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Statement on a Death Sentence Handed Down to a Juvenile

Today, the Supreme Court dismissed an appeal filed by a defendant who was sentenced to death for killing a mother and her baby in Hikari City, Yamaguchi Prefecture (the so-called, “Yamaguchi-ken Hikari-shi Case”) in April, 1999. The defendant was 18 years and one month old at the time when he committed the crime.


This juvenile was first sentenced to life imprisonment by both a district court and a high court. In the first final appeal, however, the Supreme Court reversed this sentence and sent the case back to the high court which then handed down a death sentence. This is a highly unusual case.


This is the first ruling to finalize a death sentence of a defendant who was a minor at the time of their crime for killing two persons since the Supreme Court’s ruling on the Nagayama Case (July 8, 1983), in which the defendant, who was a minor at the time of his crime, was sentenced to death taking into account the number of victims (four were killed) and which is often referred to as a precedent for setting out the criteria to be used when handing down the death sentence.


Regarding the death penalty, on December 15, 1989, the United Nations (UN) General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, which subsequently entered into force in 1991. Since April 1997, the UN Commission on Human Rights (reorganized into the UN Human Rights Council in 2006) has adopted resolutions on the abolition of the death penalty calling upon all States that have not yet abolished the death penalty, such as Japan, to observe the UN Safeguards guaranteeing protection of the rights of those facing the death penalty and to consider suspending executions, with a view to completely abolishing the death penalty. In October 2008, the UN Human Rights Committee recommended that, regardless of the results of public opinion polls, the Japanese government should favorably consider abolishing the death penalty and inform the public, as necessary, about the desirability of such abolition.


The number of countries which have abolished the death penalty has been steadily increasing. Currently, only 57 countries (decreasing in number from 96 countries in 1990) still retain the death penalty, while 141 countries (increasing in number from 80 countries in 1990) have abolished the death penalty by law or in practice as they have not conducted any executions for more than ten years. It is apparent that the international trend is toward the abolishment of the death penalty.


In addition, the Convention on the Rights of the Child, which took effect in 1994 in Japan, guaranteeing the juveniles’ right to growth and development, and the UN Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), recalled by the said Convention, define that, “A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult,” and stipulate that, “Capital punishment shall not be imposed for any crime committed by juveniles.”


Under these circumstances, despite that the Supreme Court denied the planned nature to the crime and stated that the defendant had no criminal record and that there may be a possibility of rehabilitation, the Court finalized the death sentence on him on the grounds of the serious consequences of the crime, his bad conduct after the crime and his unreasonable excuses provided during the appeals trial, which implied that there was no sign of remorse or serious repentance.  This decision was made without taking into account the nature of juvenile crimes and is truly regrettable.


In the judgment, Justice Koji Miyakawa expressed his dissenting opinion that the death sentence should be overturned and that the case should be sent back to the high court. A concurring opinion of Justice Seishi Kanetsuki was also included in the judgment from a majority’s standpoint. It should be noted that it was unusual for a dissenting opinion to have been included in a Supreme Court judgment relating to a death sentence.


In his dissenting opinion, Justice Miyakawa set forth a criterion that, “When it can be deemed from the evidence that the level of mental maturity of a defendant is considerably lower than that of 18 years old, there are particular extenuating circumstances sufficient to avoid a death sentence.” He continued that based on the interrogation records and two expert opinions, the appeals court should have analyzed and evaluated the effects on the mental development of the defendant caused by the physical abuse by his father and the suicide of his mother as well as the level of his mental maturity at the time of his crime. The Justice also expressed his view that with mental support and appropriate treatment, the defendant could reform himself and properly face up to his crime. This opinion shows consideration of nature of juvenile crimes and such an attitude is essential when examining juvenile cases.


On October 7, 2011, with a desire to bring about a society free of the death penalty, the Japan Federation of Bar Associations (JFBA) adopted a “Declaration Calling for Establishment of Measures for Rehabilitation of Convicted Persons and Cross-Society Discussion on Abolition of the Death Penalty” at its 54th Convention on Protection of Human Rights, calling for consideration to be given to the abolition of the death penalty. On the occasion of this ruling, the JFBA reiterates its request for the government to thoroughly engage in discussions toward achieving the abolition of the death penalty for juveniles who were minors at the time of their crimes.


February 20, 2012
Kenji Utsunomiya
Japan Federation of Bar Associations


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