JAPAN: The Death Penalty
For the United Nations Universal Periodic Review of Japan [6-17 November 2017]
Submitted by ADPAN (Anti-Death Penalty Asia Network) and 14 Civil Society Organisations (CSOs) listed below
Since the last UPR of Japan in 2012, 26 persons have been executed from 2012 to 2017, whereby 2 have been executed in 2017. A total of 36 death sentence have been finalized from 2012 to 2016. As of the end of 2016, there are 128 persons on death row.
Death penalty continues to exist in statute books for crimes that do not result in the death of any victim.
Whilst, we continue to call for the abolition of the death penalty in Japan, and for a moratorium on all executions pending abolition, we would like to highlight specific concerns concerning the death penalty and unfair trials, which we hope would form part of UN member states recommendations at the upcoming UPR.
|In brief, besides calling for the abolition of the death penalty, and an immediate moratorium on all executions, we are hoping that the following specific recommendations be made to made to Japan:-
– That Japan makes it a requirement that no one shall be sentenced to death unless the decision of the court, including ‘lay judge system’ courts, is unanimous.
– That no one is executed until and unless cases are reviewed and considered by all existing appellate courts and clemency processes in Japan. We recommend a Mandatory Appeal System and Clemency Processes for all capital penalty cases.
A. REFORM OF THE ‘LAY JUDGE SYSTEM’ COURTS – UNANIMOUS DECISION FOR DEATH PENALTY
- In 2009, a new trial system was introduced, known as the ‘lay judge system’, whereby serious cases like murder that carry the death penalty are conducted before 6 ordinary citizens and 3 career judges. All that is required for the death penalty to be imposed is a simple majority, which includes 1 vote from one of the 3 career judges.’
- As of March 2015, prosecutors have sought the death penalty for 31 persons, and the ‘lay judge system’ courts have handed down the death penalty for 23 cases, which is about 74%. In comparison, when such cases were tried and finalized between 1980 and 2009 before career judges, only about 55% received the death sentences in cases where the prosecution sought the death penalty.
- There is an unnecessary and even dangerous risk of injustice for a person to be sentenced to death in a situation when the decision of the court is only based on a simple majority decision of a ‘lay judge system court’. This is because legally trained and experienced judges are typically more likely to apply reason and law dispassionately to the facts. In serious cases of dreadful crimes, international experience over time and cultures shows that legal training and experience are essential qualities in the application of fair legal reasoning. After all, that is why all countries have legally trained people administering justice. Under the lay judge system at this time, the experienced legally trained judges can be outvoted by the lay jury.
- Justice demands that a decision to impose the death sentence should be unanimous. In the United States of America, a conviction and a death sentence requires a unanimous jury verdict in the Federal Government and all states save 2. Two states, Louisiana and Oregon, permit convictions on less-than-unanimous jury verdicts. In both states a defendant can be convicted by an 11-to-1 or 10-to-2 vote. This is a similar position that exists in many other jurisdictions, which still have the jury system when it comes to criminal cases.
- Overwhelmingly, although it is expressed in different language in different systems, courts need to be satisfied beyond reasonable doubt before a finding of guilt in serious criminal matters. This is a much higher standard than ‘on balance’ or ‘by majority’. Similar reasoning should apply to the question of whether to execute – the tribunal should be satisfied by a significant margin. We say that a unanimous verdict should be required before a person is to be put to death.
- As such, in the Japanese ‘lay judge system’ courts, a simple majority decision of a panel of 9 persons (6 lay persons and 3 judges) has the potential to be unjust. The fact that 4 other persons, which may also include 2 of the 3 experienced career judges decided not to convict and/or impose the death penalty is very relevant and should not be ignored.
That Japan makes it a requirement that no one shall be sentenced to death unless the decision of the court, including ‘lay judge system’ courts, is unanimous.
B. MANDATORY APPEALS AND CONSIDERATION FOR CLEMENCY BEFORE EXECUTION
7. On 13/7/2017, Koichi Sumida and another were executed at the Hiroshima Detention Center and Osaka Detention Center respectively.
8. Sumida was sentenced to death in lay judge trial held in February 2013, and there were no appeals, which means that no higher courts and/or bodies had the opportunity of reviewing the decisions of the first court.
9. This is the third execution of an inmate whose death sentence that was imposed by the ‘lay judges system’ courts did not go on appeal to the High Court, or the further appeal to the Supreme Court.
10. The reasons why this persons who were sentenced to death did not choose to exercise their right to appeal is a mystery.It is not clear why they did not file appeals, or why they later chose to withdraw their appeal as was by Sumida.
11. Some, amongst death row inmates call this “volunteer”. Some just wish to be executed, having given up the will to live. It is akin to a desire to commit suicide.
12. It is a fact that courts can make mistakes, and it is not uncommon in mostjurisdictions that appeal courts do overturn convictions and/or sentences.
13. As an example, it must be pointed out that the Tokyo High Court, did overturn lay judges court’s decisions to impose the death penalty in three cases, which were subsequently upheld by the Supreme Court in 2015. The absence of an appeal, would have not allowed the High Court and/or higher courts correct errors made and save lives.
14. In many jurisdictions, in capital cases, a plea of guilty will not be accepted. The trial will have to proceed to enable the courts to make its own determination based on the evidence adduced, that the said accused person is proven to be guilty in accordance to the required standard of proof in a criminal case, and thereafter whether evidence adduced and the circumstances of the case justify the imposition of the death penalty.
15. The rationale behind this practice in capital cases, is the desire of the State to ensure that there is no miscarriage of justice, and no innocent person or convicted person not deserving to be sentenced to death, is wrongly sentenced to death.
16. Applying the same rationale, there is a need to put in place a mandatory appeal system, that will require all cases of persons sentenced to death, to have their cases mandatorily brought before the Appeal courts in Japan, to enable the Appellate courts to review not just the death penalty, but also the conviction that resulted in the death sentence.
17. In the case of Japan, this would mean that there shall be an appeal to the High Court, and thereafter a further appeal to the Supreme Court for all cases where the convicted has been sentence, irrespective of whether the convicted chooses not to appealthe conviction, and/or the death sentence.
18. In the same way, after all appeals are done, all cases that carry the death sentence, shall go through the existing clemency process in Japan, noting that a such process could also decide to commute the death sentence to a prison sentence, or even result in a full pardon in exceptional cases.
19. In such capital cases, if the accused and/or convicted, do not have a lawyer, then the court shall appoint a lawyer to act on behalf of the said accused.
That no one is executed until and unless cases are reviewed and considered by all existing appellate courts and clemency processes in Japan. There should be a Mandatory Appeal System and Clemency Processes for all capital penalty cases.
We refer also to the earlier submission made by the Advocates for Human Rights, the Center for Prisoners’ Rights and the World Coalition Against the Death Penalty and state our support for the recommendations made therein.
Dated: 13 September 2017
Anti-Death Penalty Asia Network(ADPAN)
Center for Prisoners’ Rights Japan
Forum 90, Japan
Inter-religious Network “Stop the Death Penalty!”, Japan
Japan Catholic Council for Justice and Peace, Sub-Committee for Abolition of the Death Penalty
Jesuit Social Center Tokyo
MADPET (Malaysians Against Death Penalty and Torture)
Legal Awareness Watch (LAW), Pakistan
Christian Development Alternative (CDA), Bangladesh
Norden Directions, Australia
Democratic Commission for Human Development, Pakistan
Think Centre, Singapore
Civil Rights Committee of Kuala Lumpur And Selangor Chinese Assembly Hall, Malaysia