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Inmates' suit over 11th-hour execution notices a chance for Japan judicial system debate

The Supreme Court is seen in Tokyo's Chiyoda Ward in this Feb. 10, 2019 file photo. (Mainichi/Kazuo Motohashi)

In Japan, those on death row learn when they are going to be executed shortly before the hanging takes place. And in November 2021, two death row inmates filed a lawsuit against the Japanese government arguing that this system of carrying out the death penalty is in violation of human rights and the Constitution.

    As the world trends toward the abolition of the death penalty, Japan maintains it, a rarity among democracies worldwide. The way in which Japan has adamantly refused to abolish the death penalty, and the way it continues to inform death row inmates of when they will be executed, has been met with strong criticism from the global community. Hopefully this lawsuit will spur debate among the public about the death penalty.

    The first hearing of the lawsuit was held Jan. 13 at the Osaka District Court. Soon after the hearing began, the lights were dimmed and an attorney for the plaintiffs, Yutaka Ueda, began a PowerPoint presentation. "The human rights of confirmed death row inmates are being violated by the state," he said. "It is the job of the court to correct that."

    The plaintiffs, whose names have not been made public, are seeking confirmation that they have no obligation to accept the carrying out of a punishment that they have only been told about on the day of, and are demanding 11 million yen ($95,900) each in damages for the psychological pain they have suffered for not having those conditions guaranteed.

    In Japan, executions are carried out within five days of a justice minister's decision to conduct them. But there are no legal stipulations on when death row inmates must be informed, and according to the Justice Ministry's practice, the head of the detention center where the inmate is held tells the inmate one to two hours before the execution.

    The plaintiffs argue that this violates not only Article 31 of the Japanese Constitution, which states that criminal penalty shall not be imposed, "except according to procedure established by law," and the International Covenants on Human Rights, but also the United Nations Charter, which reaffirms faith in "the dignity and worth of the human person." This is because not only is the last-minute notification of an execution not a "procedure established by law," it effectively makes lodging objections impossible, and amounts to "cruel, inhuman or degrading treatment or punishment."

    The Justice Ministry -- the defendant -- is seeking that the court dismiss the case, saying, "The rights claimed by the death row inmates and the benefits guaranteed by law are uncertain." In the case that the lawsuit does continue to proceed, the ministry says that it will respond appropriately.

    Until the mid-1970s, death row inmates and their families were notified of executions the day before they were carried out. Subsequently, notifications came to be given to the inmate at the last minute on the day of execution; families and attorneys only find out about the execution after it has taken place. The government has explained the reason for the last-minute notification in the Diet and elsewhere that notifying inmates any earlier "would impair the emotional stability of the inmate who will be executed."

    Many question such reasoning. Attorney Yoshikuni Noguchi was present at an execution at Tokyo Detention House in 1971 as a correctional officer. The inmate learned of his execution the day prior, met with his family that day, and wrote letters. Noguchi recalled that the inmate seemed calm when he told his family, "I'm aware of my crime. It is only natural for me to take responsibility for it. Please don't be sad." Noguchi added, "At the very end, death row inmates must want to see their families and communicate their feelings, and to write letters to people who have been good to them. Last-minute executions don't even allow that, and cause death row inmates more pain than just the loss of life."

    Be that as it may, many victims of crimes are often suddenly robbed of their lives. Some believe that considering the gravity of the crimes committed by death row inmates and the feelings of the bereaved families, those on death row should accept the current way in which they are informed when they will be executed.

    In response to such sentiment, a representative for the plaintiffs said, "Just because they are death row inmates does not mean their human rights should be disvalued. If we allow that to occur, human rights violations may spread to the general population."

    At the very end of the hearing on Jan. 13, the plaintiffs' lawyer Takeshi Kaneko read out a written statement. In it, Kaneko mentioned three death row inmates who had been executed on Dec. 21, 2021, after the two plaintiffs filed their lawsuit.

    "I cannot help but imagine the men who, as if they were cows or pigs being taken to a slaughterhouse, were told that they would be executed that morning, led to the execution chamber, and had ropes placed around their necks," he read.

    The lawsuit is unique in that it is very aware of the global tide toward abolition of the death penalty. Among the lawyers representing the plaintiff is an attorney who specializes in international human rights.

    Based on the experience of not having been able to prevent the Holocaust, human rights awareness rose in Europe after World War II, and the idea that "the death penalty is a human rights violation" took root. The U.N. General Assembly in 2007 expressed serious concern over the continued existence of the death penalty, and demanded that member states make efforts with an eye toward abolishing it.

    According to the human rights organization Amnesty International, 108 countries had abolished the death penalty as of 2020, an almost fivefold rise in the last 40 years. The figure rises to 144 when including countries that have suspended executions or otherwise effectively abolished them. This means that 75% of U.N. member states do not carry out executions.

    Among the 38 countries that are a part of the Organization for Economic Cooperation and Development (OECD), Japan, the U.S. and South Korea are the only countries that still have the death penalty. South Korea, however, has suspended executions.

    In the U.S., 23 of the 50 states have abolished the death penalty, and President Joe Biden also opposes it. The 27 states that still have the death penalty (of which three have suspended executions) and the federal government decide on an execution date between 30 days -- at the latest -- and 90 days before it, and promptly inform the death row inmate. In some cases, an execution date is decided as much as three years or more in advance. This allows death row inmates to prepare for their deaths, deal with their assets, consider organ donations, and sufficiently think about who to have their ashes given to.

    Some have pointed out that the reason the Japanese Justice Ministry does not give prior notification of executions to death row inmates is because it is worried that if word gets out to the outside world, there will be anti-execution protests that prevent executions from being conducted quietly and smoothly.

    David Johnson, a professor at the University of Hawaii at Manoa who is well versed in the Japanese death penalty system, called Japan's execution method a "surprise attack (damashi-uchi) execution policy," and said that the purpose of secrecy is to protect "the Ministry of Justice's power to decide who will die, and when -- and with little public discussion. In other words, this practice is about preserving the prerogatives of power. There is no principled justification for it."

    Meanwhile, Seiken Sugiura, a lawyer who did not order any executions when he was justice minister said, "Looking through the lens of international standards, the circumstances surrounding Japan's death penalty, including the last-minute notifications, are a sorry sight."

    In 2016, the Japan Federation of Bar Associations adopted a declaration demanding the abolition of the death penalty, and the following year, set up a headquarters for scrapping the death penalty and related penal system reform.

    "Whether to keep or get rid of the death penalty is tied to the foundations of democracy, and it is important that the public first understand what the current situation is," said Osamu Kamo, deputy chief of the headquarters.

    In the international community, the idea that respect for human rights should be valued over national sovereignty has become well established. If the Justice Ministry still wants to continue informing death row inmates of their execution on the day they take place, they must confront and explain the reason for it head-on in court.

    (Japanese original by Takayasu Ogura, Editorial Writer)

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