this case, see "Japan's Justice System: An Overview.")
317.2. Similar efforts by others have resulted in the exoneration of the falsely accused in many juvenile cases. (These cases are covered in the JFBA publication called "Police Activities Regarding Juveniles and the Rights of Children".) On September 12, 1989, the innocence of the three boys was affirmed with a decision of "no disposition" by the court.
317.3. As the result of criticisms and proposals by lawyers and scholars of the lack in juvenile law of a system to compensate juveniles deprived of their freedom, who later receive "no disposition" judgements (equivalent to "not guilty" criminal law), in June, 1992, the "Law Concerning Compensation in Juvenile Custody Cases" was enacted.
318. However, this trend toward regarding with increasing gravity the protection of the rights of juveniles and due process in juvenile cases is not adequately reflected in the administration of juvenile law. To the contrary, the movement to roll back the protections in juvenile law has recently gained momentum.
319. One especially serious problem in this regard at present concerns the office of the Tokyo District Public Prosecutor bringing criminal charges against four adults and one minor (under age 20) on a charge for which all five have already undergone juvenile hearings. The incident in question occurred in March, 1993, near the south exit of Chofu Station, in Tokyo. Five youths were assaulted by another group of youths, causing one of the victims injuries requiring three weeks of medical treatment. Five boys underwent hearings in Tokyo Family Court, Hachioji Branch for this assault, which resulted in their being sent to a reformatory. However, on appeal, the Tokyo High Court ruled that a witness's testimony denying the boy's involvement was reliable and returned the case to the Tokyo Family Court, Hachioji Branch. In new hearings, a judgement of no disposition was handed down for one of the boys, for whom compensation was paid under the "Law Concerning Compensation in Juvenile Custody Cases." However, as mentioned above, the office of the Tokyo District Prosecutor brought criminal charges against him just after his twentieth birthday, February 28, 1994. Furthermore, the family court sent the case of the other four to the district prosecutor's office, recommending criminal disposition in these cases, and the prosecutor's office charged them in the same day, February 28, 1994.
319.2. The family court was of course aware that these youths had already spent 3 months in reformatory by the time the high court returned their cases to it. Thus, its decision is all the more startling.
319.3. This decision is nothing less than an assault on the foundation of current judicial administration of juvenile law. It places juveniles under double jeopardy, which is prohibited in Art. 14.7 of ICCPR and Art. 39 of Japan's Constitution. Being tried for the same offense twice means that they can punished twice for the same offence. Upon the filing of the charges, the JFBA immediately released a statement of regret over this action from the president, and it has mobilized its Committee on the Rights of the Child (a reorganized version of the previously mentioned Headquarters for Countermeasures Against Juvenile Law Revision) to deal with this incident from the standpoint of securing the rights of juveniles to due process.
3) Towards an Increase of Attendants in Juvenile Cases - Introduction of Legal Aid and Duty Attorney System in Juvenile Cases
320. Japan's system of juvenile hearings allows the appointment of attendants to the juvenile undergoing the hearing to see that due process is given in the custody process and to represent the interests of the juvenile. However, in practice, very few attorneys or other attendants are ever appointed. Thus, the vast majority of youths appear in the juvenile court alone, with no one to give them support or look after their interests.
321. The JFBA proposes that the number of attorneys acting as attendants in juvenile cases be increased, in order to secure juvenile's rights to due process, and it has considered various specific actions and in other ways made efforts to realize that goal. For criminal cases, Japan has a system of state-appointed attorneys, but there is not yet a comparable system for attendants in juvenile cases. Therefore, in juvenile cases the guardians or juveniles themselves have to select the attendants and bear the costs. However, in juvenile cases, it is not uncommon that there are no parents, or the household not in a position financially to pay attorney's fees. Thus, the JFBA has expanded its legal aid system to cover fees for attendants in juvenile cases. This legal aid system for juvenile attendants works not only upon the request of guardians or the juveniles themselves, but also through the mediation of family courts. Although repayment of the money paid to attorneys from the legal aid is the general rule for adults, in juvenile cases repayment is as a rule not requested.
322. Despite the fact that attorneys' fees for serving as attendants in juvenile cases to be paid from the legal aid fund are small, once this system for assistance was established and spread around the country, a great many attorneys have served as attendants from a spirit of volunteerism. Even so, there are still many cases where attorneys as attendants in juvenile cases are not yet available. The following statistics show the rapid spread of this system.
|Year||No. juvenile criminal cases||No. attendants||No. attendants through legal aid|
323. The JFBA has for several years been calling for a doubling of the number of attendants in juvenile cases, and young lawyers are leading the effort to reach this goal. It will require a fundamental change in the entire legal aid system.
324. In addition, the JFBA has held conventions at least once a year of these attendants in juvenile cases from all over the country to share their experiences. To date, five of these conventions have been held.
325. As the Duty Attorney System (see Chapter 5) becomes established as an institution, the number of attorneys being appointed to represent juvenile suspects is expected to continue to expand in the future. Also, in 1990, the Japan Legal Aid Association (a corporate foundation) established an Attorneys' Assistance System for Criminal Suspects in order to realize the principles of the United Nations' Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonmnet, which has been supporting the Duty Attorney System. The use of this system is increasing rapidly, being applied in 73 cases in 1990, 317 cases in 1991, 950 cases in 1994, 1,461 cases in 1993 and 1,684 cases in 1994.
325.2 It is estimated that the number of incidents involving juvenile suspects is on the order of several percentage points. Since in some serious juvenile cases, the juvenile himself or his parents do not necessarily request an attorney, the bar associations themselves have begun to try dispatching Duty Attorneys for the purpose of protecting the rights of the juvenile. In this way, progress is being made in the stage of investigations in juvenile incidents as well towards protecting their rights to receive due process of law.
4) Towards Activities for the Protection of Children's Rights and Ratification and Implementation of the Convention on the Rights of the Child
326. It has been noted that in the background to juvenile delinquency and lawbreaking is discriminatory treatment in the schools of high and low achievers and the desire to escape from its pressures. The JFBA is ever mindful of human rights violations in the schools. (Concerning the situation in which Japanese children are placed, please see JFBA, "A Report on the Application and Practice in Japan of the International Covenant on Civil and Political Rights," Para. 388-492.2 and Para. 782-866.2.)
327. For its annual human rights convention in October 1985, the JFBA held a symposium on the theme "School Rules, Corporal Punishment and Reliance On Police - Children's Rights and School Life." This symposium noted that schools, which should be providing a foundation for the children to develop as full human beings, instead operates according to a system that routinely treats them in an inhuman manner. In order to support the children and protect their human rights, it was proposed that all the nation's bar associations establish liaison centers on relief measures for violations of children's human rights to be available for use by parents and children, free of charge. In 1987, the JFBA issued a "Handbook for the Protection of Children's Human Rights." This handbook has been widely used, not only by attorneys, but by many other concerned citizens as well.
328. Beginning in 1985, "Children's Human Rights Hotlines," "Counseling Centers for Children's Problems" and other measures for the protection of children human rights began to be established by bar associations across the country. For example, a "Children's Human Rights Hotline" established by the Tokyo Bar Association received calls on 4,500 incidents in the nine years between 1985 and 1994. One-third of these were received from the children themselves. In addition, beginning in 1991, the JFBA began holding free counseling sessions all across the country once a year on the Japanese national holiday, Children's Day. These activities by bar associations have been like a source of light to children and their parents, and have resulted in many cases of relief measures being successfully taken. Concerning serious and widespread human rights violations, bar associations have conducted investigations and presented schools and education officials with warnings and requests. Conducted free of charge, these activities are meant to fulfill the role of a children rights ombudsmen, a system that has not yet been established in Japan.
329. For its November, 1991 human rights convention, the JFBA held a symposium on the theme "Are You Seeing Smiles on Your Children's Faces?". It examined problems connected with the schools, the home, welfare, juvenile law, etc. in the light of the Convention on the Rights of the Child. This symposium resulted in a 556-page report that also covered problems to be dealt with in the future.
330. The JFBA is actively working for the ratification and dissemination of the Convention on the Rights of the Child. Besides strongly urging the government to ratify, it has noted problems and proposed revisions concerning the document appended to the government's ratification proposal that declares its reservations and interpretations. Besides this, for the purpose of promoting ratification and dissemination of the convention, the JFBA has organized a number of citizens groups into a "Liaison Group for Ratification of the Convention on the Rights of the Child," which has met eleven times between 1990 and 1994. Activities of this kind have introduced broader perspectives into the movement to protect and assist children throughout the world, expanding contacts with non-government organizations working for the welfare of children not only in Japan, but around the world. Following the ratification of the convention in 1994, these activities continue the work of institutionalizing its provisions.
331. Activities conducted in the spirit of volunteerism for the protection of children and enlightenment of the public concerning the rights of children are bound to help reduce delinquency and lawbreaking by youth.
10. International Cooperation in the Administration of Justice - Future Problems for JFBA to Consider
332. Lawyers are an indispensable existence, not only to protect the rights of suspects and defendants, but for the fair conduct of trials. In addition, the role of lawyers is not limited to human rights protection and the realization of fair trials in criminal justice, but their role in securing fair and reasonable solutions in civil disputes as a means of preventing crime (i.e., avoiding the resorting to private means of solving personal disputes out of distrust of the judicial system and prevent violent interventionism in civil disputes) is also very important.
333. In cooperation with the United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI), located in Fuchu, Tokyo, and by other means, the Japanese government has established a record of conducting training programs mainly for Asian countries in crime prevention, criminal justice and corrections. However, these training sessions unfortunately give little attention to the role of attorneys. Apparently, there have been no formal participation in these training programs by attorneys, other those who serve as public officials. This system ought to be corrected.
334. The UNAFEI is at present run by the Ministry of Justice, which produces all of its funding. The instructors are all Japanese who belong to the Ministry of Justice. The expenses of students it accepts as trainees from developing countries come out of Japan's official development aid (ODA). Because of this, there is a tendency for it to concentrate on instructing these officials from developing countries on Japan's criminal justice and corrections systems. Henceforth, steps should be taken to bring these training sessions more into balance, responding more to the diverse needs of the developing countries in offering the trainees a wider training program. To that purpose, it is desirable that a reform of the functions of UNAFEI be conducted to achieve diversification and qualitative improvement, in regard both to instructors and the selection of trainees. In particular, attention should be given to the needs of democratization. This requires an emphasis on the training of lawyers, a consideration that people in positions of power have a tendency to overlook.
335. Recently, requests from developing countries in Asia and elsewhere for support not only in the fields of criminal law, but for training in civil cases, legislation, legal professional education, legal aid, etc. have been received both by the government and the JFBA as well. For example, last year, the Ministry of Justice received trainees from the Vietnam Justice Ministry and the National Police Agency provided training for police officers from Cambodia.
336. The JFBA itself participated in the training of legal students from Cambodia who had been invited to the United Nations Regional Development Center. The JFBA cooperated with that program, together with the Japan Jurist League for Cambodia, the Japan Civil Liberties Union, volunteer lawyers, regional bar associations, the Supreme Court, the Ministry of Justice and UNAFEI. Also, the JFBA is at present actively considering a request for support from the Ministry of Justice of Mongolia in legal professional training. However, because of an insufficiency of funding, the JFBA made a request to the government for support from the official development aid budget.
337. However, the proportion of funds for cooperation in the legal field is a small portion of spending in the ODA budget. Existing systems of organizing international technical cooperation to provide training in the legal field other than UNAFEI are inadequate. In future, it is to be hoped that much more of ODA budgets will be used in the legal field and that an adequate system will be developed for replying to requests for assistance from foreign countries.
338. The JFBA has taken such opportunities as participation in the 1993 UN World Convention on Human Rights in Vienna to study ways engaging in activities for the protection of human rights both in Japan and worldwide, including problems that do not bear directly on Japanese. This derives from the ultimate mission of lawyers, as given in Art. 1.1 of Japan's Practicing Attorney Law:
"A practicing attorney is entrusted with a mission to protect fundamental human rights and to realize social justice." And from Art. 1.2, which says: "A practicing attorney shall, in keeping with the mission specified in the preceding paragraph, sincerely perform his duties and endeavor to maintain the social order and to improve the legal system."
338.2. As an organization to which all lawyers must belong, the JFBA is aware that this mission and the responsibilities lawyers have with the internationalization of Japanese society does not stop with Japan, but extends to international society as a whole, based upon the principle of international cooperation embodied in Japan's Constitution (Preamble and Art. 98.2).
339. As a nongovernment organization for the public interest, provided for by the Practicing Attorney Law, the JFBA offers to the government the following proposals concerning international cooperation in the field of criminal justice, and is itself studying how best to assume a role toward this end:
340. Assign priority to international cooperation in order to establish effective defence counsel systems, as an indispensable element to the fair conduct of criminal justice.
341. Give more consideration to international human rights law, including the implementation of ICCPR and other instruments for the protection of the rights of suspects and implementation of defendants.
342. In order to fully realize the above, a lawyer recommended by the JFBA should be included among the officers in charge of instruction, who now consist entirely of government officials. Also, long-term instructors should be recruited from other Asian countries, in order to provide for instruction other than that concerning the administration of Japanese criminal law.
343. The United Nations, NGOs and a wide variety of other channels should be employed in the selection of highly qualified trainees for the development of democratic and fair criminal justice. In particular, the JFBA should be entitled to recommend a certain number of trainee candidates.
344. The number of third country seminars held in developing countries should be increased to promote "south-south" cooperation among neighboring countries and effective technical cooperation that suits the receiving regions.
345. In recent years, a number of requests for assistance have been received from Vietnam, Mongolia and other countries undergoing economic transformation, for assistance not only in the field of criminal justice, but also in the fields of training legal professionals, and drafting legislation. At the same time, there is an increasing demand for legal specialists from the United Nations and other international organizations (e.g. the International Criminal Court, dispatch of human rights monitors). This type of assistance and international cooperation is instrumental for the resolution and prevention of disputes and crime, through the realization of social justice and the maintenance of social order. Therefore, the JFBA will give its cooperation and support, within the framework of the Japanese Constitution, for the development and strengthening of international technical cooperation.
346. First of all, the Japanese side must be fully prepared to respond promptly to requests of this kind. A committee consisting of legal scholars, judges, prosecutors, attorneys, members of the Japan International Cooperation Agency (JICA) and others should be established for the organization of the process of dispatching specialists. This committee would both identify and secure personnel to participate in international cooperation, and would also provide for the training of new personnel.
347. In addition, thorough attention should be given to support for legal aid projects for the many people in developing countries who are not able to avail themselves of the laws that they have, for personal economic reasons. Possibilities for achieving this purpose would be supporting the development of NGOs that function like legal aid associations, or financial support channeled through organizations like Japan's bar associations, the Japan Legal Aid Association or other NGOs.
348. There have thus far been few examples of ODA being used for programs in the fields of criminal law or the justice system in general. There are two conceivable reasons for this. First of all, because the judicial system is a symbol of national sovereignty, such assistance could be interpreted as interference in the country's internal affairs. Another reason may be that the fact that ODA is run on the principle of responding to requests from the country, but the country itself is not forthcoming about requesting assistance in affairs concerning the judiciary. In other words, people in power do not tend to be very enthusiastic about supporting an independent institution that is meant to exercise authority that is independent from their executive power.
349. However, the establishment of a reliable independent judiciary and the establishment of rule by law is essential for the prevention of crime, the maintenance of the peace and the development of human rights. It is both an important element of development and at the same time a prerequisite to development. Even though there is a strong connection between the judiciary and the sovereignty of the country, this does not constitute a reason for treating assistance in this area differently from assistance for administrative functions. The establishment of an independent judiciary that stands firmly in a position of neutrality helps the receiving country to help itself in checking administrative vested interests and corruption, making it possible to expect that the assistance will be used fairly and effectively. It could be said that is important that assistance for the strengthening of the judiciary be extended on the initiative of the assisting country, as a way of making up for the weakness in the system that premises ODA assistance on the request of the receiving country. The logic of this argument is already being employed in assistance in the area of environmental protection.
350. Assistance to the judiciary accords with the principle of guaranteeing basic human rights and freedoms, and promoting democratization, which are among the list of conditions for the granting of ODA in the ODA Guidelines of 1992. It is not without reason that courts are said to be the fortresses for human rights. The establishment of an effective judicial system is the most important systemic guarantee of human rights. It is also one of the prerequisites for a democratic system, that requires for its functioning a free system of elections, which is itself one of the fundamental human rights.
351. From this point of view, the above-mentioned reform of UNAFEI, the application of ODA to programs of international cooperation sponsored by the Ministry of Justice, cooperation with JICA in establishing a system of training and dispatching specialists and the realization of support for legal aid activities via NGOs are desirable goals.
352. (1) The JFBA will work to mobilize public opinion concerning reform of the UNAFEI, the Justice Ministry's international cooperation activities in the field of the judiciary and the application of ODA for this purpose. The JFBA will also itself participate in these activities.
353. (2) For this purpose, the JFBA itself needs to make certain preparations. It is currently studying the establishment of a liaison council for the United Nations human rights activities to effectively use existing committees and working groups for international cooperation.
354. (3) There is a need to study ways for the JFBA to prepare for its own contribution to international cooperation. These efforts would have their own significance for their effectiveness in creating a public mood that would be persuasive to the government. Contributions that the JFBA can make include support for attorneys and human rights activities in developing countries, dispatching specialist attorneys and receiving trainees.
355. (4) Funding should be acquired both through organized collection of private contributions and from ODA. At present, there are restrictions on contributions that can be received by the JFBA. It is therefore first of all necessary that new policies and guidelines be formulated for the liberalization and diversification of monetary contributions that can be received by the JFBA.
356. (5) However, there are a number of conditions prevailing that are conspicuously restrictive to the activities of the JFBA and other NGOs. They generally lack tax benefits for receiving contributions. It is also difficult in general for NGOs to obtain corporate status. Their financial foundations are weak and their legal status is not stable. Thus, the JFBA is taking the lead in preparing a proposal for legislation for facilitating the establishment of the incorporation of non-profit NGOs and revision of tax law, to make it possible for them to receive tax benefits, to enable them to carry out the diverse and precision roles in international cooperation for which they are well suited.
357. (6) Begin a continuing dialog with government agencies on ways in which the JFBA can participate in the securing and of ODA and the execution of ODA programs.