The Tenth United Nations Congress on the Prevention of Crime and Treatment Offenders Vienna, Austria
A/CONF.187/NGO/JFBA/1
10 April 2000
ENGLISH ONLY
Report to the Tenth United Nations Congress on the
Prevention of Crime and Treatment of Offenders
April 2000
Japan Federation of Bar Associations( JFBA )
Introduction
As an organization representing Japanese attorneys whose duties are to protect fundamental human rights and realize social justice, we have been coping with problems of assuring human rights in criminal justice. In this context we have sent delegations to the Eighth and Ninth United Nations Congresses on the Prevention of Crime and the Treatment of Offenders. We were also approved of its consultative status with the United Nations Economic and Social Council as an NGO. Our Federation supports the preliminary draft of the Vienna Declaration and hopes for the success of the Tenth UN Congress on the Prevention of Crime and the Treatment of Offenders. As such, we wish to present some of our opinions and suggestions concerning the Congress agenda.
I. Strengthening rule of law and criminal justice
Suggestion
Considering the internationalization of criminal procedures, investigations from the perspective of internationalized human rights protection should be made so that measures to combat transnational organized crime may stand in keeping with a system to ensure fundamental human rights, we support Paragraph 4 of the preliminary draft of the Vienna Declaration and suggest the insertion of the phrase “in a way compatible with the framework of international protection of human rights."
Reasons
1. Viewpoint of internationalization of criminal procedures
Transnational crimes, particularly the organized type, are fairly new in the world and deserve regard as a "new challenge" that one countr's sovereignty can no longer cope with in a situation where the traditional concept of borders is dissolving as economic activities and the movement of people are increasingly global. Thus, it is appropriate that under an international covenant, investigative and judicial organs of various countries collaborate to prevent crimes. While ashamed to admit it, a raft of gangster (YAKUZA) organizations in Japan which aggregate more than 80,000 thugs, over the four times of the number of Mafia in the United States and Itary, have a toxic influence on the country's economics and politics and menace enterprises and ordinary people. From the viewpoint that JFBA measures taken against violent intervention in civil affairs can be part of human rights remedy activities to help the firms and citizens victimized by YAKUZA and prevent similar cases, we have fought these hoodlums for twenty years. This being the case, JFBA deeply appreciates the significance of the UN Congress aimed at adopting the United Nations Covenant against Transnational Organized Crime.
On the other hand, we feel that we must express our candid concern that protection of individual human rights, as supported by international human rights laws such as the International Covenant on Civil and Political Rights, particularly the securing of procedures allowed for persons accused of criminal offense, may be endangered as a result of too much emphasis on the prevention of transnational crimes.
Treaties like the International Covenant on Civil and Political Rights, that has legal control over the signatory countries, internationally approves universal value of human rights and obligates each country to take judicial measures to ensure that an individual can enjoy his/her rights. Therefore, the securing of procedures concerning criminal justice -- the right to be informed of the suspected facts, to request gratis interpretation, to counsel, to remain silent, etc. -- has assumed an internationally common character based on the international human rights law for criminal procedures, transcending differences in the judicial systems of specific countries. When a crime is treated within an international framework, "transborder investigation" and "internationalized extradition procedures" form just one side of coin; we must remember that the other side is accompanied by the internationalization of human rights protection.
Accordingly, when discussing cooperation among countries, we should do so from a broad viewpoint that includes how to promote transnational criminal procedures that embrace internationalized human rights protection, not merely from the aspect of how to process such crimes. In taking stance toward international human rights in criminal procedures, issues like what is needed to make the system effective and how to realize it, while assuring the legality of investigative procedures in each country, requires careful examination.
The principle of rule of law constitutes the basis of international human rights law. Rule of law and respect for human rights, relating with each other very closely, must work together to realize a democratic society.
It stands as unarguable that transnational organized crime is a threat to the world and effecting countermeasures are essential. But they must never violate the securing of means to protect human rights. For the Convention against Transnational Organized Crimes to form part of true international human rights laws concerning criminal procedures, we must find a reasonable meeting point where the method of guaranteeing human rights and the method needed to prevent crime are compatible no matter how hard it may be.
2. Strenghtening Japan's criminal Justice system
(1) Trends of criminal justice reform
In 1999 Japan's government established a "Judicial System Reform Council" comprising thirteen civilians in the cabinet and consulted the Council as to what the Japanese judiciary system should be in the 21st century. The Council is to examine and discuss the nation's judicial system as a whole and make suggestions regarding the direction of reform. To respond to this movement and aim at the realization of a judicial system easily accessable by the people, JFBA made public its own "Judicial Reform Vision," thereby contributing to the Council's deliberations.
In the realm of criminal justice, Council discussions are unfolding from the standpoint of justice to satisfy public expectations based on international trends in the protection of human rights, ways of investigation and trial procedures responding to a new age, and the defense of suspects including those involved in juvenile cases. Another matter treated is the introduction of a jury system composed of ordinary people from the standpoint of people's participation in judicial process.
(2) Recommendations by Human Rights Committee
A review of the system from the international angle started with the concluding observations of the Human Rights Committee on two government reports issued, on 4 November 1993 and on 5 November 1998.
Among the comments made in 1993, taking note of the investigating system using bodily custody in the substitute prison system (Daiyo Kangoku), that characterizes Japanese criminal justice, the Committee expressed concern that the Japan's criminal system does not fully comply with the rights of criminal processes secured by the International Covenant on Civil and Political Rights, and recommended its improvement. But as the government did not take the necessary measures for improvement, the Committee's 1998 concluding observations treated most of the problems found in Japan's criminal justice system and made separate recommendations for each one.
The main points are described in Note 1.
(3) Actualizing recommendations
As a standard-bearer as well as a party to play a part in Japan's criminal justice, JFBA is proceeding independently to implement the Committee's recommendations and with some of them, the movement toward their systemization is in progress in association with the government. Most important in this is that three branches of the legal profession (judges, prosecutors and attorneys) have basically agreed to the concept of building a new system of having a defense counsel prior to indictment, whereby a suspect in custody is assigned an attorney before indictment at government expense. This means that the present defense counsel system based on a duty attorney operated by JFBA at its own expense to cover the fault of the system will be effected at government expense. The duty attorney system provides attorneys who consult with suspects arrested at their place of detention at their own requests or the requests of their relatives or friends, without charge for the first visit. Since discussions by the Reform Council also focus on the public defense counsel system for suspects and the accused and aim to establish it, evidently the prospect for an official defense counsel to aid suspects in custody as requested in the recommendations has a good chance of becoming a reality.
However, this does not imply steady impetus toward realizing all the issues mentioned. There is no sign that the government intends to abolish the substitute prison system. In spite of JFBA's suggestions, the administration remains negative on using tape recording in context with criminal investigations. Also the interview system in which face-to-face communication between a suspect in custody and an attorney can be restricted by unilateral judgement of the investigative authorities, by reason of "necessity of investigation", is allowed to continue by the Supreme Court's judgement of constitutionality (Judgement of 24 March 1999). The purpose of the Human Rights Committee's recommendation concerning access by defense counsel is to approve the self-direction of suspects and the accused and give them their rights of self-defense. But under the present criminal justice in Japan, their position remains as an object of investigation rather than the subject of self-defense.
(4) Legislative trends in domestic laws
A review of recent legislative trends shows that with ratification of the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Japan's government passed a law to approve controlled delivery, that was not included in traditional investigative methods. In August 1999 the government enacted the Law for Monitoring Communication and the Law for Countermeasures against Organized Crime, that allows monitoring communications. The effects and operating conditions of these statutes will require close attention.
These laws accord with international cooperation against transnational organized crime. But consideration for the protection of human rights as requested is not necessarily enough. Therefore, special efforts must be applied in order that requests for due process of the law provided by the Japanese Constitutional Law and the International Covenant on Civil and Political Rights will not revert to what they once were.
JFBA's suggestions mentioned at the beginning reflect this concern about the status of human rights in Japan. At the same time, this is a blind spot we are apt to forget when considering the struggle against crime at the international level and what we must consciously bear in mind. Therefore, we suggest that the phrase "in a way compatible with the international framework of human rights protection" be inserted in Paragraph 4 of the preliminary draft of the Vienna Declaration. This suggestion is in accord with Paragraph 1 of Article 24 of "Draft of Convention against Transnational Organized Crime" and the purport of Article 13 of "Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children."
II. Human rights education for public officials, especially judges
Suggestion
1. It is an important United Nations policy to promote the forming of a national human rights institutions in each country, one granted authority in human rights remedy and education. "National human rights institutions" should be specifically inserted between "intergovernmental" and "non-governmental organizations" in Paragraph 12 of the preliminary draft of the Vienna Declaration.
2. A technical human rights education program should be developed and implemented so that judges become familiar with the international human rights protection system. To clarify this, we suggest that in Paragraph 20 of the preliminary draft of the Vienna Declaration, the context be amended as "providing human rights education to officials concerned, including judges."
Reasons
1. Importance of a comprehensive national human rights institutions
We strongly support the view in Paragraph 20 of the preliminary draft of the Vienna Declaration to the effect that the United Nations standards and norms contribute to efforts to deal with crime effectively, in particular trancenational organized crime.
But to make the protection of human rights effective, the establishment of national human rights institution independent of both the administration and the judicial system is required. A method to secure human rights, particularly public monitoring to control the abuse of public power and the human rights remedy system are mandatory for the effective application of criminal justice.
There is no national human rights institutions in Japan that has authority with respect to human rights remedy and education to satisfy the principles relating to the status of National Institutions (the "Paris Principles"). Human rights protection in Japan is under the jurisdiction of the Civil Liberties Bureau of the Ministry of Justice. In connection with the Ministry's Civil Liberties Commission, the Human Rights Committee pointed out in their concluding observations that "the Committee is of the view that the Civil Liberties Commission is not such a mechanism, since it is supervised by the Ministry of Justice and its powers are strictly limited to issuing recommendations." (Paragraph 9)
A true human rights organization is indispensable not only to redress human rights abuse but also to promote comprehensive human rights education.
2. Human rights education for persons engaged in works relating to human rights
Human rights education for public officials responsible for law enforecement is of vital importance to forestall violation of human rights in criminal justice.
In the UN's and Japan's action plans concerning the United Nations Decade for Human Rights Education, the need for this sort of education for persons engaged in works relating to human rights has been emphasized.
The Japan's national action plan designates the following persons as the objects of human rights education: employees of prosecutors' offices, correction and rehabilitation facilities; immigration officers, teachers, persons engaged in social education, medical and welfare personnel, marine safety officer, labor-related public officials, fire officers, police officers, self-defense officials, public officials, and members of the media.
But it fails to include education for diet members, judges and legal trainees. With reference to human rights education for judges, the Human Rights Committee stated in Paragraph 32 of their concluding observations issued in response to the fourth periodic report of the Japanese government "Judicial colloquiums and seminars should be held to familiarize judges with the provisions of the Covenant. The Committee's general comments and Views expressed by the Committee on communications under the Optional Protocol should be supplied to judges". While the Committee's concluding observations were distributed to judges, the national action plan has not been changed.
A valuable contribution to the effective application of criminal justice can be made by providing those, including judges, who engage in works relating to human rights with participational or experience- oriented education, using the human rights covenants, the international human rights standards and the Professional Training Manuals prepared by the Office of the UN High Commissioner for Human Rights. We urge that the amendment as mentioned at the beginning should be made to include the above.
III. Treatment and protection of human rights of criminal suspects in custody
Suggestion
he importance of "Prison Reform," stated in Paragraph 20 of the preliminary draft of the Vienna Declaration, should be supported and human rights education for criminal detention facility personnel aimed at the reconciliation of order in such facilities, and treatment for return to social life should be actively implemented through the UN Technical Assistance Program.
Reasons
1. Overview
apan is known for its low crime rate. The number of prisoners is only 40.4 per 100,000 of its population. There is no problem concerning excess detention, nor are there cases of escape or prisoner assult on guards or fellow inmates. Thus it may be considered that prisoners live in safety. On the other hand, life in Japan's prisons is very hard and sometimes inhumane. As of the end of 1997 number of persons in detention, convicts and the unconvicted alike, totaled 50,894, among whom were 3,215 foreigners. Drug-related crime tops the list of types of crimes, with theft in second place.
2. Characteristics of treatment of prisoners in Japan
Basic characteristics are classified treatment and graduated treatment. In case of the former, problems and requirements of prisoners are examined. With the latter, the numbers of interviews with family and letters increase according to grade. Emphasis in classification is placed on whether it is the first or a repeat offense rather than detention security.
Treatment for correction focuses on criminal labor. Programs such as education and counseling are not active except in prisons for first offenders. As for open prisons, there is only a very small farm-type and there are no systems for outside labor and for leaving and staying out. Whether or not prison treatment can realize good effects depends on staff's zeal and capability.
3. Excessive emphasis on regulation and order
Japanese prisons are characterized by a severe system of regulation and order. On several occasions JFBA has submitted detailed reports to the Human Rights Committee. The Committee studied the Japanese government's report and in November 1998 it publicly announced its concluding observations on the criminal detention system as stated in Note 2.
Serious matters concerning Japan's detention system were summarized in its concluding observations. JFBA shares their views. JFBA submitted a proposal for Criminal Treatment Law to suit international human rights standards in contraposition to the amendment to the Prison Law (Bill for Criminal Facility Law) proposed by the Ministry of Justice in 1982. The conflict between the Ministry's draft and JFBA continues with no revision being made. Based on the concluding observations, JFBA submitted a proposal for amendment focusing on points urgently needing change.
4. Change in the situation of Japanese prisons
A recent peculiarity is that one prisoner sentenced to death was executed, while he had already filed for a retrial. This presents a problem from the viewpoint of the right to have fair trial.
However, there is a slight sign of improvement seen in the rules that govern regulation and order. While rules like prohibiting convicts from taking their eyes off work or talking while working remain, punishment for violating the regulations was changed from direct punishment for a violation to giving a warning, with punishment administered if the warning goes unheeded. Also, instances of using leather handcuffs, which had sharply been criticised as a cruel form of restraint, have been drastically reduced, although not entirely banned.
5. Ministry of Justice
At the end of 1999 the Ministry of Justice approached JFBA to discuss the improvement of treatment of prisoners. This kind of request for an official talk was the first since the discussion on the amendment to the Prison Law was broken off owing to conflicting views between the two in 1987. JFBA intends to accept this request, positively respond to the talks and continue to make constructive suggestions aiming at humane treatment to satisfy international human rights standards.
6. Development and implementation of human rights program for detention facility personnel
The Office of the UN High Commissioner for Human Rights is preparing a manual for human rights education for detention facility personnel. It is extremely important to train such persons with respect to human rights protection and effect a positive return-to-society program using the manual as part of the UN Technical Assistance Program.
IV. Post-conflict technical assistance Suggestions
Suggestion
In support and supplement of the Paragraph 9 of the preliminary draft of the Vienna Declaration, we suggest the following:
1. Consider the immediate technical assistance by international organizations and others so as to minimize the post-conflict confusion.
2. Focus upon the defense system in the criminal proceedings, as well as court system and prosecution system, in rebuilding autonomous criminal justice system after the conflict.
Reasons
1. Overview
As the Discussion Guide for the Congress on the Prevention of Crime points out in the Paragraph 17, in rebuilding the system of the county after the conflict, "The rehabilitation of a criminal justice system capable of ensuring of the maintenance of law and order, with due consideration for the protection of civil rights and basic freedoms, has therefore become one of the top priorities."
International technical assistance for rebuilding of criminal justice system has two steps: immediate measures to conduct criminal trials even in a post-conflict confusion, and full-scale measures to reestablish an autonomous system, including legal training system. Based on the experience of assisting in forming a criminal justice system in Cambodia, JFBA will make the following suggestions.
2. Tachnical assistance to implement immediate judicial system
JFBA would like to put high attention in considering the technical assistance to implement immediate judicial system and provide human resources necessary for the system to secure civil rights and basic freedoms at the post-conflict situation.
Since criminal justice system constitutes core of sovereign power of a nation, it is desirable, where possible, involvement of the foreign powers or persons in the system should be avoided. However, during the period immediately after the conflict, there would be circumstances where the criminal justice system can not sufficiently work based on the physical and human resources available for the nation itself, and crimes and violations of human rights would occur in such a state of mass disorder. The first step will deal with this type of situation.
The UN Transient Authority in Cambodia (UNTAC), for example, established the section dealing with human rights and engaged in activities on crime prevention and human rights protection. Also, in East Timor, early recovery of a trial function is being sought. A thorough study of these examples is required.
3. Technical assistance for recovery of autonomous justice system
In terms of the full-scale measures for recovery of autonomous justice as the second step, JFBA would like to stress the importance of defense activities for defendants, the legal training to legal profession including defense lawyers, legal aid and public lawyer system, and the international cooperation of bar associations.
It is needless to mention that the importance of defense lawyers role in criminal proceedings. Nevertheless, it tends to be treated as secondary to the establishment of court system and prosecution system
Defense activities in the criminal proceedings perform important function: firstly, criminal defense is indispensable in securing the procedural rights of defendants and in preventing a court from making wrong judgement. Secondly, it plays the important role to help rehabilitate the convicts and prevent them from committing the next crime.
Accordingly, it is essential to secure sufficient defense activities from the early stage of rebuilding and recovery of the relevant system. For this purpose, legal training, legal aid and the public lawyer system should be established and it is necessary for bar associations to take part in international cooperation in this field.
V. Support for victims Suggestion
Suggestion
In full accord with Paragraph 25 of the preliminary draft of the Vienna Declaration, we welcome international action plans to introduce judicial systems in support of victims of crime and for mediation and restorative justice.
Reasons
There have been no noteworthy activities by the Japanese government for the victims of crime, except the Compensation to Crime Victim Act (hanzai-higaisyatou kyuuhukin sikyu-ho) in 1980. The application of the Act is limited to cases in which death and serious handicaps are involved.
As the UN Human Rights for Victims Declaration in 1985 requested, it is necessary to establish systems to give sufficient information to victims, provide appropriate support to them, and maintain the safety and privacy of themselves as well as their family. It is also necessary to provide support to help them recover appropriately and quickly from mental, physical and economical damage.
It is desirable that a extensive law for victims of crime be enacted and that the law provide for prevention of secondary damage, access to the information of the relevant cases, support for judicial procedures, and promotion of mediation and restorative justice. JFBA also welcomes that the action plans described in Paragraph 25 of the preliminary draft of the Vienna Declaration will be internationally established. In October 1999, JFBA released "Proposal concerning the Overall Support for Victims of Crime" and in March 2000 a bill for a statute to protect the victims of crime was approved at the cabinet meeting of the Japanese government.
VI. Women and criminal justice system Suggestions
Suggestion
1. JFBA agrees with the Paragraphs 10 and 11 of the preliminary draft of the Vienna Declaration and requests that they be adopted. As concrete step to incorporate gender perspective in the Programme, each nation should consider to incorporate in the domestic criminal proceedings, the gender perspective in the court system and protection of victims and witnesses during trial.
2. JFBA supports Paragraph 13 of the preliminary draft of the Vienna Declaration, and expects further discussion in the international society and effective policy to be considered in each country in order to eliminate violence toward women and children as well as trafficking of human beings.
Reasons
1. Necessity of gender perspective in the international laws on criminal procedures
In the rules on International Criminal Court adopted in July 1998, substantial provisions were included for the protection of victims and witnesses to protect them from acts of revenge and prevent destruction of evidence. These measures help safeguard the privacy and mental stability of victims and witnesses during trial, particularly in the case of female witnesses and victims. This will also promotes female victims and witnesses to formally accuse crimes and cooperate with criminal investigation, and consequently contributes to crime prevention. As the same reason, it serves for crime prevention that the rules request due attention on gender equality in court system and judge selection to incorporate expert on violence cases toward women and children, since it makes it easier that female victims can accuse crimes and that such crimes are subject to fair punishment.
Since specific measures based on gender perspective are specified in the provisions in the rules on international criminal court procedures, such measures should be taken in the criminal procedures of each country. The current status of criminal justice concerning women is explained in Note 3.
2. Elimination of trafficking in women
As Paragraph 13 of the preliminary draft of the Vienna Declaration states, to eliminate trafficking in women, the draft of the Protocol of the United Nations Convention against Transnational Organized Crime is currently being elaborated. We expect further discussion in the international society and development of policy on this issue in each country in order to strengthen international human rights laws concerning this topic.
Note 1: ICCPR Concluding observation of the Human Rights Committee (CCPR/C/79/Add.102 19 November 1998)
1. Pre-trial detention (Paragraph 22)
The Committee is deeply concerned that the guarantees contained in articles 9, 10 and 14 are not fully complied with in pre-trial detention in that pre-trial detention may continue for as long as 23 days under police control and is not promptly and effectively brought under judicial control; the suspect is not entitled to bail during the 23-day period; there are no rules regulating the time and length of interrogation; there is no State-appointed counsel to advise and assist the suspect in custody; there are serious restrictions on access to defense counsel under article 39(3) of the Code of Criminal Procedure; and the interrogation does not take place in the presence of the counsel engaged by the suspect. The Committee strongly recommends that the pre-trial detention system in Japan should be reformed with immediate effect to bring it in conformity with articles 9, 10 and 14 of the Covenant.
2. Daiyo Kangoku (Paragraph 23)
he Committee is concerned that the substitute prison system (Daiyo Kangoku), though subject to a branch of the police which does not deal with investigation, is not under the control of a separate authority. This may increase the chances of abuse of the rights of detainees under articles 9 and 14 of the Covenant. The Committee reiterates its recommendation, made after consideration of the third periodic report, that the substitute prison system should be made compatible with all requirements of the Covenant.
3. Monitoring suspect interrogation to gain a confession and electronic recording (Paragraph 25)
The Committee is deeply concerned about the fact that a large number of the convictions in criminal trials are based on confessions. In order to exclude the possibility that confessions are extracted under duress, the Committee strongly recommends that the interrogation of suspect in police custody or substitute prisons be strictly monitored, and recorded by electronic means.
4. Disclolosure of evidence (Paragraph 26)
The Committee is concerned that under the criminal law, there is no obligation on the prosecution to disclose evidence it may have gathered in the course of the investigation other than that which it intends to produce at the trial, and that the defense has no general right to ask for the disclosure of that material at any stage of the proceedings. The Committee recommends that, in accordance with the guarantees provided for in article 14, paragraph 3, of the Covenant, the State party ensure that its laws and practice enable the defence to have access to all relevant materials so as not to hamper the right of defence.
Note 2: ICCPR Concluding observation of the Human Rights Committee (CCPR/C/79/Add.102 19 November 1998)
1. Prisoners on death row (Paragraph 21)
The Committee remains seriously concerned at the conditions under which persons are held on death row. In particular, the Committee finds that the undue restrictions on visits and correspondence and failure to notify the family and lawyers of the prisoners on death row of their execution are incompatible with the Covenant. The Committee recommends that the conditions of detention on death row be made humane in accordance with articles 7 and 10, paragraph 1, of the Covenant.
2. Prison system (Paragraph 27)
The Committee is deeply concerned at many aspects of prison system in Japan which raises serious questions of compliance with articles 2, paragraph 3 (a), 7 and 10 of the Covenant. Specifically, the Committee is concerned with the following:
(a) Harsh rules for conduct in prisons that restrict the fundamental rights of prisoners, including freedom of speech, freedom of association and privacy;
(b) Use of harsh punitive measures, including frequent resort to solitary confinement;
(c) Lack of fair and open procedures for deciding on disciplinary measures against prisoners accused of breaking the rules;
(d) Inadequate protection for prisoners who complain of reprisals by prison warders;
(e) Lack of a credible system for investigating complaints by prisoners; and
(f) Frequent use of protective measures, such as leather handcuffs, that may constitute cruel and inhuman treatment.
Note 3: The status concerning women and criminal justice in Japan
1. Women as victims
[1] Response by the police
While the government has finally started to move, there are still cases in which the police are reluctant to receive a complaint, or an officer asks for an explanation of a victim's sexual molestation merely out of curiosity, or male officer interviews rape victims when a female sex-related victim lodges a complaint about a rape, other sex-related crimes or violence by her husband or lover. There are also cases wherein police inadequacy to follow up a complaint by the victim of a stalker led to serious situations such as murder.
[2] At the stage of trial
Under the present system, there is a few instances of an open trial being suspended or the accused being removed from the courtroom as a means to protect the victimized woman. There are no rules concerning the limitation of evidence for the protection of privacy. According to the main points on the arrangement of laws to protect victims of crime as stated in its 22 February 2000 report, the Legislative Council agreed to examination of witnesses via video-link, separating witnesses from the accused and witness being accompanied by an attendant for the protection of privacy and mental peace of molested complainants, in connection with indecent assault, rape, obscene acts against children and paying children to engage in sex. Arrangements of laws at an early stage making use of the report is most desirable under the present conditions
[3] Foreign and juvenile prostitutes
i. Foreign women forced into prostitution
In the "Special Report on the Suppression of the Traffic in Person and of the Exploitation of the Prostitution of Others" issued by the United Nations Economic and Social Council in 1983, Japanese male tours to Southeast Asia to purchase sex, the organized import of women by gangsters(YAKUZA), and bathing in a private room (for sex) were taken up. Such situation remains unchanged. Among those culpable for transnational trafficking in person are organized groups such as the Manila Connection, and the YAKUZA Connection in the Philippines, the Chinese Syndicate in Thailand, and reportedly they are tightly linked with Japanese gangster (YAKUZA). It is easy for women placed under monitoring of crime organizations of both sending and receiving countries to become prostitutes. It is particularly noted that many women from farm or fishing villages in rural Thailand are brought to Japan without being told what to expect. There are a great many, since they are invited to work in factories or as shopgirls, baby-sitters, maids, etc., who naively believe such lies. During one year of 1991 fully 3,000 Thai women took refuge in the Thai Embassy in Tokyo and in 1992, 300 to 350 women per month fled to it.
It is essential that the authorities concerned including police of each country make a thorough exposure of crime syndicates through international cooperation.
ii. Juvenile prostitution
Although the Regulations for Juvenile Protection and Fostering, which includes the regulations on the "telephone club trade", a cesspool of prostitution by young girls, and punishment clouses for obscene habits, have been enacted, use of the telephone club and have sexual intercourse through the telephone club have not diminished. The Law for Punishing Acts Related to Child Prostitution and Child Pornography, and for Protecting Children became effective in November 1999. It is necessary to protect human rights and the rights of sexual freedom of children when enforcing this law.
2. Judicial system
[1] Low Statutory Penalty
While five years or more of imprisonment is imposed for robbery, a rapist will draw only two years or more. Seven years or more is the statutory penalty for robbery causing bodily injury, but a rapist who causes bodily injury gets off light with only three years or more. Under the present Penal Code of Japan, sexual freedom of women is in a lower position than that of goods or money. This is wholly unreasonable and the penalty for rape with or without bodily injury should be heavier.
[2] Limitation on period of complaint
Rape is a crime indictable upon complaint by a victim and the complaint must be filed within a period of six months after the act. As it is too short, victims are apt to lose their chance to file. After the period has passed, the rapist will go unpunished. As Legislative Council expreseed their opinion as mentioned above, limits on this period should be abolished. Japannese government has finished preparations for submitting a bill regarding this in March 2000.
[3] The difficulty of getting an indictment for child abuse due to such act being indictable upon complaint.
Since rape is a crime indictable only upon complaint, a legal representative has the right to file a complaint if the victim is a juvenile. In such cases, the mother of a victim accuses her husband, or the victim's parents accuse their blood relative, and therefore in most cases a complaint is not filed. In reality it rarely happens in Japan that rape of a close relative is punished. (In fact, in 1999 among all the rape cases cleared, there were none in which the victim was a child by birth or even adopted child and only one in which the victim was a stepchild. Concerning forcible indecency, there were only two cases in which the victim was a child by birth or adopted child and none where the victim was a stepchild.) To overcome this, rape should be changed from a crime indictable only upon complaint, or a new regulation that rape of a close relative independent from ordinary rape, without making it a crime indictable upon complaint, should be enacted.
3. Problems in carrying out punishment clauses
[1] Imperfect investigation of YAKUZA (Japanese criminal organizations) related cases
In many cases, YAKUZA are involved in prostitution and it forms a major source of revenue for YAKUZA. Of 267 YAKUZA cleared in 1995, 223 (83.5%) were offenders of the Anti-Prostitution Law. In addition to the use of transfer and cellular phones at the usual prostitute dispatching centers, like "date clubs," etc., anti-regulation methods are quite elaborate as seen in the separation of prostitute reception and waiting places and short interval movements. To realize thorough exposure and clearance of cases of prostitution involving YAKUZA, greater ingenuity must be exercised with investigation much more thorough. Endeavors must be made to correct Japanese society as a whole, which is so wont to purchase sex.
[2] Irrationality in finding violence and threat
It is interpreted and applied in Japanese court that, for violence and intimidation to be acknowledged, they must be of a type that makes resistance very difficult. Consequently there was a case in which an accused was found not guilty even if the victim could not resist because of fear. This is highly unreasonable as it demands that women resist at the risk of their life.
[3] Irrationality in finding victim's consent
There are cases in which women have been found to imply consent to sexual conduct, and cases exist in which the court has found implied consent' due to the woman's conduct, or because the women did not resist.
Japanese courts have clearly made little progress in their analysis or research in dealing with victims response to sexual assault.
[4] Light punishment
Sentences for rape are extremely light compared with those for robbery. This stems from the thought of the era when women were virtually in the category of a man's possessions. From the fact that "Not a few victims offer money and goods to avoid being raped" and "Some even kill themselves after being raped but no one commits suicide after being robbed," certain judges mentioned that the sentence for rape should be heavier, but it has not changed. (Legal research report of Judge Onizuka 17-3 = Empirical study of degrees of sentencing [Rape] from Page 288)
4. Persons involved in legal procedures such as judges, prosecutors, attorneys and law enforcement officials
In Japan education and training from a gender perspective are not sufficiently provided to policemen, prosecutors, judges, attorneys etc., who are engaged in interviewing victims of violence against women, accusation, consultation, redress, etc., in terms of ensuring respect of human rights of women.
As mentioned above, light sentencing and unreasonable factors in the forming of a crime show the need for greater perspective regarding gender on the part of judges.
Concerning violence against women by their lovers or husbands, the fact remains that persons involved in leagal procedures such as the police, attorneys, judges do not regard it as a crime.
5. Investigation and policy for violation against women
In Japan the results of the first survey on the actual state of violence against women were made public in February 2000. But there has been no survey of gender bias by persons concerned with judiciary practices. To eliminate violence against women and aim to prevent and redress such violence, the government should further improve its surveys and research based on a gender perspective.
Moreover, Japan has yet to acknowledge its legal responsibility for the victims of "jugun-ianfu (comfort woman)" forced to slave in brothels during World War II. The issue of these victims stemmed from discrimination against women and against foreign women. So that this kind of violation against human rights will not be repeated, Japanese government must assume its legal duty as a nation by probing the facts of its "Comfort woman" system, taking restorative measures for the victims and teaching the truth of its history.
