Remedies and Compensation Measures in Cases of Human Rights Infringement
|88.||The following measures are being taken for effective protection and remedies in case of human rights infringement.|
Remedies by Judicial Organs
|89.||The Constitution stipulates respect of fundamental human rights, including various liberties (Article 11), equality under the law and prohibition of racial discrimination (Article 14, Paragraph 1). If a public official of the Government or public entities exercising public authority inflict damage on a person based on racial discrimination in the course of performing his/her duties, the Government or the local public entities concerned shall be liable to compensate the damages fairly and properly according to the Law Concerning State Liability for Compensation.|
In civil law, racially discriminatory actions infringing on human rights may be deemed null and void (Articles 1 and 90, the Civil Code). A person who violates the rights of others by racially discriminatory conduct must give compensation for any damage arising therefrom under certain conditions (Article 709). The person must give fair and proper compensation.
The Constitution guarantees all people the right of access to the courts (Article 32), so a victim of racial discrimination can make a claim to the court for redress under the respective laws.
|90.||On the other hand, the following procedures are taken if racially discriminatory conduct constitutes a crime. As to the criminal trial procedure, only public prosecutors can institute prosecution (Article 247, the Code of Criminal Procedure), but a person who has been injured by an offence may file a complaint to the investigative authorities (Article 230). Moreover, any person who believes an offence has been committed may lodge an accusation to the investigative authorities (Article 239). In other words, when racial discriminatory conduct infringing on human rights and fundamental freedom constitutes a crime, people may make complaints or accusations. The investigative authorities fairly investigate the case based upon these complaints or accusations, and if they collect enough evidence for prosecution, a public prosecutor indicts the said case in the court.|
The following are examples of cases of redress by a judicial organ:
|91.||A Korean resident in Japan, in fear of not being employed if his nationality was known, kept secret the fact that he was a Korean resident and entered instead a Japanese name under name and birth place on his curriculum vitae and on the report on his family, which he submitted in applying for employment. He was informally employed by the Japanese company, but later dismissed according to the employer's reserved cancellation right on the grounds of false statement. The Court ruled that the dismissal, which was made on the grounds of his being a Korean resident without any other rational reason, constitutes unfair conduct according to Article 3 of the Labor Standards Law and Article 90 of the Civil Code. The Court ordered damage compensation to be paid for the mental anguish inflicted on the plaintiff due to ethnic discrimination.|
|92.||A Korean resident in Japan who applied for tenancy agreed on the lease with a real estate agent, but the owner refused to conclude the contract mainly on the grounds that he was a Korean resident. The Court ruled that this was in violation of the dignity of the individual (Article 1, Paragraph 2, the Civil Code) in the preliminary contract stage, and ordered compensation for damages according to Article 709 of the Civil Code.|
Legal Aid System
|93.||A Legal Aid System is one that substantially guarantees the right of access to the courts as stipulated in Article 32 of the Constitution. This system pays lawsuit and attorney expenses for people who cannot file a suit or consult an attorney because of poverty. The system applies to foreigners as well, provided that he/she is expected to reside in Japan until he/she has reimbursed all payments after the conclusion of the case. The assisted person has to fully repay the costs, however, he/she might be permitted a deferment or even exemption of the payment if he/she has difficulties in repaying due to his/her financial ability and living conditions. The Legal Aid Association, established in 1952, plays the leading role in running this system and the Government of Japan provides subsidies to the said Association to make it work effectively. The number of legal aid cases increases every year. There were 8,172 cases reported in 1997.|
Redress by the Administrative Organizations
|94.||In Japan, the following measures are being taken, besides judicial redress to guarantee the right to request effective protection or remedy to all people in cases where racially discriminatory conduct takes place. When the said person still has complaints about the result of redress given by the administration organizations, he/she can file a suit in the court in pursuit of judicial redress under the Japanese judicial system.|
Administrative Appeal Law
|95.||In Japan, people can make a complaint against illegal or improper dispositions according to the Administrative Appeal Law. This measure is available to all people, and thus the Government ensures a mean to give redress to the people in case of infringement of their rights.|
Immigration Control and Refugee Recognition Act
|96.||Article 4 of the Administrative Appeal Law sets out the cases in which an appeal is not permitted. One such case is the disposition regarding the entry and departure of foreigners (Item 10, Paragraph 1, Article 4, the Administrative Appeal Law). However, Immigration Control and Refugee Recognition Act has the following system of filing complaints. Foreigners who are subject to this system can cite unfairness and can call for reconsideration in making a complaint about the discriminatory disposition based on differences of race or ethnicity.|
(1) Landing procedures (a foreigner recognized as not meeting landing requirements by the special inquiry officer can file an objection with the Minister of Justice.)
(2) Deportation procedures (a foreigner whose deportation is deemed appropriate by the immigration inspector can request a hearing to the inquiry officer. Moreover, if the special inquiry officer judges that the immigration inspector was not mistaken, the foreigner can file an objection with the Minister of Justice.)
(3) Refugee recognition procedures (a foreigner whose application for refugee recognition was rejected or whose refugee status was revoked can file an objection with the Minister of Justice.)
The Structure of the Human Rights OrgansCivil Liberties Bureau of the Ministry of Justice and Its Lower Organs
|97.||The Civil Liberties Bureau was established in the Ministry of Justice as the central administration organization engaging in human rights protection. The Civil Liberties Department in the Legal Affairs Bureau and the Civil Liberties Division in the District Legal Affairs Bureau were respectively established as their lower organs and officials engaged in human rights protection are sent to the branch offices of the Legal Affairs Bureau/District Legal Affairs Bureau, since people should have easy access to human rights protection and the system should be closely connected to the community in order to give a means of redress to victims of human rights infringements occurring in the daily lives of the general public.|
The Civil Liberties Commissioners
|98.||The Civil Liberties Commissioners voluntarily engage in human rights protection activities among community residents. The system of Civil Liberties Commissioners was established with the concept that it is most desirable to keep an eye on human rights infringements and promote awareness of liberty and human rights, having contact with people's daily lives in cooperation with people of good character and broad knowledge chosen from the local communities.|
The Minister of Justice appoints a Civil Liberties Commissioner from a slate of nominees recommended from each chief of municipality. The commission follows a democratic and careful procedure, as follows:
(a) The mayor hears the opinion of the municipal assembly and recommends a person with good character and broad knowledge of social affairs in general as well as deep understanding of the importance protecting human rights among residents.
(b) The Minister of Justice appoints the above-mentioned nominee after hearing opinions from the bar association and the Prefectural Federation Consultative Assemblies of the Civil Liberties Commissioners in the Prefecture where he/she is a resident.
Thus, the Civil Liberties Commissioners are chosen from all fields. About 14,000 commissioners are now placed in municipal districts nationwide.
The Council for Human Rights Promotion
|99.||The Council for Human Rights Promotion was established in March 1997 based on the Law of Promotion of Measures for Human Rights Protection enacted in December 1996.|
The Council has been researching and deliberating on "the basic matters of comprehensive development of measures concerning human rights education and promotion activities, which enhance the level of understanding on the concept of respecting human rights among citizens" as well as " the basic matters of improvement of measures regarding to the relief of the victim in case of infringements on human rights."
The Activities of Human Rights OrgansThe Investigation/Disposition of Human Rights Infringement Cases
|100.|| "Infringement upon human rights" in human rights infringement cases that the human rights organs deal with, refers to "conduct against the idea of respect of human rights which is a fundamental principle of the Constitution." Racially discriminatory acts are the subject of "human rights infringements." The subjects include not only violations of conventions/law or order, but also socially improper conduct. A human rights infringement which has already been a subject of either a criminal or civil lawsuit should be treated by the court, the prosecution office and the police, and for this reason, in principle, the human rights organs are not involved in such a case.|
The investigation as to whether human rights have been infringed or not, starts when the human rights organs receive a request from the persons concerned, or when it learns of a suspected human rights infringement case through the media. The investigation has no legal statue and is made possible only with the voluntary cooperation of the persons concerned (a so-called voluntary investigation). The reason is that the purpose of the investigation of the human rights organs is, unlike the criminal investigation which aims to impose criminal sanctions on criminals, to raise awareness of the persons concerned of human rights in the course of the investigation, and let them voluntarily remove the existing phenomena of human rights infringement and give a means of redress to victims in practice.
Following the investigation, if a human rights infringement is found, the human rights organs will deal with the case according to its nature (see below). If human rights infringements continue to take place, the organs gives the means of redress to the victim by removing the phenomena of violation through education of the persons concerned. In cases where human rights infringements have already taken place, however, they urge the violator and his/her guardian who is in the position to instruct/supervise him/her, to search his/her conscience by letter (warning, counsel) or oral expression (counsel) (see Annex 7) so as to avoid any recurrence in the future. If improvement of administrative measures is deemed necessary, the organs are to notify the authorities concerned to that effect.
|101.||The number of human rights infringement cases accepted in 1997 was 16,148, of which cases of racial discrimination reported in 1998 were as follows:|
|102.||(a) A real estate agency refused a foreigner the right to lease an apartment asking him/her to "refrain from leasing at the owner's request". According to the investigation into the matter conducted by the human rights organ of the Ministry of Justice, however, this was confirmed as an act of discrimination against foreigners in the lease of an apartment based on prejudice against them. The real estate agency was asked to reconsider its attitude considering the explanation that such acts could not be overlooked under human rights protection, in accordance with the purpose of the respect of fundamental human rights under Articles 13 and 14 of the Constitution, and also in consideration of Japan's responsibility as a contracting country to the International Convention on the Elimination of All Forms of Racial Discrimination. As a consequence, the real estate agency expressed regret for the said act and promised that they would endeavor to obtain an appropriate understanding of issues regarding foreigners. (The result of the disposition was "explanation".)|
|103.||(b) A village which received a report that a girl had been touched by a foreign visitor at a public swimming pool in the village , decided to restrict foreigners' use of the pool, and put up notices stating "Foreign visitors are prohibited from using the swimming pool at this time".|
The human rights organs of the Ministry of Justice explained to the persons of the village responsible for this decision that such a measure discriminating against foreigners in general was in violation of the Constitution of Japan and the Universal Declaration of Human Rights as well as the International Convention on the Elimination of All Forms of Racial Discrimination, and they could not overlook such discrimination in the light of the protection of human rights. And they required the village to withdraw the decision and the notices immediately. As the result, the village accordingly withdrew them. (The result of the disposition was "elimination measures".)
Human Rights Counseling
|104.|| The Human Rights Counseling Rooms are open at all times in the Legal Affairs Bureau/District Legal Affairs Bureau and their branch offices, and the occasional offices set up at municipal halls, department stores, and community centers. Officials of the Legal Affairs Bureau and the Civil Liberties Commissioners offer counseling there. The counseling is free of charge and the contents of the counseling are kept strictly confidential. In counseling, the officials of the Legal Affairs Bureau and the Civil Liberties Commissioners carefully listen to the people requesting help and, based on the merits of the case, render assistance, such as giving advice on procedures necessary to protect rights or introducing related organs that can deal with their particular problem. For cases where an investigation/disposition of the human rights organs is deemed necessary, a human rights infringement case is considered, and measures are taken as described in "the Investigation/Disposition of Human Rights Infringement Cases" (para. 100).|
As the number of foreigner in Japan increases, new types of human rights problems occurs, and the number of couseling cases by foreigners also increases. To cope with this, counseling rooms in the eight Legal Affairs Bureaus/District Legal Affairs Bureaus offer human rights counseling for foreigners with English and Chinese translators stationed on designated days of the week. The other Legal Affairs Bureau/District Legal affairs Bureaus also offer this language service occasionally during Human Rights Week and so on. This service and other human rights counseling service are offered free of charge, and the Bureaus take care to protect the privacies of the foreigners.
|105.||The following are some of the counseling cases about foreigners at the above-mentioned human rights organs in 1998. However, the organs did not conduct investigations into these cases as infringements on human rights because they were passed to other appropriate organizations, or because the person him/herself did not request further interference by the human rights organ.|
(a) The company did not pay my salary although payday had already passed, and then tried to fire me (Brazilian national).
(b) My son/daughter cannot make friends with Japanese probably because the housewives in the neighborhood tell their children not to play with non-Japanese children (Chinese national).
The Dissemination and Enhancement of the Concept of Respect for Human Rights
|106.||Officials engaged in human rights protection and the Civil Liberties Commissioners work together to disseminate and enhance the concept of respect for human rights. (For details, see Article 7.)|
Back to Index