COMMITTEE AGAINST TORTURE EXAMINES REPORT OF JAPAN
22 May 2013
The Committee against Torture today concluded its consideration of the second periodic report of Japan on how it implements the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Hideaki Ueda, Ambassador in charge of Human Rights and Humanitarian Affairs at the Ministry of Foreign Affairs of Japan, said that Japan had taken steps and measures to ensure appropriate interrogation and examination procedures both by prosecutors and police officers. In 2009, it established an expert committee to ensure transparency of the treatment and improve management at immigration detention facilities. Japan became a State party to the Rome Statute in 2007 which was a clear demonstration of its resolve to end impunity for the perpetrators of the most serious crimes of concern to the international community, including torture. In December 2009, the Action Plan to Combat Trafficking in Persons had been adopted, which promoted coordinated measures of prevention, elimination and protection by relevant ministries and agencies.
Committee Experts were concerned about the terminology in the Japanese legislation regarding torture and wondered whether it covered the whole range of acts of torture and cruel, inhuman or degrading treatment or punishment. Experts noted that Japan had increased the capacity of prisons and wished to hear more about steps to address overcrowding and living conditions in places of detention, particularly in women’s prisons. Inmates on death row spent a long time waiting for the execution, which would then often be carried out without much prior warning. Committee Experts also spoke about solitary confinement in prisons; spousal violence and violence against women; incidence of trafficking in human beings and data on investigations and prosecutions; the complaints system for women victims of violence; and steps to deal with impunity for crimes committed during World War II, prosecute those responsible and provide compensation to victims.
Responding to questions and comments raised by the Committee members yesterday, 21 May and today, the delegation said that there was an absolute constitutional prohibition of infliction of torture and cruel punishment by public officials, and confessions extracted under compulsion, torture or a prolonged period of detention were not admissible in courts. In April 2008, the Public Prosecution’s office had announced a policy to ensure appropriate interrogation including the right of a suspect to a counsel; all those who could not afford one and were charged with serious crimes were provided with a counsel paid for by the State. The notification of the execution of capital punishment was done shortly before the execution itself to avoid inflicting mental pain and families were informed immediately upon the execution. The number of detainees in prisons was on the decline, which contributed to reducing overcrowding and Japan would continue to undertake measures to further reduce it and improve living conditions in prison facilities.
The delegation of Japan consisted of representatives from the Ministry of Foreign Affairs, and the Ministry of Justice including the Minister’s Secretariat, Criminal Affairs Bureau, Correction Bureau and Immigration Bureau, and the National Police Agency.
The Committee will next meet in public at 3 p.m. on Thursday, 23 May to conclude its consideration of the fifth periodic report of Estonia (CAT/C/EST/5).
Report of Japan
The second periodic report of Japan can be read via the following link (CAT/C/JPN/2).
Presentation of the Report of Japan
HIDEAKI UEDA, Ambassador in charge of Human Rights and Humanitarian Affairs, Ministry of Foreign Affairs of Japan, introducing the report of Japan, said that the Public Prosecutor’s Office had publicized measures in an effort to further ensure securing appropriate interrogation procedures, which stipulated the obligation of a prosecutor to report a suspect’s dissatisfaction regarding interrogation to the final decision-maker; the necessary investigation must then be conducted and appropriate steps taken before explaining the outcome to the suspect or his representative. In July 2011, an Inspection Guidance Division had been established at the Supreme Prosecutor’s Office which had a system in place to identify illegal and inappropriate acts by prosecutors and others. The National Police Agency had in January 2008 introduced the policy on ensuring the propriety of examinations in police investigations, which promoted measures such as strengthening the supervision of interrogations. The Japanese police continued to separate the functions of investigation and detention, which had been put into statutory form in the Act on Penal Detention Facilities and the Treatment of Inmates and Detainees of 2007. Human rights were being given due consideration in police operations through the regular inspection of detention facilities and a system to deal with detainees’ appeals. In July 2009, Japan had amended its Immigration Control and Refugee Recognition Act to specify that in cases of deportation, the destinations would not include countries with conditions like those prescribed in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. An expert committee had been established to ensure transparency of the treatment and improve management at immigration detention facilities.
Japan had become a State party to the Rome Statute in 2007 which was a clear demonstration of its resolve to end impunity for the perpetrators of the most serious crimes of concern to the international community, including torture. With regard to the education and training of public officials, Japan was proactively introducing human rights courses in the curricula to make sure that the purposes and principles of the Convention against Torture and other human rights instruments permeated all public services. In December 2009, the Action Plan to Combat Trafficking in Persons had been adopted, which promoted coordinated measures of prevention, elimination and protection by relevant ministries and agencies. In order to ensure the thorough protection of victims of human trafficking, Japan had compiled in July 2011 a set of viewpoints for the protection of victims and measures to be taken by relevant administrative organizations. Japan made constant efforts to eradicate torture and other forms of cruel and degrading treatment and was engaged in a range of international cooperation activities; it was committed to continuing to work for the betterment of its domestic human rights situation and to contribute to the protection and promotion of human rights in the international community at large, particularly in Asia and the Pacific.
Questions from Committee Experts
FERNANDO MARIÑO MENENDEZ, Committee Expert and Rapporteur for the Report of Japan, said that States had an obligation to define torture as a stand-alone crime pursuant to the definition of the Convention and to take measures to prosecute and punish acts of torture. In Japan, cases of torture were covered by criminal legislation, but there was an issue in terminology used to define those charges and the Committee was concerned whether it covered the whole range of acts of torture and cruel, inhuman or degrading treatment or punishment. Was there a legal mechanism in place that actually used the term torture in the definition of torture, rather than aggression and cruelty, as was the case? Japan had ratified the Rome Statute, but torture was not an international crime of the first degree, but it was a form of genocide; genocide, war crimes and crimes against humanity could contain torture. There was a whole series of international instruments that used the term torture and this could present a problem for the Japanese legal system. The system of investigation and questioning in Japan was questionable and the Rapporteur asked about the dual system in which some detainees went to the police holding cells and others were sent to detention or prison centres?
Taking up the issue of demands for asylum, Mr. Marino Menendez noted the long time between the request and the decision on the demand for asylum and asked about the status of humanitarian asylum, existence of the complaint procedure for asylum seekers, the application of the principle of non-refoulement, the situation with irregular migrants, and the treatment of people with an irregular migration status. The death penalty was declining across the world and it would be ideal to definitely abolish it. The Country Rapporteur also asked whether abortion was a crime in all cases; whether the crimes of rape and sexual violence could be punished ex officio; about a system to provide an urgent response to claims of domestic violence; and whether the Government of Japan was considering the ratification of the Optional Protocol to the Convention against Torture and the setting up of the national preventive mechanism.
GEORGE TUGUSHI, Committee Expert and Rapporteur for the Report of Japan, took up the issue of the statute of limitation, which had been abolished for crimes punishable by the death penalty and for homicide, and expressed concern whether it covered all acts of torture; what laws could be used to prosecute perpetrators of torture and what was the statute of limitation in place for each of those crimes? The Committee had previously expressed concern about the lack of an independent mechanism to conduct investigation into police conduct during investigations; how many complaints of torture or ill treatment in detention were being filed and how were the witnesses protected? Since torture was not included as a separate offence in Japanese law, how were the offences that amounted to torture and ill treatment recorded in the official systems of data and statistics? What was the benefit system for crime victims and how did it apply to victims of torture? There was a concern that victims of torture did not receive redress and the Rapporteur asked for more information in this regard. Up to 200,000 women had been forced into sexual slavery by the Japanese military during the World War II and those seeking redress demanded an apology and economic compensation; what was being done in this regard, how were the requests for redress being recorded, and how was the public being educated on this issue of the past?
Mr. Tugushi noted that in July 2010 the Immigration Detention Facilities Committee had been formed to conduct visits to places of detention and receive complaints by detainees and asked a number of questions about minor migrants and their detention. Japan had increased the capacity of prisons and the delegation was asked to provide more information about steps taken and to be taken to address overcrowding and living conditions in places of detention, particularly in women’s prisons. Japan had one of the highest rates of patients held involuntarily in psychiatric systems; what were the plans to develop the outpatient system and so reduce this number and how were the courts involved in the system? The Country Rapporteur also asked a number of questions concerning solitary confinement in prisons and the steps taken to ensure that detainees were not subjected to extended periods of solitary confinement; about spousal violence and violence against women; and about the number of complaints related to trafficking in human beings and why so few human trafficking arrests were prosecuted.
Another Expert took up the issue of arrests and asked a number of questions including about grounds on which arrests took place, whether the person was informed of his or her rights, and how long it took between the arrests and the appearance in court. Complaints of torture could be heard by the judge hearing the case; were judges adequately trained to identify cases of torture?
Committee Experts asked a number of questions about places of detention and asked the delegation to explain whether unannounced visits were possible. Inmates on death row spent a long time waiting for the execution, which would then often be carried out without much prior warning. The solitary confinement in Japan could last a long time and could be renewed on a monthly basis, and the Expert drew the attention of the delegation to the study on solitary confinement issued by the Special Rapporteur on torture in 2011 that considered solitary confinement as a harsh measure contrary to the rehabilitation purpose of the penitentiary measure. Solitary confinement for a period longer than 15 days could cause lasting damage and should be subject to absolute prohibition.
Other Experts also asked the delegation about the training of specialized personnel working with people in detention and particularly about the place of the Istanbul Protocol in this training; the complaints system for women victims of violence and the action taken by the authorities on the investigation of complaints and the protection of victims; and the steps to deal with impunity for crimes committed during World War II, prosecute those responsible and provide compensation to victims.
Responses by the Delegation
In response to these questions and comments and others, the delegation of Japan said that acts of cruelty or intimidation committed by public officials were defined as acts of torture in the Japanese legislation. The infliction of torture and cruel punishment by public officials were absolutely prohibited in the Constitution and confessions extracted under torture were not admissible in courts. In April 2008, the Public Prosecution’s office had announced the policy to ensure appropriate interrogation including the right of a suspect to a counsel. The delegation provided statistics concerning audio-visual recordings of interrogations that had been conducted since April 2011. Injury, assault, unlawful detention and confinement, and other acts of violence were punishable under the Penal Code. Abortion was criminalized and was considered a feticide. The statute of limitations did not apply to crimes of homicide and crimes punishable by the death penalty.
There were a number of indictments for crimes of human trafficking and prostitution. Child abuse cases were prosecuted under various crimes, such as homicide, neglect and abandonment. Under the Criminal Code of Procedure, detention in cases without merit had to be revoked ex officio. Confessions made under compulsion, torture or a prolonged period of detention could not be used as evidence. The interrogation of the accused was one of the principal means of gathering evidence and truth in investigations; the custody of the accused was limited to a maximum of 23 days which meant that interrogations had to be conducted using a speedy procedure, further hampering the investigation procedures.
Access to defense counsel was the right of all detainees and for all those who could not afford one and were charged with serious crimes, one was provided by the State free of charge. If corporal punishment of a child went beyond the conventional norms and social custom, it would be punished under the Penal Code. Japan needed to give due consideration to raising the age of consent for sexual acts.
Concerning the treatment of detainees in penal facilities, the delegation said that interrogations were conducted during daytime, while death row inmates who suffered from mental disorders were given additional health checks; Japan would further assess the situation of death row inmates and address the situation accordingly. The notification of the execution of capital punishment was done shortly before the execution itself to avoid inflicting mental pain. Advance notice was not given to the families so that they did not suffer mental pain; families were informed immediately upon the execution. Complaints mechanisms in detention facilities ensured the confidentiality of the claim, while reprisals against detainees filing a complaint were prohibited.
Turning to questions asked concerning overcrowding and living conditions in prisons, the delegation said that the number of detainees in prisons was on the decline, which contributed to reducing overcrowding; Japan would continue to undertake measures to further reduce it. As far as female prisons were concerned, the capacity had been expanded by 600 places and the transfer of inmates from one facility to another had also taken place in order to strike a better balance. Measures were being taken to ensure heating in prison cells in cold climates. As far as medical staff in prisons was concerned, there were 178 doctors, 318 nurses and 66 pharmacists as of April 2013. Following the recommendations of the Penal Institutions Visiting Committee, penal facilities were making efforts to improve the training of their staff. The Penal Institutions Visiting Committee could visit any facility and could also conduct unannounced visits, although the larger institutions with many inmates preferred to be notified of the visit in advance in order to minimize disruption to the daily routine. The Training Institute for Correctional Personnel was in charge of implementing training in the Istanbul Protocol.
Japan had set the goal to provide a decision on asylum within six months from the moment of introducing the demand and in 2012 had been able to fulfil it in most quarters. Decisions related to objections to decisions concerning recognition of refugee status were provided in accordance to the law. The number of entertainer visas issued in 2012 was 30,911. Concerning the principle of non-refoulement and repatriation of asylum seekers, Japan had undertaken a partial revision of the Immigration Act in 2009 which had seen an inclusion of the factor of risk of torture in countries of origin as grounds to stop deportation. If a causal relationship between acts of torture and public officials was proven, victims of this crime could demand redress and compensation from the State. If claims of violence against women were not investigated by a public official, the victim of the violence could be covered by compensation under the State Redress Law.
The regulations to establish the supervision of investigations of suspects were established in the police stations and a person supervising the process was obliged to file a report in case of evidence of inappropriateness or a complaint to that effect being filed by the accused. Conducting audio-visual recording of investigations had started on an experimental basis since 2009 and had been extended to cases involving those accused with mental disability or when the accused denied the crime he or she was charged with. Institutionalization of audio-visual recording of investigations was currently under discussion. There were three types of arrests prescribed in Japanese legislation: arrest based on an arrest warrant issued by a judge, arrest in the act of committing a crime, and an emergency arrest in which the police still had the obligation to obtain an arrest warrant by a judge.
The police gave utmost priority to the safety of victims of domestic violence; the police expanded prevention of the crime, and was in charge of arresting and investigating perpetrators. The police had an obligation to take appropriate action on all domestic violence cases as prescribed in the Act on Domestic Violence. The police were creating an environment in which victims of crime were more readily available to file charges in cases of sexual violence and rape.
The question of “comfort women” went back to World War II; Japan had settled the issue in the 1990s and was of the opinion that this was not something to be dealt with under the Convention. In 2005 Japan had accepted the responsibility for the situation of comfort women, and the Prime Minister had issued a heartfelt apology and individual letters of apology had been sent to the women. Japan was of the opinion that the issue had been legally settled with the countries parties to the San Francisco Treaty. The Asian Women Fund had been set up in 1995 which was providing atonement money and various kinds of services including medical to the comfort women; the Fund enjoyed the support of the State of Japan, its private companies and individual citizens. The number of 200,000 comfort women quoted by the Committee was groundless.
The individual complaint system of the Committee against Torture was a noteworthy mechanism and Japan needed to consider its domestic legislation and to study whether to accept the system or not. Parliament had approved that Japan ratify the Palermo Protocol, but in order for that to happen, it first needed to become a party to the United Nations Convention against Transnational Organized Crime.
Follow up Questions and Comments by the Committee Experts
FERNANDO MARIÑO MENENDEZ, Committee Expert and Rapporteur for the Report of Japan, noted that detention could last for 72 hours and that interrogation could stretch over 20 days; access to a lawyer was not consistent during this period of 23 days and the delegation was asked to explain the system and to inform the Committee why audio-visual recordings of interrogations were implemented on a case-by-case basis. Once the person was in prison, either in pre-trial detention or serving a sentence, could they submit claims of ill-treatment? The appeals against decisions by the Ministry of Justice denying asylum were virtually never successful, while the extension of detention of migrants due to be expelled could be deemed cruel treatment; could the delegation comment on the situation of refugees and asylum seekers? The situation of people on death row was an issue of concern to the Committee and Japan needed to address the stay of executions and the notification of executions.
GEORGE TUGUSHI, Committee Expert and Rapporteur for the Report of Japan, took up the issue of the use of restraints and asked for the clarification of the system in place and how the state of insanity of a death row inmate was determined, given that their execution was prohibited by law. What measures were in place to ensure the oversight of mental health institutions and to ensure that people were not confined without their will? Were any steps being taken to address the issue of extended detention for persons scheduled for deportation? There was no particular legislation to prohibit discrimination on the basis of sexual orientation and gender identity; what was being done to prevent violence and discrimination against lesbian, gay, bisexual and transgender persons?
Other Experts noted that from the psychological point of view, it was important to be prepared and notified about an impending execution and in that sense not notifying families about pending executions caused additional stress. Were there plans to introduce a total prohibition of corporal punishment of children as a first step to curbing domestic violence? In 2008, three persons had been executed, including a person suffering from schizophrenia; was there a possibility in the regulations to stop the execution of mentally ill individuals or even pardon them? Access to legal representation was not given during investigations in Japan as it was thought it would interfere with the investigative process of arriving to the truth; this was not a persuasive argument especially as all offences such as torture and ill-treatment were usually done during this period.
Responses by the Delegation
Deportation needed to take place immediately upon the issuing of a deportation order; if deportation was not possible, the person was kept in detention and provisional release was applied for on humanitarian grounds. The matters to be considered for provisional release were published on the website of the migration agency.
The hours necessary for interrogation depended on a case-by-case basis and if it went on for a long period of time, there were breaks; the internal rules strictly prohibited coercion and intimidation during interrogations. The authority to prosecute or not was up to the prosecutor and judges could not refuse the case; any wrongdoings during the investigations could be used as a ground for appeal. If the presence of a defense counsel was allowed during an interrogation, all the materials and evidence would be seen by the defense and the counsel could ask questions that could interrupt the interrogation; there was one point in the process where the counsel could interfere and review the material.
Establishment of a national human rights institution was currently under discussion.
HIDEAKI UEDA, Ambassador in charge of Human Rights and Humanitarian Affairs, Ministry of Foreign Affairs of Japan, expressed his thanks to the Committee and said that Japan was not in the Middle Ages but one of the most advanced countries in this field. There were shortcomings which Japan was trying to sincerely address. The promotion and protection of human rights was a long process for each country and the discussion with the Committee today, in which Japan tried to answer questions in good faith, would enhance Japan’s cooperation with the international community.
FELICE GAER, Committee Vice-Chairperson, thanked the delegation for providing so much information and invited Japan to contribute additional information in writing.
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