II. Information on Individual Articles of The Covenant

Article 7

Strict Treatment of Unlawful Acts of Violence Committed by Law Enforcement Organizations and Measures to Prevent the Recurrence of Such Acts

The legal framework for the prohibition of torture and other cruel treatments is as stated in the Third Periodic Report. To the act of violence, cruelty or the like upon a suspect under criminal investigation or any other person by a law enforcement official involved in a criminal investigation, criminal punishment in accordance with Articles 194 or 195 of the " Penal Code" , and severe disciplinary measure are applied.

Although the occurrence of such cases is extremely infrequent (the numbers of prosecuted persons between 1990 and 1995 were two (2) persons in 1992, eight (8) persons in 1993 and none in 1990, 1991, 1994 and 1995), strict caution is exercised to prevent any recurrences. Law enforcement officials are required to undergo training after the appointment according to their level of experience so that they may acquire the suitable insight and further develop their awareness of human rights issues. Moreover, in process of executing duties superiors, who instruct and oversee junior officials, ensure that junior officials are better educated and the recurrence of such cases would be avoided.

Article 8

The legal framework for the freedom from slavery restriction and involuntary servitude except for a punishment for a crime, and that for the prohibition of the exploitation of children are as stated in the Third Periodic Report. Concerning the actual functioning of prison work, please refer to Article 10 of the Third Periodic Report.

Article 9

Legal View

(a) Changes as compared to the Third Periodic Report

(i) Revision of the Mental Health Law

The " Mental Health Law" was revised in 1987 as is described in the Third Periodic Report. The law provides the following treatments concerning patients in mental hospitals. The superintendent of each mental hospital should periodically report to the Prefectural Governor concerning the condition of each of the inpatients. The Governor should then request the Mental Health Review Board, which is established in each Prefecture, to review whether patients should be kept in the hospital or not. Based on the results of the review, the necessary measures such as to order the patient leave from the hospital should be taken. When inpatients or their guardians request the Prefectural Governor to let them leave from hospital or to improve treatment, the Governor should request the Mental Health Review Board to review the request, and other necessary measures such as letting impatients leave in accordance with the results of the review.
The number of persons who left from hospitals in 1994 under this system is as follows:

Periodic report:

Request for release:

The " Mental Health Law" was revised in 1995 and changed to the " Law Concerning Mental Health and Welfare for the Mentally disabled" . Measures to ensure proper mental care were incorporated in this revised law. They include: measure to improve the health and welfare program for the return to social life of persons with mental disabilities measures to revoke the nomination of Designated Physician for Mental Health of those who have not undergone training every five years (except for the case that the Minister of Health and Welfare recognized that there is an unavoidable reason for his or her not having undergone training); measures to assign full-time Designated Physicians for Mental Health to all those mental hospitals, which either hospitalize persons involuntarily by the Prefectural Governor or for the medical care and protection of the patients who are hospitalized with the consent of their family. As the exceptional regulation, the physician can postpone to inform inpatient of involuntary hospitalization by the Prefectural Governor according to his/her medical condition; otherwise the patient must be notified of his/her hospitalization within four weeks.

(b) Compensation regarding Juvenile Cases

The " Compensation Law regarding Juvenile Case" , which introduced compensation for juvenile detainees, came into force on 1 September 1992 with regard to Article 9, Paragraph 5 of the Covenant. It provides when a juvenile was deprived of his/her physical freedom by being detained in a Juvenile Classification Home, a Juvenile Training School and so on, compensation is to be paid to him/her at a maximum rate of 12,500 yen per day and in proportion to the number of days of his/her detention, in the following case; he/she was discharged, or his/her protective measures were revoked, because there is no reason to subject him/her to such decisions, even when the act of detention is not illegal (Article 4, Paragraph 1 of the " Compensation Law regarding Juvenile Case" , Article 4, Paragraph 1 of the " Criminal Compensation Law" ).

Detention of Suspects

(a) Detention Period

Public prosecution standards are practiced strictly in Japan. While a suspect is detained, an investigation of the facts constituting an offense as well as aggravating or mitigating circumstances related to these facts must be completed. Only when, as a result, there is a firm belief that this person is guilty and prosecution is appropriate, a public prosecution against him/her is instituted. Thus, the investigation undertaken during a suspect's detention must be extremely thorough. From this point of view, a detention period of 22 or 23 days at the maximum, as described in the Third Periodic Report, is a reasonable time period, which duly balances the needs of the investigation, that is the public interest with those of guaranteeing the right of the suspect.

(b) The Investigation and Prosecution, while the Suspect remains at Home or on Bail

At an investigation and legal proceedings for public prosecution of a suspect, public prosecutors and judicial police officers judge carefully whether it is necessary to detain that person. If detention is deemed unnecessary, because of the minor degree of seriousness of the crime and the limited possibility that the suspect will destroy or alter criminal evidence or flee, they conduct the investigation and institute legal proceedings for public prosecution while the suspect remains at home. Even after the detention, if they recognized that the suspect's detention is no longer necessary, he/she will be released and legal proceedings for public prosecution will be instituted.

In only about 23 to 30 percent of the cases handled by public prosecutors between 1990 and 1995 (excluding the cases of professional or gross negligence while driving a car and the like resulting in death or bodily injury, as well as those of violation of the " Road Traffic Act" and so on), the suspect concerned was arrested. Moreover, the ratio of the cases in which a public prosecution was instituted while the suspect(s) concerned were detained accounted for only about 10 to 14 percent.

A defendant detained can be granted bail on condition that he/she pays deposit. The defendant, the defense counsel(s) of the defendant, legal representative, curator, and a certain range of relatives are permitted to apply for bail. When there is an application for bail, bail must be granted, unless there is a ground to deny it listed in Article 89 of Code of the Criminal Procedure, that is , for example, the defendant committed a crime punishable with the death penalty, life imprisonment, or imprisonment for a period of not less than one year as a statutory minimum, or there is a reason to believe that the defendant will destroy or alter criminal evidence. Even in the cases, where there is no legal need to grant bail, the court can grant release on bail in virtue of its office, if it recognizes the bail as appropriate (Article 90 of the law). About 71 to 79 percent of defendants adjudicated at first instance by district courts between 1990 and 1995 were under detention order and about 19 to 27 percent of defendants under detention order were released on bail.

(c) System for Suspension of Execution of Detention and System for Disclosure of the Reasons for Detention

Concerning the rights provided in Paragraph 4 of this article, a judge must disclose the reason for detention in open court when requested by the detained suspect, defendant or the like. Furthermore, when recognized as appropriate, a court can suspend execution of detention, and when there is no longer any reason or need for the detention the court must rescind the detention either at the request of the suspect, defendant or the like, or on its own initiative.

(d) So-called " Arrest or Detention on Separate Charges"

When a person is suspected of having committed two or more crimes, interview with the suspect's voluntary cooperation for a charge other than one for which he/she is detained is generally permitted. For example, such interview is raised when it is necessary to look into other related facts with a view to clarify the case as whole; or in cases, from the viewpoint of the suspect's advantage, questions into the other charges during his/her arrest or detention for the initial charge is more favorable than arresting or detaining him/her for each charge repeatedly.

However, as stated in the Third Periodic Report, both the reasons and necessity for arresting or detaining a suspect must refer to a particular legal charge. Therefore it is not permitted, without reasons to arrest or detain a suspect on the charge, to arrest or detain him/her for the purposes of investigating other charges. In other words, " the arrest or detention of a suspect in case B for the purposes of investigating case A" is not permitted. There is judicial precedent to exclude evidence, including confessions, obtained during an illegal arrest or detention on a separate charge. Thus, unlawful arrest or detention with the purpose of obtaining evidence is prevented.

(e) System and Practice of Interviews

The " Code of Criminal Procedure" (Article 198, Paragraph 1), provides that, when deemed necessary a public prosecutor, public prosecutor's assistant officer or judicial police officer can ask any suspect to appear in their offices for interview. However, except for the cases, where the suspect is already under arrest or detention, he/she can refuse to appear and can withdraw at any time during his/her appearance (proviso clause in the same Paragraph).

The Constitution guarantees the right to remain silent by prescribing " No person shall be compelled to testify against himself/herself" (Article 38, Paragraph 1). In order to realize the spirit of this provision, the " Code of Criminal Procedure" provides (Article 198, Paragraph 2) that a suspect has the right to remain silent and, at the time of interview, the suspect should be notified in advance that he/she is not required to make a statement against his/her own will.

At the investigation, the interview of the suspect may be recorded in a written statement. The above-mentioned officers should allow him/her to peruse the statement or read it to him/her for his/her verification, and if he/she makes a motion for any addition or deletion or alteration, they should add his/her remarks in the statement (Article 198, Paragraphs 3 and 4). When the suspect affirms that the contents of the written statement is correct, they can ask him/her to sign and seal it. This shall not apply, if the suspect refuses to do so (Article 198, Paragraph 5). Unless the party concerned consents, a written statement, which has neither a signature nor a personal seal, can not be used as evidence (Article 322, Paragraph 1 and Article 326).

Of course, the way of interviews such as compulsion, torture, threat is not permitted. Likewise, the interview, which would cast doubts on the voluntariness in the testimony of the suspect is not permitted. The Code of Criminal Procedure stipulates that any confession made under compulsion, torture or threat; or made after unduly prolonged arrest or detention; or which is not proved to have been made voluntarily, shall not be used as evidence (Article 319, Paragraph 1). Moreover, any written statement including admission of facts adverse to the defendant's interests, which are not proved to have been made voluntarily, shall not be used as evidence (Article 322, Paragraph 1). Due process regarding the interview and the rights of suspects and defendants are thus guaranteed under the law covering evidence.

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