Towards a more effective approach to human rights and democracy: a tailored human rights strategy for Japan Dr. Paul Bacon Deputy Director, EUIJ Waseda The Asia-Pacific Roundtable on EU Studies January 2013, Hualien, Taiwan

4 recent EU documents on human rights and democracy December 2011: High Representative of the EU, Human Rights and Democracy at the Heart of EU External Action - Towards a More Effective Approach. June 2012: Council of the European Union, EU Strategic Framework on Human Rights and Democracy. June 2012: Council of the European Union, EU Action Plan on Human Rights and Democracy. October 2012: European Parliament, Enhancing EU Action on the Death Penalty in Asia, Briefing Paper.

Core elements of the 4 EU documents Renewal - policy needs to be ‘more active, more coherent, more effective’. Tailoring – need to create tailored, bottom-up, country- specific human rights strategies. Priorities - administration of justice, and the right to a fair trial (due process) recognized as human rights priorities. Universal - commits the EU to universal human rights norms. Local – commits the EU to working in partnership with local civil society organizations. Campaigns - need for cross- cutting themes such as judicial reform, right to a fair trial (HR). HR – in some countries, abolition of the death penalty is unlikely. In such cases it would be more practical to shift attention to other issues. Parliament – countries are at different stages on journey to abolition, and therefore require different strategies. All states to ratify and implement universal human rights treaties. Four documents all explicitly recommend that EU should draw on standards in reports produced by the UN human rights bodies.

Developments on Human Rights in Asia Of 24 Asian countries discussed in the Parliament report: – Five have abolished the DP: Bhutan, Cambodia, Mongolia, Nepal, Philippines. – Six are abolitionist in practice: Brunei, Burma, Laos, Maldives, South Korea, Sri Lanka. – Four have a significant downward trend in executions: China, Malaysia, Pakistan and Singapore. – Nine have experienced little or no progress: Afghanistan, Bangladesh, India, Indonesia, Japan, North Korea, Taiwan, Thailand, Vietnam.

Figure 1: Number of executions in Japan between 1998 and 2013

Developments on Human Rights in Japan 1 The Parliament report identifies Japan’s situation as having fluctuated markedly in recent years. It implies that there is little chance of an official moratorium or abolition of the DP. I agree. The Democratic Party of Japan was in power for three years, between 2009 and 2012, and was generally less supportive of the DP. (Only 2 executions in 2.5 years, until March this year) There were two periods of de facto moratorium when the DPJ was in power, the second of which lasted 20 months. This year, however, there have been 7 executions. There was a general election on December 16 th, which was won emphatically by the Liberal Democratic Party, which is generally highly supportive of the DP. Roughly 85% of the Japanese public supports the DP.

Developments on Human Rights in Japan 2 This makes it politically costly to consider abolition, and offers an easy excuse to continue with executions. The DPJ was prepared to uphold a de facto moratorium during the middle of its term. But the de facto moratorium was the high-water mark of what is currently achievable in Japan on the DP, especially as the LDP won on the 16th. So, a more differentiated human rights strategy is necessary for Japan. This approach should still include the DP, but should not focus exclusively or excessively on the DP. There are other human rights issues in Japan which are arguably more important than the DP, on which there is greater possibility of movement by the Japanese government. Broadly, I am referring to due process and criminal justice issues, which I have separated out horizontally from death penalty issues in slides I have also categorized death penalty and due process issues vertically, listing them provisionally in descending order of priority (starting with the most important). Issues in red and marked with an * are most important/most achievable.

Death penalty-related recommendations 1 Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008) Abolition of the death penalty Official moratorium on death penalty. Unofficial moratorium on death penalty. Significant reduction in number of executions Reduction in the number of executions Persons at an advanced age or with mental disabilities not to be executed. Minors not to be executed. Death penalty strictly limited to the most serious crimes. Powers of pardon, commutation and reprieve to be genuinely available to those sentenced to death. Mandatory system of review in capital cases*. Suspensive effect of requests for retrial or pardon in such cases*.

Death penalty-related recommendations 2 Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008) Strict confidentiality for all meetings between death row inmates and their lawyers concerning retrial*. Inmates on death row and their families to be given reasonable advance notice of the scheduled date and time of the execution, to prepare themselves for this event*. Ensure that solitary confinement remains an exceptional measure of limited duration*. Introduce a maximum time limit for solitary confinement. Require prior physical and mental examination for inmates to be confined in protection cells. Discontinue practice of segregating certain inmates in “accommodating blocks” without clearly defined criteria or possibilities of appeal. Inform public about the desirability of abolition.

Due process-related recommendations 1 Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008) Abolish substitute detention system (23 days, 72 hours). Right of confidential access to legal aid from the moment of arrest and irrespective of the nature of their alleged crime, for all suspects*. Right of confidential access to a lawyer during the interrogation process for all suspects*. Right of all suspects to have counsel present during interrogations, to prevent false confessions and ensure the rights of suspects*. Strict time limits for interrogation of suspects, and sanctions for non- compliance*. Systematic use of video recording devices for entire duration of interrogations*. Role of police during criminal investigations is to collect evidence for the trial rather than establishing the truth. Silence of suspects not considered inculpatory.

Due process-related recommendations 2 Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008) Courts to rely on modern scientific evidence rather than confessions made during police interrogations. Right of confidential access to all police records related to their case for all suspects. Right of confidential access to medical treatment for all suspects. Pre-indictment bail system to be introduced. The Penal Institution and Detention Facilities Visiting Committees are adequately equipped and have full access to all relevant information. Members of above committees not appointed by management of penal institutions and police detention facilities. The Review and Investigation Panel for Complaints from Inmates of Penal Institutions adequately staffed and its opinions binding on the Ministry of Justice. Competence for reviewing complaints by detainees to be transferred from the Prefectural Public Safety Commissions to an independent body comprised of external experts.

General Recommendations Country-specific specialist advisory committees composed of 8-10 members (civil society) to identify 5 issues from each list to focus on, using the criteria of importance and likelihood of reform. Public opinion polling on DP in Japan. Possibility of deliberative polling exercises based on the death penalty/criminal justice. Region-wide expert committee of 8-10 members, to co-ordinate and review country strategies. Re-booting of the Tokyo Human Rights Task Force (diplomatic grouping of some 10 EU member-states). Publication of annual page EU-sponsored country report (possibly confidential) Continued support for death penalty lobby groups such as the Federation of Bar Associations, the Diet Members League, and for relevant NGOs such as the Center for Prisoners’ Rights.