HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF JAPAN

The Human Rights Committee today concluded its consideration of the fifth periodic report of Japan on the measures undertaken by that country to implement the provisions of the International Covenant on Civil and Political Rights.

Presenting the report, Hideaki Ueda, Ambassador in Charge of Human Rights and Humanitarian Affairs at the Ministry of Foreign Affairs of Japan, said that it was an honour to receive an evaluation by the Human Rights Committee in this year which commemorated the sixtieth anniversary of the Universal Declaration of Human Rights. Japan had ratified most major human rights treaties, and had signed the Convention on the Rights of Persons with Disabilities and the International Convention for the Protection of All Persons from Enforced Disappearance in 2007. Japan had also acceded to the Rome Statute of the International Criminal Court. Japan was actively revising laws and enhancing various systems in order to keep up with the times and change of environment. It placed particular focus on protecting the rights of vulnerable members of society including women, children, people with disabilities, ethnic minorities and foreigners.

In preliminary remarks, the Chairman of the Committee, Rafael Rivas Posada, explained what the Committee’s mandate was. He stressed that the Committee was not in charge of analyzing domestic legislation. It rather made observations as to what extent the behaviour of a State Party reflected upon the commitment to adhere to the provisions of the Covenant. Mr. Rivas Posada highlighted some issues that had been discussed. Concerning the trial guarantees, he said that they caused concern for the Committee. Special attention had to be paid to the penitentiary system. He also referred to discriminatory legislation, which was in some cases discriminatory against women, for example regarding children born out of wedlock, heritage rights, or women that wanted to re-marry. Finally, Mr. Rivas Posada called on Japan to reduce the crimes for which the death penalty could be applied.

Over the course of three meetings, the Japanese delegation answered questions by the Committee relating to a number of issues, including the death penalty; refugee status determination; refugee acceptance rates; gender equality; presence of lawyers in prisons; solitary confinement; children born out of wedlock; the Covenant before the Japanese courts; duration of interrogations; victims of domestic violence; comfort women; trafficking in persons; and the age of sexual consent.

The Japanese delegation was made up of members of the Ministry of Foreign Affairs; Permanent Mission of Japan to the United Nations Office at Geneva; Cabinet Office; National Police Agency; Ministry of Justice; Ministry of Education, Culture, Sports, Science and Technology; Ministry of Health, Labour and Welfare; and the Ministry of Land, Infrastructure, Transport and Tourism.

When the Committee resumes its work at 10 a.m. on Friday, 17 October, it will start its review of the fifth periodic report of Nicaragua (CCPR/C/NIC/3).

Report of Japan

The fifth periodic report of Japan (CCPR/C/JPN/5) notes that in Japan, the application of the death penalty is limited to 18 crimes. For all of these crimes, except for incitement of foreign aggression, life imprisonment or imprisonment for a limited period with or without work is provided as an optional punishment. Hence, in the Japanese legal system, the death penalty is applied only to particularly serious crimes such as murder or intentional acts involving serious risk of injury to human life. A total of 20 persons were sentenced to death in the five-year period between 1999 and 2003. All of them committed brutal murder or murder on the occasion of robbery. The Government’s view is that imposing the death penalty on those who have committed extremely heinous crimes and whose criminal responsibility is extremely grave cannot be avoided, and that abolishing the death penalty is not appropriate.

Concerning children born out of wedlock, the report refers to a provision of Japan’s Civil Code which stipulates that the statutory share in succession of a child born out of wedlock shall be one half of that of a child born in wedlock. This is a reasonable provision established with the objective of protecting families comprised of a married husband and wife and their children. However, as was already stated in the fourth periodic report, it is necessary to undertake a review of the system in accordance with changing social circumstances affecting inheritance.

According to the report, Japan does not see human rights as absolute. They may be subject to restriction so that conflicting fundamental rights can be balanced and each individual’s rights can be respected on an equal level. This idea is reflected in the concept of “public welfare” in the Constitution. The concept of “public welfare” cannot be used to restrict an individual’s rights where there is no possibility of those rights interfering with the rights of other people. But for example, in a case where speech or publication leads to damaging a person’s reputation, there is a conflict between the protection of the reputation of the individual as a personal right and the guarantee of freedom of expression which requires balancing.

Presentation of Report

HIDEAKI UEDA, Ambassador in Charge of Human Rights and Humanitarian Affairs Ministry of Foreign Affairs, introducing the report of Japan, said that under the belief that human rights had universal values and were a legitimate concern for the international community, Japan was actively involved in protecting and promoting human rights. The report provided information on measures taken by Japan under consideration of the concluding observations made by the Human Rights Committee at the last review. It was an honour to receive an evaluation by the Human Rights Committee in this year which commemorated the sixtieth anniversary of the Universal Declaration of Human Rights.

Mr. Ueda said the Japanese Constitution stipulated that people should not be prevented from enjoying human rights. Japan had ratified most human rights treaties, and had signed the Convention on the Rights of Persons with Disabilities and the International Convention for the Protection of All Persons from Enforced Disappearance in 2007. Japan had also acceded to the Rome Statute of the International Criminal Court. Louise Arbour, former High Commissioner for Human Rights, had been formally invited to Japan in 2007 and met with several ministers to discuss human rights. Japan was actively revising laws and enhancing various systems in order to keep up with the times and change of environment. It placed particular focus on protecting the rights of vulnerable members of society including women, children, people with disabilities, ethnic minorities and foreigners. Japan was also carrying out its utmost efforts to improve the treatment of inmates at penal detention facilities, to eradicate human trafficking and to promote human rights education.

Response to Questions Sent to Japan in Advance

Regarding the outcome of cases where provisions of the International Covenant on Civil and Political Rights had been invoked, the delegation mentioned seven cases in which the Covenant had been invoked before the courts. No violations of the Covenant by the laws and regulations of Japan were recognized by the Supreme Court.
Concerning the progress made in establishing an independent national human rights body, the delegation explained that in March 2002, the Japanese Government submitted to the Diet a human rights protection bill to establish a new, independent administrative commission on human rights and a human rights remedy system supported by the commission. However, the bill was not passed because of the dissolution of the House of Representatives in October 2003. While the Japanese Government aimed to submit to the Diet a bill for the establishment of an independent national human rights institution based on the above reports, a draft law was under review by the Ministry of Justice at present.

As to the possible accession of Japan to the Covenant’s Optional Protocol, the delegation said that the individual communication procedure prescribed in the first Optional Protocol might raise some problems in regard to Japan’s judicial system, including the independence of the judiciary. However, the conclusion of the Covenant’s Optional Protocol was under serious and careful consideration, while paying attention to the actual practice of the system.
Regarding the restrictions which could be placed on rights granted by the Covenant on the grounds of pubic welfare, the delegation said that “public welfare” was mainly a concept which, under the idea of achieving a balance between different human rights, allowed for certain restrictions upon human rights, denoting that the protection of human rights was not absolute or without limits. In Japan, “public welfare” could not be relied on as a ground for allowing the State to place arbitrary restrictions on human rights, and the Government of Japan would never place arbitrary restrictions on human rights, relying on the concept of the “public welfare”.

Concerning discriminatory provisions in the Civil Code, namely the prohibition for women to remarry during six months following divorce in the event that it was necessary to determine the paternity of a child or the difference in the minimum age of marriage for women (16) and men (18), the delegation explained that there had been a report by an advisory committee to the Minister of Justice that proposed the marriageable age to be 18 years of age for both men and women. Also, the period of prohibition of remarriage post divorce should be shortened to 100 days. However, there were physical and mental differences in the age at which men and women reached the maturity necessary for marriage. The delegation stressed that there was a rationale behind the provisions giving different marriageable age for men and women that reflected these physical and mental differences between men and women.

Regarding measures taken to reach equal representation, beyond the current goal of 30 per cent of women in the National Diet, the cabinet, local assemblies, the judiciary, and leading positions in the public service at national and regional levels, the delegation said that the Headquarters for the Promotion of Gender Equality had formulated a Programme for Accelerating Women’s Social Participation in April 2008. The Programme set out three measures as its basic directions achieving a work-life balance, giving full support for developing women’s capacity building and its utilization, and changing awareness. In the said Programme, women’s participation in the public service in particular was considered as one of three priority fields where greater activity by women was hoped for but currently the participation was not sufficient. In the private sector, the ratio of women in management positions in Japan showed an increasing trend over the long term, but remained at a low level overall.

Concerning the definition of rape in the Penal Code, with a view to including spousal rape, the delegation stated that spousal rape was punishable under the Penal Code of Japan. Turning to measures that had been taken to protect and assist victims of gender-based violence, the delegation said that regarding women suspects or detainees, the treatment of female detainees in detention facilities was carried out as much as possible by female police officers. In particular, physical examinations and the bathing of female detainees were to be conducted without fail by female police officers or staff. Setting up female-only detention facilities staffed by female police officers was also being promoted. In general, there were special investigators with appropriate training directing investigations of sexual crimes. Female police officers were in charge of the duties involving the victims of sexual crimes, including questioning of the victims. Also, counselling rooms and hotline network for counselling on sexual crime incidents and investigations of such crimes had been set up and staffed by female police officers.

Turning to domestic violence, the delegation explained that it was dealt with under the articles for the crimes of assault and bodily injury of the Penal Code. Among these violent crimes, it would not be appropriate to deal with domestic violence more severely than with non-domestic violent crimes. This was because assaults or bodily injuries committed domestically varied with motives, means and degrees of impact on those involved, and did not necessary constitute a category which was worse than other violent crimes. In addition, the punishment of serious domestic violence could be dealt with appropriately within the range of existing statutory penalties for crimes of assault and bodily injuries, among others.

Temporary protection for victims of spousal violence and their families was given by the Women’s Consulting Offices, one of which had been established in each of the 47 prefectures. Temporary protection could also be entrusted to those who met certain criteria. The number of facilities had increased year by year, reaching 256 in 2007. There was also support for single mothers, including mothers escaping from their spouses because of domestic violence, to find employment through the Work/Self Reliance Assistance Centers for Solo Parents project, which had a comprehensive programme offering job hunting information, courses on finding work and career counselling for single mothers.

Regarding amendment of the Prison Law in order to limit the systematic use of the Daiyo Kangoku substitute prison system for the prolonged detention of arrested persons in police stations for 23 days without the possibility of bail, the delegation noted that prison law had been changed substantively in 2005 and 2006. Under the new Act, the previous substitute prison system had been replaced by a new substitute detention system in which unsentenced inmates, including pre-indictment detainees or suspects, could be placed in police detention facilities instead of penal institutions. Abolishing the substitute detention system had the danger of destroying the foundation of the merits of the Japanese criminal justice system mentioned above, namely precise investigations and accurate indictments supported by these investigations, which were conducted within the limited detention period. Currently, there were no strong demands from the citizens to change the criminal justice system to brief investigations and lower standards for indictment, hence Japan did consider it not appropriate to immediately revise the Act on Penal Detention Facilities to abolish the substitute detention system.

With respect to the alternative measures at the pre-trial stage, Japan said that it did not permit to release the pre-indictment detainee on bail but permitted it after the indictment, even before the first trial date.

As to giving the suspect access to a court-appointed lawyer, Japan explained that at present, the judge appointed a counsel to detained suspects in cases punishable with the death penalty or imprisonment for life if the suspect was unable to appoint a defense counsel. From May 2009 onwards, the applicable cases would be expanded to those punishable with the death penalty, imprisonment for life, or imprisonment of more than three years.

Regarding the death penalty, Japan explained that crimes that enlisted the death penalty as an option among the statutory penalties were limited to 18 serious crimes, such as homicide and robbery causing death. Even for these crimes, except for the instigation of foreign aggression, there were possibilities to be sentenced to imprisonment with work or without work. In addition, the decisions to choose the death penalty among statutory punishments went through extremely strict and careful examination of the circumstances in consideration of the criteria shown in the precedents of the Supreme Court. Accordingly, use of the death penalty was limited only to those who had committed a brutal crime that involved intentional killing with extremely high criminal culpability. Considering the situations where the majority of Japan’s public opinion perceived that using the death penalty sentence was unavoidable for extremely vicious and cruel crimes, including brutal crimes such as killing multiple victims or killing after kidnapping the victim, Japan considered that it was not appropriate to introduce a general moratorium on the execution of death penalty upon all those who are convicted. It was also possible to result in an even more inhumane situation by installing the moratorium once but revoking it later for the moratorium would have raised the expectation of the convict not to be executed. Hence, it was not appropriate to take a general moratorium on the execution of death penalty for all those who received the sentence.

Concerning the reduction of solitary confinement, Japan said that decisions to place sentenced inmates throughout day and night in a single room, or to extend its period, were carefully reviewed by a board of review composed of relevant staff of the penal institution, and when necessary, the opinions of doctors or special staff regarding the inmate’s physical and mental condition were obtained. Measures were taken for those placed in a single room throughout day and night to endeavour to remove the causes of such confinement, including meetings with institution staff to encourage the inmates to return to the group treatment rooms or examinations by psychiatrists.
According to the law in Japan, commutation of the sentence as a pardon could be also applied to those who were sentenced to the death penalty. Under the Act on Penal Detention Facilities and Treatment of Inmates and Detainees, inmates sentenced to death were to be placed in a single room throughout day and night and were not permitted, in principle, to make mutual contacts even in the outside of the inmates’ rooms. However, if it was deemed advantageous to help the inmate maintain peace of mind, they might be permitted to make mutual contacts. In order for the inmates sentenced to death to avoid suffering from loneliness, various measures were taken with ingenuity to help the inmates maintain peace of mind. These included provision of interviews with non governmental volunteers, religious teachings, and interviews with the staff of the penal institution when necessary by virtue of their office.

With regard to the strict time limits for the duration of interrogation of detainees in police custody, the delegation said that the police forces had their own regulations that they should avoid conducting interrogation of a suspect until midnight or for a long period of time, except when there were inevitable reasons.

Regarding deportation, the Immigration Control and Refugee Recognition Act did not stipulate any wording or definition of torture, however, it stipulated that in cases where the person could not be deported to the country of nationality or the country of citizenship, such a person should be deported to the country in which the person had been residing immediately prior to the person’s entry into Japan, or another country in which the person once resided before the person’s entry into Japan pursuant to the person’s wishes. In addition, the principle of non-refoulement was enshrined into the Japanese law, and it clearly stipulated that in principle deportation should not be made to the territories where a deportee’s life or freedom would be threatened.

Questions Raised by Experts

Experts noted the remarkably strong interest by mainly national non governmental organizations. However, it was repeatedly regretted that observations from several earlier country reviews of Japan had not had any effect and that Experts were making the same recommendations again. Sometimes, it seemed to be a dialogue of the deaf. The question was asked what value the delegation itself did see in the exercise that they were engaging in. There was no use in simply telling the Committee in what way they were doing things and then going back to their country and continuing to do things as before instead of discussing the implementation of the provisions of the Covenant.

An Expert inquired on examples where provisions of the Covenant had been invoked before the lower courts, since all examples stated by the delegation came from the Supreme Court. He also noted that in none of the mentioned examples could a violation be found. Were there no examples to be found for the lower courts? Violations of human rights were most likely to arise in practice and be covered by the lower courts. Was the Covenant included in the training of judges at all levels? Were lawyers encouraged to learn about the Covenant? Another Expert drew attention to the fact that the Covenant was invoked in cases before the Supreme Court dealing with door-to-door canvassing. She wanted further information why this was so, since this was such a normal thing to do where she came from.

Regarding Japanese reservations towards the accession to the Optional Protocol, an Expert suggested that Japan reexamined its position since in his view the possible incompatibilities with the Japanese system were not as strong as perceived by Japan.

With respect to the establishment of a national human rights institution, an Expert recalled criteria which the Committee had suggested for the establishment: the institution should be under the Office of the Cabinet rather than under a Ministry, the members should be appointed through a transparent procedure, there should be a guarantee that only people were appointed who had the appropriate knowledge, there should be a presence in each prefecture and the mandate should include all international human rights standards that had been adopted. The Expert asked Japan to answer precisely which of these criteria posed problems for the establishment of a national human rights institution.

Concerning restriction of human rights on the grounds of “public welfare”, an Expert said that this had been criticized widely in Japan and elsewhere. It was welcomed by the Committee that this was not used in an arbitrary manner. However, there continued to be an institutional crack. He underscored that the Covenant was extremely limited in where it allowed for restrictions.

Regarding discrimination, an Expert mentioned disturbing incidences, in which lesbian and gay people were discriminated against in housing rights as they provided only for co-habiting people of the opposite sex. Was sexual orientation covered as a matter in which discrimination could occur? And if not, would Japan consider doing so? Regarding discriminatory laws for women in Japan, such as the prohibition for women to remarry during six months following divorce in the event that it was necessary to determine the paternity of a child and the difference in the minimum age of marriage for women (16) and men (18), the Committee on Elimination of Discrimination Against Women had expressed concern in 2003 as well. What had happened since the Human Rights Committee had expressed its concern in this matter the last time which was ten years ago? What were the concrete actions that had been undertaken? The Expert understood that there was resistance to equality thinking in many countries. Comprehensive action had to be undertaken in various fields to be able to mainstream gender questions. One such action was to install more childcare facilities in order to give women the possibility to remain in the workforce. She noted that there were only 1.7 per cent female ministers in high ranking positions and criticized Japan for setting the target at 5 percent until 2010 which she thought to be too modest. She wanted to know more about concrete measures that had been undertaken, rather than plans and projects to encourage women in the public and private sector. The Expert added that there were reports of police inefficiency when women approached officers. There were no legal provisions as to gender-sensitive training for law enforcement. Therefore, one Expert asked the delegation to provide the numbers.

With respect to domestic violence, the delegation had said that it was not inappropriate to deal more severely with domestic violence than with other violence. She asked if the sentences given out were not too lenient. Also, she asked if the effectiveness of protection measures for women had been measured.

Several Experts turned to the historical issue of “comfort women”, women that were a sort of divertissement for Japanese soldiers in the Second World War. An Expert asked if Japan wanted to educate the general public and provide compensation for victims. Japan had to make a historic gesture and bring justice to the victims. Since they were speaking of a distant time, prior to 1945, action had to be taken soon, with regards to the victims and the perpetrators.

Turning to recognition rates of asylums-seekers, an Expert stated that they were very low. She asked regarding third-country-resettlement how many people benefited from that measure. Furthermore, there were many problems in refugee status determination. A problem might be that the refugee unit and immigration unit were under the same ministry. This way, rightful refugees ran the risk of being deported together with undocumented migrants.

One Expert said that each police station did what it wanted. Police officers tried to extract confessions and lawyers were considered as getting into the way. Another Expert added that it was absurd that a lawyer posed a risk to the investigation. There seemed to be a complete misunderstanding what investigations should do. Also, a very big weight was given to the indicting force. The Expert did not understand how Japan could keep such an archaic system and not use modern technology. Confessions were often disavowed to be lies by scientific means. In the same vein, another Expert asked a series of questions: were there any convictions on spousal rape? Why could there not be more female prison guards? Why could a lawyer not sit in an interrogation? She drew attention to the fact that silence could be interpreted as a sign of guilt. Using technology, Japan could have a much safer prevention against false confessions. She added that there had to be an absolute duty to disclose exculpatory findings to the defense. It had to be obligatory, especially in a country that had the death penalty.

Regarding the death penalty, the position of Japan was known and the Expert did not want to make again a point for abolishment. Japan did not intend to abolish the death penalty. She said that if it was such a deterrent why did they then see an increase in crimes? In the list of crimes that were subject to the death penalty there was the illegal use of explosives. She did not think that this was part of the group of the most serious crimes. Blood crimes were considered the most serious of crimes. The reason that public opinion favoured death penalty was not a good reason, since public opinion always favoured the death penalty even in countries where it had been abolished. Another Expert added that public opinion only supported abolishment 25 years after abolishment and they could not wait for public opinion. Another Expert asked how public opinion was measured. Were there votes or polls? Were they speaking of a small or large majority? Was the Government willing to show the highly problematic side of the death penalty to the public?

Regarding the treatment of detainees, there was probably no country in the world where the population demanded that detainees were treated properly. That was simply not what happened. The Expert said that it was a pity that Japan still thought in these terms, although the issue had already been raised 10 years ago.

Answers by the Japanese Delegation to the Experts’ Questions

Regarding rulings of lower courts in which the International Covenant on Civil and Political Rights was invoked, the delegation said there were currently no examples available. However, there was one example in which a law was being revised in order to comply with the Covenant, namely the nationality law. As for the establishment of a national human rights institution and the accession to the Optional Protocol, discussions and study meetings were still ongoing.

Concerning the different minimum marriageable ages for women and men, the legal council had made a proposal to raise the age of women to the same as men, which was 18 at the moment for men and 16 for women. The Government was still gathering information on the matter. Asked about the measures for gender equality, the delegation explained that there had been symposiums and other awareness-raising campaigns. There were currently 25 per cent of women in national public officers to be recruited and it was an increasing trend. As to measures taken to reach the target of 30 per cent, shorter working hours for child-rearing mothers to support careers of women had been installed.

Regarding the wage disparity between fulltime and part-time workers, the delegation explained that Japan recognized the importance of the issue. A revised law for part-time workers had already taken effect. It stipulated that employers were prohibited from taking discriminatory measures. Also, the total number of children in daycare should be raised to 2.15 million until the end of 2009. To this end, 420 billion yen had been demanded in order to implement measures so that no children should be on a waiting list. Regarding measures in the private sector, the delegation explained that there was a promotion system; training and education for women; awareness-raising for male mid-level managers; and promotion of work-life-balance.

Regarding the police response to sexual crimes, the delegation explained that there were 332 police officers in advisory positions for investigation of these crimes. This was 7 per cent up compared to 10 years ago. To prevent secondary cases of sexual crimes there were now 13,600 female police officers, this number was 1.7 times higher than 10 years ago. Japan would continue its earnest efforts in this matter. Also the number of female prison officers had gone up. As of March 2008, there were 24.7 per cent more than five years ago. The female detainees were 6.7 percent and female prison officers 6.5 per cent. This was equivalent. Japan would continue to hire more female prison officers.

Concerning substitution detention facilities, the delegation recognized that there was criticism of this system. However, the necessity had been explained thoroughly already. The substitution detention facilities were only for suspect detention and were not the location for questioning or interrogation. Detainees had been treated with respect to their human rights. Several improvements had been made following a law stipulating separation of investigation and detention services of detention. Detention facilities visiting committees had been established to monitor the appliance of separation of investigation and detention services. A committee independent from police interviewed 500 detainees regarding the appliance of separation of investigation and detention services. Also, a complaints mechanism had been set in place.

Concerning the death penalty and the assertion of an Expert that family members would only know about the execution through the media, the delegation said that this was not the case. The family members were notified of the fact that the inmate had been executed immediately after the execution by the authorities. There were death row cases in which persons could meet their lawyers with their lawyers alone if their retrial was still pending.

With regards to the concerned intervention in the process of interrogation, the police authorities of Japan understood that illegal interrogations must not take place. Also, as proof for voluntary statements, recordings had been started. Focus on the confession was not a mere confession of “yes, I did it”. The confession had to be detailed. The defendant had to excuse himself or herself for the deeds, the victims or the families of the victims needed to be assured of the remorse of the perpetrator. Also, even if the person was caught at the scene of the crime, they would know that this person was a suspect, but detailed facts still needed to be heard. The delegation added that confession on details played a crucial part in the process, since prosecutors and judiciaries needed details to choose proper procedures and/or sanctions. It would not serve the public’s interest to be lenient. A study was conducted in 2004 in which 3,000 people had been chosen randomly to answer questions regarding keeping the death penalty. A majority had answered in favour.

Regarding refugees, the delegation answered that in 2007, Japan had given permits to stay for refugee and humanitarian reasons for 26.5 per cent of the applicants. Regarding refugee status determination, the Minister of Justice gave a detailed explanation if asylum was not granted. If the applicant was not satisfied with the refusal, the applicant could file an objection. The applicant was informed of this possibility. Deportation was not carried out done if provisional stay was awarded. The applicant was also not deported during the ongoing status determination. Furthermore, a person would not be returned to his country if he would be tortured in this country. Regarding third-country-resettlement, the Government of Japan would study this possibility.

Further Questions by Committee Experts

An Expert commented on the part-time workers law and said that the improvement only concerned 4 or 5 per cent of the over 2 million part-time workers. She welcomed any efforts to include more part-time workers who were mainly women. Regarding children born out of wedlock, they were registered in a special way and there were also discriminatory provisions concerning heritage. Why was it so difficult to change birth registration? Also public opinion was said to be against this change and the Expert wanted to know more about that.

Non governmental organizations had informed the Committee about an increased use of solitary confinement in Japanese prisons. The Expert asked the delegation if that was that correct. Why was this so? Concerning isolation of death row inmates, the Expert said that he was rather confused hearing that it was rather disturbing to people if they were to have ordinary relations with other inmates. And yet various measures were taken in case such inmates were feeling lonely, this was a contradiction. It was not clear why a legal provision was needed for isolation. Also, inmates were executed after long periods of detention when they had already reached old age. This was hard to understand to the Expert, but he also underlined that he understood that these inmates had committed very serious crimes.

An Expert was concerned about a lack of understanding of the Covenant by the Japanese delegation. Not at any moment did the delegation use the word “Covenant” or quote an article. It was all about justifying the national legislation. It had not been answered if judges of lower courts were informed about the Covenant. Another Expert said that a deeper study of the Covenant’s provisions was needed by Japan.

Regarding the substitution detention facilities and police investigation, an Expert was concerned over the statement “of course the police knew who the offender was”. That was not the role of the police. He stressed that an investigatory process could not be used in that way. The Expert did not understand why the investigators did not welcome the presence of counsel so that it could ensure non-forced confessions. Another Expert added that precautions had to be taken to prevent errors in that case. Regarding forced confessions an Expert noted that in practice, people were forced to choose between expressing remorse and risking death penalty if they did not do so. It was also highly disturbing that meetings with lawyers were overheard. Regarding the question if the Government was prepared to show to the Japanese people the highly problematic side of the death penalty, the Expert said he had not received an answer yet.

Responses to the Questions

The delegation regretted that there was no possibility of suspending the death penalty sentence because of the age of an inmate. The delegation was not aware of an increase in the use of solitary confinement. Also, the delegation stressed that there were several complaints mechanisms in place for inmates.

Regarding concrete number of acceptance rates of asylum seekers, the delegation answered that out of 487 applications, 129 were allowed to stay in 2007.

Concerning limits to the duration of interrogation, there were already internal rules in place that interrogations had to end at midnight. Prolonged interrogation had been banned by internal rules. If interrogations had to take place for more than eight hours, the head of the police station had to agree.

Regarding the trafficking in persons, the delegation explained that in April 2004 a task force had been set up that had formulated measures by December 2004, which included the use of women’s consulting offices and private shelters. Those had been established throughout the 47 prefectures and, by the end of March 2008, 222 victims had been given protection in such places. Furthermore, the Penal Code was revised in 2005 to criminalize all forms of trafficking in persons to meet all the criminalization requirements under the Palermo Protocol and subsequently, these trafficking offences are being prosecuted and convicted. Also, in 2005, the Immigration Control Act was amended to exclude the victims of trafficking in persons from being grounds of denial of landing and grounds for deportation, and it was clearly specified to enable those in an illegal stay because of having been trafficked to be granted special permission for landing and special permission for status of residence. Since this amendment at the end of 2007, special permission to stay had been granted to all of them in illegal stay.

Turning to comfort women, the delegation stressed that in the first place, the Covenant did not apply retroactively to issues that arose before 1979, when Japan acceded to the Covenant. It was thus beyond the mandate of the Committee to deal with the issue of “comfort women”. However, Japan devoted its fullest efforts to conducting surveys concerning the issue of “comfort women” from December 1991 to August 1993 and announced the result of the surveys. Upon announcing the result in August 1993, Japan had released a statement by the Chief Cabinet Secretary, which acknowledged the issue of “comfort women” as having severely injured the honour and dignity of many women. In the statement, Japan had extended apologies and remorse. The Government had together with the people of Japan seriously discussed what could be done about this issue and had set up the Asian Women’s Fund in July 1995. The Fund was designed to facilitate feasible remedies for former “comfort women” who had reached advanced ages.

Regarding unfair labour practices in the case of workers wearing armbands indicating their affiliation to a trade union, the delegation said that Japan’s Central Labour Relations Commission was an independent administrative commission. It handled the issue at its sole discretion.
With respect to measures taken to combat child abuse, comprehensive support was given to prevent child abuse and ensured the healthy physical and mental growth of all children, thus encouraging their social independence through an unbroken chain of support structures to prevent such abuse, discover it and act on it as quickly as possible and to give protection to the victims. The Child Abuse Prevention Law became effective in November 2000 and amendments were made to it to further help prevent the abuse of children. Further, the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children were enacted in 1999. The latter was revised in 2004 to increase the statutory penalties for crimes of child prostitution. In recognition of the importance of eliminating the demand for the child pornography in order to eliminate the child pornography itself, a bill was proposed in the Japanese Diet in June 2008 to criminalize the simple possession of child pornography.

Concerning the equality before the law, Japan explained that it considered that non-discrimination stipulated by the Constitution was to prohibit unreasonable discrimination. It did not prohibit differentiation based on reasonable grounds. Japan endeavoured to prohibit discrimination, as stipulated in the Covenant, and would not indulge in arbitrary discrimination on the pretext of what the Human Rights Committee called “reasonable discrimination.”

Regarding the nationality of children born out of wedlock, Japan explained that a child born out of wedlock to a Japanese father and non-Japanese mother and not receiving Japanese nationality at the time of birth may be able to acquire Japanese nationality by application if the said couple married and the child was considered to have gained legitimate status through this marriage. However, in June 2008 the Supreme Court ruled that the provisions the Nationality Law, where a child recognized by its father after birth and acquiring legitimate status through the marriage of the couple involved gained Japanese nationality while a child only recognized by its father but not granted legitimate status might not gain Japanese nationality, was creating discrimination without rational grounds. This was thus in contravention of the Constitution of Japan. Accordingly, the said article of the Nationality Law was now under review and moving towards amendment.

Further Questions by Experts

Regarding “comfort women” an Expert said that this was an issue of great importance. She found the term very disturbing because she could not see someone taking comfort in involuntary sexual relations. There were reports that this issue was wrongly described in some textbooks and removed from others. In addition, some Ministers had been quoted as denying the existence of comfort women. As Japan was a leader in prevention of modern-day trafficking, it was appropriate that it opened its heart to provide some kind of compensation to the victims of this historic trafficking. She added that the issue of rape during wartime was now one of the most interesting topics in teaching human rights law.

An Expert stressed that the age for sexual consent was very low at 13. He further wanted to know if it was the same for boys and girls.

Concerning Koreans who had moved to Japan when Korea was still a colony of Japan, before the 1952 peace treaty with Japan, an Expert said that a non governmental organization had brought to the Committee’s attention the fact that those Koreans were left without pensions. Also, handicapped persons were left out of eligibility for pensions although they would normally get pensions at the age of 20 if they had been handicapped before that age.

At a recent peer-review by the Human Rights Council, the establishment of an independent body for appeal of negative decisions had been recommended. Japan’s answer at the time was that there were refugee examination counselors. But those counselors did not have any decisive power and this was not an independent process. The question remained that there was no independent review system for asylum-seekers. The Expert said that there were reports that deportation had taken place before an asylum-seeker had the possibility to appeal the refusal of asylum. The Expert asked what rights a person enjoyed if he got asylum on humanitarian grounds. What were the criteria for eligibility to stay on humanitarian grounds? She criticized that asylum-seekers did not have access to interpreters and said that there had been reports of deportations due to information given by the asylum-seekers in incomplete and broken Japanese.

An Expert inquired on the term “reasonable discrimination”. He wanted to know about interpretation from the courts to clarify the meaning.

Regarding birth registration, an Expert said that there was a form in which a box had to be checked to determine if the child was legitimate or not. This had led to the consequence that mothers had not registered their children which had later on grave consequences for the child. Could those children not simply be registered in resident registration? Also regarding heritage, illegitimate children got only half of the heritage a legitimate child would get. As public opinion was quoted as a reason for this regulation, was the Government willing to lead the public away from this opinion?

Response by the Delegation

The delegation repeated that it recognized that trafficking was an international crime. A taskforce had been formed in April 2004. There had been 40 cases of trafficking last year and 43 victims had been protected last year. Forty per cent of the victims got psychological care. As explained earlier, in 2005 an action plan had been formulated.

Concerning repatriation, the delegation said that it was relying on the Services of the International Organization of Migration which had a programme for victims of human trafficking and other referral to the country of residence. This programme included escort services for minors at departure and arrival, legal assistance and support in finding an employment in the country of origin.

Regarding the age of sexual consent, the delegation said that provisions regarding child prostitution were not limited to those under 13. Japan was able to protect children from abuse. The delegation added that the age of sexual consent was the same for boys and girls.

Concerning racial discrimination, the delegation said that there was no concept in Japanese law, neither in case law nor in written law. That term must have arisen in the process of translation. She underscored that the Constitution forbade differential treatment.

As to so-called comfort women, the delegation quoted the letter of the Prime Minister that he had sent to those women. He extended his apologies and remorse to these women in this letter. Projects by the Asian Women’s Fund had been set up in various countries, including Korea and the Netherlands, where such comfort women were residing. There were textbooks that included the issue of comfort women.

The appointment process for the refugee counselors had been discussed by many Experts and organizations, including the United Nations High Commission for Refugees. Also, the delegation said that there it was impossible to deport asylum-seekers directly after the refusal since there was a grace period.

Comment by Committee Expert

Regarding comfort women, an Expert said that there were many things an individual could do, also without having a legal basis. She said that the Japanese should not take the topic out of the textbooks and should keep other ministers from making statements denying the issue. Further, she said that getting a letter from the Prime Minister in the mail was different from having a real ceremony.

Preliminary Concluding Remarks

RAFAEL RIVAS POSADA, Chairman of the Committee, in preliminary concluding remarks, explained what the Committee’s mandate was. The Committee based itself on the information provided by the delegation and civil society. It was important to note that this information was not an end in itself. He stressed that the Committee was not in charge of analyzing domestic legislation. It rather made observations as to what extent the behaviour of a State Party reflected upon the commitment to adhere to the provisions of the Covenant. It was not a confrontation, but a dialogue to produce results that in the field would reflect a respect for human rights. In the last days, there was a feeling of frustration among Committee members that earlier comments had not been taken into account by Japan. The Committee understood that there were obstacles but hoped that through an ongoing dialogue progress could be achieved.

Mr. Rivas Posada highlighted some issues that had been discussed. Concerning the trial guarantees, he said that they caused concern for the Committee. Special attention had to be paid to the penitentiary system. Many issues in this regard were not in compliance with the obligations of the State Party, including interrogation practices, the excessive importance attached to confession and the length of detention. Also, a system in which the police had far more powers than they had normally, continued to be a concern. The problem had not been dealt with at the root and it clearly violated the obligations set forth in the Covenant.

Mr. Rivas Posada also referred to discriminatory legislation, which was in some cases discriminatory against women, for example regarding children born out of wedlock, heritage rights, or women that wanted to re-marry. Concerning the Korean and the Ainu, some positive steps had been taken, but there was still cause for concern. Thus, recommendations would remain recommendations, such as the establishment of an independent human rights institution for monitoring and checking for possible abuses in the police force and in the penitentiary system, with regard to the protection of the accused and the detainees.

The Chairman called on Japan to reduce the crimes for which the death penalty could be applied. Although the Covenant did not expressly prohibit it, a State Party should focus on the most serious offences and crimes. Lastly, he underlined the interest of the Committee in seeing the State party give serious consideration to ratifying the Optional Protocol. This was a very important complement in the protection of human rights. This added an extra building stone to the edifice that they had been building over the years. The dialogue had been productive in order to overcome the difficulties and to strengthen the cooperative relations.