List of Issues:

1. Deletion of the Death Penalty from Certain Crimes
   
   

   In Japan, a death penalty sentence has not been handed down from 1991 to 1995 for crimes other than murder and murder during the course of a robbery. Are there any plans to delete the death penalty from these crimes against which the death penalty sentence has not been handed down during the said period? If not, what are the difficulties to delete them?
   
   

2. Court-Appointed Defense Counsel for the Death Penalty Related Suspects
   
   

   Are there any plans to revise the law to make it mandatory to arrange court-appointed defense counsel for unconvicted suspects before indictment who are arrested and detained on a charge of a crime whose statutory penalty includes the death penalty, when they do not have one of their choice?
   
   

3. Qualification of Court-Appointed Defense Counsel
   
   

   Is any specific consideration given to the experience and other background when the court appoints defense counsel for a trial whose statutory penalty includes the death sentence?
   
   

4. Introduction of Automatic Appeal
   
   

   Does a death sentence become final when it is not appealed? Are there any plans to introduce a system for automatic appeal?
   
   

5. Prohibition of Appeal Seeking the Death Penalty
   
   

   Are there any plans to correct the current legal practice which allows the prosecutors to appeal seeking the death penalty when a lower court did not sentence the death penalty?
   
   

6. Counsel for a Request for Pardon or Commutation of Sentence
   
   

   Are prisoners serving the death sentence guaranteed the right to choose a counsel (or representative) in bringing a request for pardon, commutation of sentence, or re-trial? Do they have a right to request counsel at the cost of the state, when they do not have a counsel of their choice?
   
   Is there machinery to handle complaints against the decision not to grant a pardon, commutation of sentence, etc.? Can the death sentence be carried out while the request for pardon, commutation, and retrial is pending?
   
   

7. Changes after the Committee's Last Recommendation
   
   

   Please elaborate on any changes or improvements that have been made since the Committee's last review of the Japanese Government's Report in 1993 concerning the treatment of prisoners serving the death sentence. What are the reasons for the failure in implementing the reforms as suggested and recommended by the Committee?

Background:

1. In the last Comments on Japanese Government's Report in 1993, the Committee expressed concern over the death penalty in Japan (Paragraph 12), while members addressed the fact that the Japanese Penal Code stipulates as many as 17 crimes punishable by the death penalty. They include even damage to inhabited structure, etc., or offense aggravated to homicide by results of a crime. However, the Japanese government has not revised the laws concerning the number and nature of punishable crimes by the time of the submission of the present 4th Periodic Report. The Government Report states that from 1991 to 1995 the death sentence has been handed down only to those who committed either murder or murder during the course of a robbery. Pursuant to this statement, we would like to confirm whether or not the Japanese government has an intention to delete death penalty punishment from other crimes for which the death sentence has not been handed down, as a first step in abolishing the death penalty.
   
   
2. Those who face the death penalty should be supported by lawyers at every stage of the judicial proceedings. It is a right guaranteed under Paragraph 5 of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (ECOSOC Resolution 1984/50). However in Japan, those who are arrested and detained on account of a crime punishable by the death penalty are hardly guaranteed this right, and they do not have lawyers at the stage of detention immediately following arrest. Furthermore, a written statement of confession that is produced under these circumstances become important evidence in trial.
   
   
3. There is no specific experience required for court-appointed defense counsel even for cases in which death sentence may be imposed (if any, only years of experience as a lawyer).
   
   
4. Paragraph 6 of the aforementioned ECOSOC resolution provides that "anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction, and steps should be taken to ensure that such appeal shall become mandatory." However, Japan has not established such measures.
   
   
5. The prosecutors can appeal merely on the ground of inappropriateness of sentencing. This practice contravenes the objective of Article 9 of the Covenant to place maximum limitations on the death sentence, as the General Comments 6/16 of the Committee states that "the death penalty should be a quite exceptional measure."
   
   
6. As stated in Background 2, those who serve the death sentence should be entitled to be supported by lawyers in requesting pardon, commutation of sentence, and retrial, and if necessary by court-appointed defense counsel at the cost of the state. However, measures to guarantee such rights are entirely nonexistent in Japan. There is no recourse to complain or procedural safeguards to file other requests for examination. It is theoretically possible under the current system to execute the death penalty while a request for pardon, commutation of sentence, or retrial is still pending.
   
   
7. There have been no improvements on the treatment of those who awaiting execution as recommended by the Committee in 1993. Furthermore, no explanation has been provided domestically on difficulties to make such changes.