29 November 2022 (Reiwa 4)

Pleading

To: Osaka Magistrate’s Court

Indication of case namePlaintiffs’ representatives (Lead Attorney)

Attorney Kyoji Mizutani

Same as above

Attorney Yukihiro Masaki

Same as above

Attorney Yukiko Sadaoka

Same as above

Attorney Ikuya Nakao

Same as above

Attorney Yoshiyuki Nishi

Same as above

Attorney Koji Joshi

Same as above

Attorney Takeshi Kaneko

Requests for suspension of execution of hanging, etc.

Value of the subject matter of a lawsuit 33 million yen
Stamp duty amount

13,200 yen

Annexures
A duplicate copy of the pleading
1 letter of appointment for each lawsuit
Copy of A certificate 1 copy eachParty List
Indication of Plaintiffs:

As shown in the attached list of Plaintiffs.

Indication of Plaintiff’s Agent
Nishitenma Park Bldg. 3, 3F, 3-14-16 Nishitenma, Kita-ku, Osaka Japan 530-0047
Shinyu Law Office (Place of service)
Phone: 06-6313-1545 / Fax: 06-6313-1546
Plaintiffs’ representative
Attorney Kyoji Mizutani
Same as above
Attorney Yoshiyuki Nishi
Same as above
Attorney Koji Joshi

Same as above

Attorney Yukihiro Masaki

Same as above

Attorney Takeshi Kaneko

Legal Nishitenma Bldg. 905, 4-9-12 Nishitenma, Kita-ku, Osaka, Japan 530-0047
Seisho Law Office
Phone: 06-6363-1316 / Fax: 06-6363-1326
Plaintiffs’ representative Attorney Yukihiro Masaki
Access Bldg. 7F, 4-6-18 Nishitenma, Kita-ku, Osaka, Japan 530-0047
Sofio Law Office
Phone: 06-6315-8284 / Fax: 06-6315-8285
Plaintiffs’ representative Attorney Yukiko Sadaoka
Nishitenma Five Bldg. 301, 5-16-3 Nishitenma, Kita-ku, Osaka, Japan 530-0047
C&L Law office
Phone: 06-6365-1210 / Fax: 06-6365-1220
Plaintiffs’ representative Attorney Ikuya Nakao
Umeda Plaza Bldg. Annex 9F, 4-3-25, Nishitenma, Kita-ku, Osaka, Japan 530-0047
Kaneko & Naka Law Office
Phone: 06-6364-6411 / Fax: 06-6364-6410
Plaintiffs’ representative Attorney Takeshi Kaneko

1-1-1, Kasumigaseki Chiyoda-ku, Tokyo, Japan 100-8977
Defendant

Country Representative Minister of Justice Yasuhiro HanashiPurpose of Claim
1. The defendant shall not execute the plaintiffs by hanging.
2. The defendant confirms that the plaintiffs are not obligated to accept the death penalty by
hanging.
3. The defendant shall pay to the plaintiffs 11,000,000 yen each, plus interest at the rate of 3% perannum from the day after service of this suit.
4. The defendant shall bear the costs of the lawsuit, and a declaration of provisional execution isrequested with respect to Paragraph 3.

Cause of claim
I. Parties ............................................................................................................................ 9
1 Plaintiffs ................................................................................................................................ 9(1) Plaintiff A ................................................................................................................................................... 9(2) Plaintiff B ................................................................................................................................................... 9(3) Plaintiff C ................................................................................................................................................... 9

2 Defendant .............................................................................................................................. 9

II. Procedure and Method of Execution ............................................................................ 10
1 How is the Death Penalty Executed? ..................................................................................... 10
1 Appeal by the public prosecutor to direct the execution ........................................................................ 10
2 Death Penalty Execution Orders by the Minister of Justice .................................................................... 10
3 Conduct of Execution of Death Penalty by Public Prosecutor ................................................................. 10
4 Execution of the death penalty ................................................................................................................ 10

2 Method of Execution of Death Penalty against the Condemned person ................................. 10
1 Provisions on Method of Execution of Death Penalty ............................................................................. 10(1) Provisions of the law .......................................................................................................................... 10(2) Provisions of the Dajokan Nunbunsho No. 65 of 1873 ..................................................................... 11(3) There are no laws and regulations regarding the method of execution of hanging other than the
Dajokan's Proclamation........................................................................................................................... 13(4) Summary............................................................................................................................................. 13
2 Practice of Execution of Death Penalty .................................................................................................... 13(1) Outline of the method of execution .................................................................................................. 13(2) Specific Scenes of Executions ............................................................................................................. 14
3 Place of execution (execution site) ........................................................................................................... 18(1) Undisclosed location of the place of execution ................................................................................ 18(2) Tokyo Detention Center's execution site open to the public ........................................................... 20(3) Difference between the Dajokan's Proclamation and the actual situation as revealed in thegovernment's response. .......................................................................................................................... 24
4 Problematic nature of non-disclosure of information on the death penalty .......................................... 28

III. Hanging - What it means to die by hanging ................................................................ 29
1 The reality of hanging has been hidden from the public......................................................... 29
2 What is death by hanging? ................................................................................................... 29
3 Mechanism of Death by Hanging .......................................................................................... 30
1 Expert opinion of Dr. Tanemoto Furuhata ............................................................................................... 30
2 Medical explanation of the mechanism of death by hanging ................................................................. 31(1) Death by hanging ............................................................................................................................... 31(2) Five mechanisms leading to death by hanging.................................................................................. 32
3 Errors in the Furuhata’s Opinion .............................................................................................................. 33(1) "Instantaneous loss of consciousness" is not "the most painless and easy way to die................... 33(2) Significant damage to the corpse ...................................................................................................... 34
4 The mechanism leading to death is not predictable. ............................................................................... 36

IV. Death Penalty and International Human Rights Law ................................................... 36
1 Why International Human Rights? ........................................................................................ 36
1 The Purpose of this Petition and International Human Rights ................................................................ 36
2 The Need for International Human Rights Law ........................................................................................ 36
3 Birth of the Covenant on Civil Liberties .................................................................................................... 37

2 Interpretation of the Covenant on Civil Liberties ................................................................... 37
1 The Committee on the Covenant on Civil Liberties is responsible for the interpretation andclarification of the Covenant. ...................................................................................................................... 37
2 Importance of the Committee's Interpretation of the Covenant ............................................................ 38

3 International Human Rights Law Norms on the Execution of the Death Penalty ..................... 39
1 Provisions of the Covenant on Civil Liberties ........................................................................................... 39
2 Right to life/prohibition of arbitrary deprivation of life .......................................................................... 40
3 Strict Limitations on the State's Authority to Apply and Execute the Death Penalty ............................. 40(1) Direction to Abolish the Death Penalty............................................................................................... 40(2) Strict Limitations on the Application of the Death Penalty and Execution Authority ......................... 41
4 Prohibition of cruel, inhuman or degrading treatment or punishment .................................................. 43

4 The Covenant on Civil Liberties as a Legal Norm and Binding on Japan ................................... 44
1 Ratification (Acceptance) of the Covenant and Binding on the State ..................................................... 44
2 State Binding Nature of the Covenant on Civil Liberties .......................................................................... 44
3 The Covenant on Civil Liberties as Domestic Law in Japan ...................................................................... 45(1) Domestic Effect of the Covenant on Civil Liberties ............................................................................. 45(2) Domestic Legal Status of the Covenant on Civil Liberties ................................................................... 45(3) Judicial Normativity of the Covenant on Civil Liberties ...................................................................... 46(4) Direct applicability and superiority over law have been recognized in judicial decisions .................. 46
4 Summary ................................................................................................................................................... 48

5 Violations of the Covenant on Civil Liberties ......................................................................... 49
1 "Cruel, inhuman or degrading treatment or punishment" means .......................................................... 49
2 Criteria for "cruel, inhuman or degrading treatment or punishment ..................................................... 49(1) Death penalty itself is a violation of Article 7 of the Covenant on Civil Liberties ............................... 49(2) Execution methods that cause as little physical and emotional distress as possible ......................... 50
3 Hanging constitutes "cruel, inhuman or degrading treatment or punishment.".................................... 52(1) Examination of Japan's Report at the Committee against Torture4 ................................................... 53(2) Report of the Special Rapporteur at the UN Human Rights Council ................................................... 54
4 Short Summary.......................................................................................................................................... 56

6 Summary - Japan's Hanging Violates the Covenant on Civil Liberties ...................................... 56

V. The Brutality and Inhumanity of Japanese Hangings .................................................... 57
1 Subjective and Objective Cruelty .......................................................................................... 57
2 Standards of cruelty, inhumanity, and decency change over time. ......................................... 58
3 Changes in Execution Methods to Avoid Cruelty.................................................................... 58
1 Changes in Methods of Execution in Japan .............................................................................................. 58(1) Study and Transition of Execution Methods in the Meiji Era.............................................................. 58(2) Abolition of the hanging tool in the New Ritual era ........................................................................... 59(3) Consolidation to hanging by abolition of the barbaric show and beheading ..................................... 59(4) Changes in enforcement methods aimed at avoiding objective cruelty ............................................ 60

(5) Short summary .................................................................................................................................... 61
2 Trends of Abolition of the Hanging Sentence in the United States ......................................................... 61(1) History of the abolition of hanging ..................................................................................................... 61(2) Reason for the change from hanging to electric execution ................................................................ 62
3 Short Summary.......................................................................................................................................... 63

4 Brutality and Indignity of Hanging......................................................................................... 63
1 Report of the New York State Gerry Committee ..................................................................................... 63(1) Proposed Electrocution as an Alternative to Hanging ........................................................................ 63(2) 30 examples from the Gerry Report ................................................................................................... 63(3) Conclusion of the Gerry Report .......................................................................................................... 64
2 Cases of head disarticulation .................................................................................................................... 64(1) Scientific experiments and medical findings ....................................................................................... 64(2) Reported cases of head dismemberment abroad .............................................................................. 65(3) Neck injury not resulting to head dissection....................................................................................... 67
3 Other “Failures” ........................................................................................................................................ 68
4 Problematic cases of hangings in Japan and confidentiality of information .......................................... 68
5 Sub-summary – the atrocity nature of execution by handing ................................................................. 69

5 Subjective Cruelty to the Condemned person ........................................................................ 69
1 How death is caused by the execution of the hangman's noose ............................................................ 69
2 Condemned person's suffering in light of the mechanism of death by hanging..................................... 69(1) When the brain is deprived of oxygen due to compression of the jugular vein ................................. 69(2) When obstruction of the pharynx makes it impossible to breathe .................................................... 70(3) In case of head dissection ................................................................................................................... 71(4) Cervical vertebral fractures with injury or compression of the medulla oblongata ........................... 71(5) Acute heart failure due to vagus nerve injury .................................................................................... 72
3 Experiments on pain caused by hanging .................................................................................................. 72
4 Should we be willing to accept the pain and suffering caused by hanging? ........................................... 73(1) One does not lose consciousness in an instant................................................................................... 73(2) Osaka District Court ruling stating that the suffering caused by the hanging should be indulged. .... 73
5 Pain of being exposed to a cruel way of death ........................................................................................ 75(1) Distress of "such a way of death” ....................................................................................................... 75(2) Fleishman report re-cited in Asada's literature .................................................................................. 75(3) Dr. Lovell's five mechanisms and changes in appearance following the execution of the hangings. . 77
(4) Condemned person's thoughts and suffering ..................................................................................... 78
6 Short Summary.......................................................................................................................................... 78

VI. Hanging undermines human dignity ........................................................................... 78
1 Development of the Idea of Human Dignity .......................................................................... 78
1 Meaning and Role of Human Dignity ....................................................................................................... 78
2 International Developments in Human Dignity ....................................................................................... 78(1) Charter of the United Nations (1945) ................................................................................................. 78(2) Universal Declaration of Human Rights (1948) ................................................................................... 79(3) German Basic Law (Kou-G2, 1949) ...................................................................................................... 79(4) Covenant on Civil Liberties (1966) ...................................................................................................... 79(5) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(1984, Kou-G3) ......................................................................................................................................... 79(6) The development of the United States Supreme Court's Eighth Amendment precedent ................. 80(7) Mandela Rule (2015) ........................................................................................................................... 80

3 Japanese Executors ................................................................................................................................... 80

2 The Punishment of Death by Hanging ................................................................................... 81
1 Violates "human dignity" by inflicting pain that goes beyond taking a life ............................................ 81
2 Human dignity is guaranteed to the executor. ........................................................................................ 81

3 The Case of the United States of America.............................................................................. 82
1 Death Penalty in the United States of America ....................................................................................... 82
2 Changes in Methods of Execution and "Human Dignity” ........................................................................ 82(1) Changes in execution methods ........................................................................................................... 82(2) Current execution method .................................................................................................................. 82(3) Reason for change in execution method ............................................................................................ 84
3 Explanation of the method of execution (execution method) and human dignity ................................ 85(1) Disclosure and explanation of the method of execution of the death penalty (Description of
explanation) ............................................................................................................................................. 85(2) Disclosure of information on the method of execution to the executor ............................................ 91
4 Choice of Execution Method and Human Dignity .................................................................................... 92
5 Differences from Japanese Executors....................................................................................................... 92

4 Injury to the Body and Human Dignity .................................................................................. 93
1 Death that disfigures the appearance of the body violates human dignity. ........................................... 93
2 Desecration due to significant physical damage ...................................................................................... 93

5 Dignity of Japanese Condemned persons Does Not Extend to Animals to be Killed ................. 94
1 Treatment of Condemned persons by the Japanese Ministry of Justice ................................................ 94
2 From "Human Dignity" to "Dignity of Life” .............................................................................................. 94
3 Specific methods for killing dogs and cats (Ministry of the Environment Notification No. 105) ........... 95
4 Divergence between Dajokan Proclamation No. 65, which regulates hanging, and the Ministry of theEnvironment Announcement, which regulates culling. .............................................................................. 96

6 Illegal violation of human (individual) dignity........................................................................ 96VII. Illegality of Hanging in Japan - Summary ................................................................... 97
1 Hanging in Japan does not meet the minimum pain test - violation of the Covenant on Civil Liberties 97
2 Hanging in Japan violates the human (individual) dignity of the condemned ........................................ 98
3 Hanging in Japan is also contrary to Articles 13 and 36 of the Japanese Constitution ........................... 98

VIII. Plaintiffs' Damages - Fear of Execution by Hanging ................................................... 99
1 The pain of not having an explanation for the hanging ........................................................................... 99
2 Thoughts of a death-penalty convict ...................................................................................................... 100
3 Short summary ........................................................................................................................................ 102

IX. Plaintiffs' Claims ....................................................................................................... 102
1 Injunction against Execution of Death Penalty by Hanging ................................................... 102
1 Illegality of the defendant's execution of the death penalty ................................................................ 102
2 Dispositional nature ................................................................................................................................ 102(1) Framework for Execution of Death Penalty ...................................................................................... 103
3 Fulfillment of Requirements for Injunction (Article 37-4 of the Administrative Procedure Act) ......... 104(1) Unclear and arbitrary selection criteria for execution targets .......................................................... 105(2) No legal means to prevent ................................................................................................................ 105
4 Legal interest ........................................................................................................................................... 106
5 Jurisdiction .............................................................................................................................................. 106

1 Necessity of Party Suit under Public Law ........................................................................................... 107
2 Legal contestability ................................................................................................................................. 107
3 Benefit of confirmation ........................................................................................................................... 107
4 Replenishment ........................................................................................................................................ 108
5 Court Decisions Holding Substantial Party Actions is Legal with Respect to the Absence of an
Obligation to Accept Execution of Death Penalty ..................................................................................... 108

3 Lawsuits for State Compensation ........................................................................................ 109
1 Breach of duty by the defendant public official ..................................................................................... 109(1) Compensation for plaintiffs' pain and suffering: 10,000,000 yen each ............................................ 110(3) Late payment of damages: 3 percent per annum ............................................................................. 110

X. Conclusion - Why Keep Hanging Executions Secret? ................................................... 110
1 Concealing the Execution of the Hanged Man ..................................................................... 110
2 The Investigation Commission on the Execution System and the Execution of Death Penalty(Hanging) .............................................................................................................................. 111
1 Study on Method of Execution of Death Penalty ................................................................................... 111
2 Recommendations of Subcommittee I ................................................................................................... 111
3 The First Subcommittee recognized the cruelty of hanging. ................................................................. 111
4 Report of the Investigation Commission on the Execution System and the Government's Nondisclosure of Information on the Death Penalty ....................................................................................... 112

3 How were executions carried out under the secrecy of death penalty information? ............. 112
1 Prison Officer ........................................................................................................................................... 116
2 Chaplain ................................................................................................................................................... 116
3 Prosecutor ............................................................................................................................................... 116

5 The defendant should reveal the reality of the death penalty. ............................................. 117

This case is a trial to determine the cruelty of executing a person by hanging.

I. Parties
1 Plaintiffs(1) Plaintiff A
Plaintiff A (born August 1-4, 1954) was charged with murder and destruction and abandonment of acorpse. Plaintiff A (born on August 1, 1954) was convicted of murder and destruction or
abandonment of a corpse. On March 30, 1998, the Osaka District Court sentenced plaintiff A todeath. On March 15, 2001, the Osaka High Court dismissed plaintiff A's appeal and upheld the death
sentence handed down in the first trial. On December 15, 2005, the First Petty Bench of the Supreme
Court rejected plaintiff A's appeal, and the death sentence became final. Plaintiff A is currently being
held in the Osaka Detention Center. A request for retrial is currently pending.
(2) Plaintiff B
Plaintiff B (born March 9, 1971) ) was charged with murder, robbery, homicide, and other crimes. On
January 20, 2002, the Ichinomiya Branch of the Nagoya District Court sentenced plaintiff B and his two
alleged accomplices to death. B and his two accomplices were sentenced to death. On July 8, 2003,
the Nagoya High Court dismissed the appeals of plaintiffs B and others, and upheld the death sentences.
On January 30, 2007, the Third Petty Bench of the Supreme Court dismissed all appeals by plaintiffs B
and others, and the death sentences became final. After the death sentence became final, plaintiff B
was transferred to the Osaka Detention Center. A request for retrial is currently pending.
(3) Plaintiff C
Plaintiff C (born December 22, 1984) was charged with injury, violation of the Violent Acts Punishment
Law, robbery, and murder. Plaintiff C (born on December 22, 1984) was convicted of assault, violationof the Violent Acts Punishment Law, robbery, murder, and other crimes. On May 22, 2007, the Osaka
District Court sentenced only plaintiff C to death. On May 20, 2008, the Osaka High Court dismissed
plaintiff C's appeal and maintained the death sentence. On March 25, 2011, the Second Petty Benchof the Supreme Court dismissed plaintiff C's appeal, and the death sentence became final. Plaintiff C iscurrently being held in the Osaka Detention Center.
2 Defendant
The Defendant is the Executioners who executes the death penalty against the Plaintiffs.

II. Procedure and Method of Execution
1 How is the Death Penalty Executed?
1 Appeal by the public prosecutor to direct the execution
Pursuant to Article 472 of the Code of Criminal Procedure, the head of the public prosecutor's office
to which the public prosecutor who is to direct the execution of the sentence (hereinafter referred toas "prosecutor directing the execution") belongs shall, when the sentence of death becomes final,
submit a written request for execution to the Minister of Justice, together with two copies of thecriminal final case record and its written decision, and submit a request regarding execution (Rule 9 of
Execution Administration Regulation - Kou-C1).
2 Death Penalty Execution Orders by the Minister of Justice
The Minister of Justice shall order the execution of the death penalty by the public prosecutor after
reviewing the application for execution (Article 475, Paragraph 1 of the Code of Criminal Procedure).
3 Conduct of Execution of Death Penalty by Public Prosecutor
When the Minister of Justice orders the execution of the death penalty pursuant to Article 475,
paragraph 1 of the Code of Criminal Procedure, the public prosecutor shall direct the warden of thepenal institution to execute the death penalty by means of a written order (Rule 10-1 of Execution
Administration Regulations – Kou-C1). The order of execution is issued within five days of the Ministerof Justice's order (Article 476 of the Code of Criminal Procedure).
4 Execution of the death penalty
Upon receiving notification, the warden of the penal institution (detention director) notifies the inmateof the execution and executes the death penalty by hanging. Currently, the notification is made on themorning of the execution, two to three hours before the execution, and until then, the confirmed
offender is not informed of the execution date.
2 Method of Execution of Death Penalty against the Condemned person
1 Provisions on Method of Execution of Death Penalty(1) Provisions of the law
Article 11, Paragraph 1 of the Penal Code stipulates that "the death penalty shall be carried out by
hanging in a penal institution," and Article 11, Paragraph 2 stipulates that "a person sentenced to deathshall be detained in a penal institution until his execution. In addition to hanging, there are othermethods of execution, such as electric or drug execution, but in Japan, hanging is the only method of
execution, and there is no other choice.
There is no law that specifically defines how hanging is to be carried out, from its beginning to its end.
Article 179 of the Act on Penal Detention Facilities and Treatment of Inmates (hereinafter referred toas the "Penal Detention Facilities Act"), which specifically defines part of the process, stipulates that

"When executing the death penalty, the noose shall be released after five minutes have elapsed since
the death of the hanged person was confirmed. The death of the hanged person shall be confirmed
after five minutes have elapsed. There are no other legal provisions.
(2) Provisions of the Dajokan Nunbunsho No. 65 of 1873
The Dajokan's Proclamation (Grand Council of State) No. 65 of 1873 (Kou-C2) is as follows (the original
katakana has been converted to hiragana).
To Prefectures
While the chart attached is being revised, each locality may manufacture the strangling
instruments in accordance with the chart on the right.
The drawing of the strangling frame, 1/60th of the actual size
Although this drawing shows a structure for strangling two dead prisoners, it can also be
used for the execution of three or more, and should be made in the same manner andpainted with black ink.
To execute the strangulation, first bind the hands behind the back, cover the face withpaper, and make the prisoner climb the stranglehold, then stand on the treadle, nextbind the feet, next apply the strangling ropes to the neck and place them on the throat,then tighten the ropes by inserting the iron ring after the top, then grind the wheel
handle, and suddenly open the treadle to release the prisoner, and hang him a foot off
the ground, for about two minutes. After two minutes, the death is observed, and theprisoner is released.
(The words "strangulation" and the following are after the original drawing of thestrangulation rack.)

(Drawings omitted below)

The above figure is a "full drawing of the shibori". Other illustrations include a backside view of thetreadle, a diagram of the machine wheel device, a plan of the treadle, and an abbreviated diagram of
the noose.
The Dajokan's Proclamation above is said to have stipulated the "rooftop strangling rack," which was
an imitation of English-style execution equipment. The condemned person (called "dead prisoner" in
the Dajokan's proclamation No. 65 of 1873) was made to climb 17 flights of stairs, bind his feet, hanga noose from the ceiling around his neck, and hang his body in midair by opening a step board. The
body was then suspended in mid-air.

The Dajokan Proclamation No. 65 of 1873 was issued about 150 years ago. With regard to its validity,
the Supreme Court of Japan, about
The Supreme Court of Japan, in its decision of July 19, 1961, p. 1106 of the Penal Code, vol. 1, No. 5,
No. 7 of the Penal Code. The Supreme Court, in its ruling of July 19, 1961, on the validity of the said
proclamation, held that the said proclamation had the force and effect of law and that the "method of
execution" of "hanging" under the said proclamation was still valid at the time of the said ruling. The
court held that the said proclamation had the force of law and that the "method of execution" of"hanging" under the proclamation was still valid at the time of the judgment.
(3) There are no laws and regulations regarding the method of execution of hanging other than the
Dajokan's Proclamation.
Article written by Supreme Court Research Officer Tadashi Kurita on the July 19, 1961 (Showa 36)
Grand Court Decision is “the Sentence of Death Penalty (Hanging) Violating Article 31 of theConstitution?” (Jurist No. 232, August 15, 1961, p. 51, <Judicial Precedents of the Time>, Kou-C. 3) 3)
and points out the following.
In the end, the 65th Decree is considered to be the basis for the method of execution of
the hanging sentence, and there are no other special orders or notices (according to an
inquiry to the Criminal Investigation Bureau and the Correction Bureau of the Ministryof Justice).
This point clearly shows that, in his investigation of the above Grand Court decision, Mr. Kurita inquiredof the Criminal Investigation Bureau and the Correction Bureau of the Ministry of Justice as to whether
or not there were any orders, notices, etc. concerning the hanging penalty, and found that there wereno special orders, notices, etc. other than the said Dajokan proclamation. In the above paper, Mr.
Kurita wrote, "It is truly strange that the basic matters concerning the execution of such a serious
punishment as the death penalty are still based on an archaic Dajokan proclamation issued about acentury ago. It is my earnest hope that legislation will be promptly enacted to meet the needs of themodern age" (Kou-C. 3, p. 55). Contrary to the wishes of the investigator Kurita, no law has ever beenenacted to date regarding hanging.
(4) Summary
As described above, the Ministry of Justice states that the current specific method of execution of thehanging penalty under Article 11 of the Penal Code is based on the Dajokan Proclamation No. 65 of
1873 (Meiji 6).

2 Practice of Execution of Death Penalty(1) Outline of the method of execution
The details of the method of execution have not been officially clarified, and nothing is clear as to how
the death penalty is carried out, at least at the Osaka Detention Center. In books and other publications,
it is generally said that the following order is used for executions.

(1) On the day of execution, the death penalty is announced and the inmate is taken to the
execution site.
(2) In the execution chamber, the inmate will receive a final instruction and make a last will andtestament.
(3) The inmate is taken to the execution chamber, blindfolded and bound, a noose is placedaround his/her neck, and he/she is made to stand on a step board.
(4) The prison guard presses several buttons at once on cue, the floorboard opens, and theprisoners fall.
(5) With the noose still around their necks, they are suspended in mid-air under the floor where
the treads were.
The distance at which the body of the condemned falls at the time of (5) above is unknown. At theTokyo Detention Center, the height from the footboard to the ground is set at 4 meters, but it is not
at all clear whether it is the same at all penitentiaries, whether it varies from prison to prison, whether
it is adjusted to be the same distance for all condemned persons, or whether it varies from executioner
to executioner.
(2) Specific Scenes of Executions
The State has never revealed how hanged condemned persons were executed and how they died. The
only way for the plaintiffs to learn about the reality of executions is through the writings of journalists
who interviewed former prison wardens, former prison guards, prison chaplains, Ministry of Justiceofficials, and prosecutors who were present at the hanging ceremonies. One of them, Osamu Aoki, in
his book "Death by Hanging" (Kou-D1), describes the scene of the execution as follows.
A man, flanked on both sides by prison guards, approaches the execution table. One of
the two veteran prison guards waiting by the execution table
One of the two veteran prison guards, who was waiting by the execution table, thought
to himself: "No matter how many times I've been involved in this job, I really don't likeit. No matter how many times I've been involved in this, it's still a really unpleasantjob. ......
As soon as the condemned prisoners were brought in and made to stand within the
one-meter square border, one of the prison guards tied their legs with a white cloth,and now he himself had to quickly place a rope around their necks.
The white rope hanging from the ceiling is about two centimeters thick. Leather iswrapped around a round loop, and iron links are attached to the base of the loop. The
rope is placed around the condemned man's neck, the iron links are placed tightly
around the back of the neck, and the rope must be tightened. The rope must not beallowed to fall off due to the shock of a fall.
We carefully inspected and prepared the execution equipment from the day before.
Perhaps feeling anxious about the execution, which could never go wrong, they evenheld a rehearsal to confirm each step of the execution procedure under the order of thedetention center director, who had only been in office a short time. However, there
were times when the condemned person suddenly resisted and went berserk.

Unforeseen circumstances can arise. That is why a veteran like myself was assigned tothe task. Even so, my legs are shaking a little from the strain.
In all the executions this prison guard has been involved in, not a single inmate hasgone berserk. Rather, they looked terrified, and without even a hint of resistance, theystood on the execution table and fell to the ground with a roar.
This time, too, the condemned stood quietly on the execution table. However, his entire
body was shaking badly. Nevertheless, at about the same time that another prison
guard tied his ankles, a rope was placed around his neck and an iron link was firmly
fastened behind his neck. Everything was in accordance with the prescribed procedure.
It probably took no more than a few minutes from the time the accordion curtains wereopened and the man stepped into the penitentiary to this point.
Everything was ready. The prison guard quickly moved away from the execution table
on which the man stood, checked once more to see the man standing in the center ofthe one-meter square border, and signaled to the room where the execution button
was located.
Namu ...... amida ...... bumps."
At that moment, the prison guard heard a small, dry voice that was certain. The man's
last words on earth. The chants of sutra chanting by the chaplain's priest echoedthrough the prison.
Push!
The low, sharp command of the prison guard in command broke the silence in the dimly
lit small room. The lamp announcing the execution also turned a bright red. The prison
guards, who had been towering against the wall, pressed the red button in front ofthem all at once. The young prison guard, who had reached the peak of his tension,
also pressed the button selflessly. His mind was already blank.
Psshhhh.
Instantly, a sound like the escape of air rang in his ears. The floor of the execution table
opened with a loud "bang! and the man fell straight down. The pulley spun violently
and the white rope creaked. The monks, who were chanting the last sutra loudly, heard
the floor beneath the man's feet open up.
"Slam! The monks, who were chanting the last sutra in a loud voice, heard the violent
sound of the floor under the man's feet opening.
(Kou-D1, pp. 28-30)
However, the eyes of the prosecutor, who was frowning at the warden's explanation,
were drawn to a square hole in the center of the "stage" through the thick glass. A
white rope was extending straight down through the center of the hole. I followed thefaintly swaying end of the rope with my eyes and saw a man's body hanging limply
from it. The execution was over in a flash.

In a dimly lit, concrete-lined room on the lower floor of the prison, the body of a manwith a rope deeply embedded in his neck was floating in the air. A medical officer
dressed in white stared up at him.
Both the veteran prison guard with the rope around the man's neck and the young
prison guard who was selflessly pressing the button in front of him were staring up at
the man who had given himself to them.
When the young prison guard finished his assigned task and came downstairs to his
room, he saw the man's body clearly. A body floating in the air, swaying slightly.
However, the young prison guard could not continue to look at it squarely and quickly
looked away.
The neck was tightened at once with a powerful force, probably due to the compressionof the hyoid bone, the tip of the tongue protruded from the man's mouth, and the front
part of the body was twitching finely and repeatedly. The man's neck, which had been
stretched out, looked oddly long. A small amount of liquid, perhaps drool or vomit, wastrickling down from his mouth to his chin.
In the room downstairs, there was also a prison guard who was supposed to catch the
man's body at the moment of execution. If the man's body was left to fall, it would
recoil and bounce up and down, left and right. Therefore, they had to hold him at theright moment and stop his body from bouncing.
It is one of the most unpleasant roles in the execution.
The young prison guard had also heard such stories from his seniors. Before theexecution, a veteran prison guard assigned to receive the prisoner said, "Please giveme a break. I am old enough to have grandchildren now! The man's body was still
twitching.
The man's body was still convulsing, but it gradually subsided. In some cases, feces andurine would be leaking from the lower half of his body. The drains at his feet are there
to take care of that.
The distance from the man's toes, which are left hanging in the air, to the floor, which
he never reaches, is about 30 centimeters. This was also the result of the veteran prison
guards adjusting the length of the rope in advance, taking the man's height and otherfactors into consideration. Everything went according to their calculations.
Time seemed to be passing unusually slowly. One minute. Two minutes. Threeminutes. ......
The medical officer began to take the pulse of the man hanging in the air. At thatmoment, the warden and the prosecutor, who had been watching the execution fromthe witness stand, also appeared in the room downstairs.
The prosecutor, who had come down to the basement, was urged by the warden, could
clearly see the man floating in mid-air.

The man was floating in mid-air. He was a corpse that had almost stopped convulsing
and was just hanging there.
He will probably lose consciousness momentarily.
The detention center chief emphasized this to the prosecutor at the witness stand.
The acceleration caused by the steep drop of several meters and the man's own weight.
All of this is concentrated on the neck in an instant. The thyroid cartilage and hyoidbone, which can be broken even in a normal hanging suicide, are instantly shattered,the muscles supporting the neck are torn, and the seven cervical vertebrae are severed.
At the same time, the cervical spinal cord, which connects the brain to the nerves ofthe body, is also severed. So, perhaps you should lose consciousness instantly - and soon.
But no one knows the truth. No one can be sure.
The medical officer was still taking the man's wrist and checking his pulse. The "averagetime" from when a condemned man falls to when his heart finally stops is roughly 13
to 15 minutes. The convulsions had already mostly subsided. But no one gathered in
the downstairs room was willing to utter a word. The medical officer now holds astethoscope to the man's chest and stares at his watch. The prison guard, the jailer,
and the prosecutor can only continue to stare, breathless, at the man's body, the rope
deeply embedded in his neck.
Cardiac arrest!"
Such a single word from the medical officer was a "end of life announcement". However,he still had to remain in this condition for another five minutes. The law demands"certain death”.
After five minutes had elapsed, the prison guards, prompted by the medical officer,
lowered the man's body, removed the ropes around his neck, and stripped him of his
clothes. Immediately the autopsy began.
On his back. Lying down. Prone. The medical examiner checked every inch of the man's
body, while the prosecutor silently stared at him. When it was over, the prosecutor andthe detention center director would leave. The body was clean, but the thick scars on
the neck were still vivid in the prosecutor's mind.
But the prison guards still have work to do. The prison guards were also responsible for
irrigating the man's body, dressing him in white clothes, and placing him in a whitewooden coffin. After all this work was done, the young prison guard placed a few
flowers that he had prepared in advance into the coffin.
Finally, everything was over. The "solemn" but infinitely "depressing" process of
execution was all over.

(Kou-D1, pp. 31-35)
In his book, Aoki describes the reasons for the above description as follows.
The scenes of executions presented at the beginning of this book are "average scenes"of executions reconstructed based on the testimony of many people who have been
involved in executions, including several former detention directors, former prison
guards, and prison chaplains who agreed to be interviewed by us, as well as Ministryof Justice officials and prosecutors.
Of course, all of the accounts have testimonials and factual support, and I could haveenumerated the circumstances of executions that various witnesses were involved in
at different times. I would have had to do so, rather, if it were a manuscript or an article
that would have appeared in the newspapers of the news agencies to which I once
belonged. However, there are several reasons why I dared to take this form ofdescription.
As I spent long hours visiting prison guards and prison chaplains and listening to their
testimonies, the scene of executions gradually crystallized in my mind. As I mentioned
earlier, the anguish and hesitation of those who have no choice but to be directly
involved in the state's work of capital punishment, even if it is carried out as part oftheir duties, stuck deeply in my mind and did not leave my heart.
I wanted to reproduce these images as realistically as possible and present them to thereader in a vivid form. Above all, I wanted to show the anguish and hesitation of those
involved in the executions not as "other people's business," but as our own personal
problems, and I wanted to show them to the readers in the most realistic way possible.
Another former prison guard told us that there was a problem with the floor of theexecution table not opening because the prison guard who was executing the inmate
hesitated to press the execution button. Many prisoners on death row are said to go to
the execution table quietly and without resistance, but there have been cases in which
prisoners have continued to resist the execution by exerting all their strength and going
berserk. A former prison chaplain confided to us that there was a prison guard whoraised his voice in strong protest after the execution, which was so heartless.
There is no way that the execution of a sentence that forcibly takes one life is notgruesome. Again, all those surrounding the "death penalty" stand in hesitation andanguish.
(Kou-D1, pp. 330-332)
3 Place of execution (execution site)(1) Undisclosed location of the place of execution
Article 178, Paragraph 1 of the Penal Detention Facilities Law stipulates that "the death penalty shallbe carried out in a penal institution. In Japan, seven execution sites have been established: Sapporo
Prison, Miyagi Prison, Tokyo Detention Center, Nagoya Detention Center, Osaka Detention Center,
Hiroshima Detention Center, and Fukuoka Detention Center.

In the United States, execution sites are open to the public in states such as South Carolina and North
Carolina. For example, the following is a diagram of the execution site in North Carolina (Kou- C4:
Report of the Japan Federation of Bar Associations on the Problem of the Death Penalty in the UnitedStates).

On the other hand, in Japan, Article 477, Paragraph 2 of the Penal Code stipulates that "only persons
authorized by the public prosecutor or the warden of the penal institution may enter the place ofexecution" at the time of execution. No law prohibits public access to the place of execution except at
the time of execution. However, execution sites have stubbornly remained closed to the public, with
only a few exceptions as indicated in the table below.

1947(Showa 22)

Asahi Graph reporter visits Hiroshima Prison and Nagoya Times reporter
visits Nagoya Prison execution sites.

1951(Showa 26)

1959(Showa 34)

1961(Showa 36)

1967(Showa 42)
1998(Heisei 10)
2003(Heisei 15)
2007(Heisei 19)
2010(Heisei 22)

In the appeal trial of the Supreme Court on April 17, 1958 (a criminal trial
in which lawyers such as Shoetsu Mukoe argued that the hanging penalty
was cruel and unconstitutional), defense counsel, the warden of the
Osaka Detention Center, and two expert witnesses were present toexamine the execution site in the Osaka Detention Center.
In the first trial of the Supreme Court on December 5, 1961 (a lawsuit by
Shigetsu Mukae and others claiming that hanging was cruel andunconstitutional), the execution site in Miyagi Prison was inspected (thewitnesses other than the three judges were unknown).
Sun Doo-hachi, the condemned person himself, filed a lawsuit against
the unconstitutionality of the death penalty, and as verification of thelawsuit, he personally inspected the execution site at the Osaka
Detention Center where he is detained.
Minister of Justice Isaji Tanaka accompanies a newspaper reporter on atour of the newly completed Kosuge Prison (now the Tokyo Detention
Center).
Minister of Justice Shozaburo Nakamura visits the execution site at theTokyo Detention Center.
Minister of Justice Taizo Nozawa visits the new execution site at theTokyo Detention Center with nine members of the House ofRepresentatives Committee on Justice.
Eleven members of the House of Councillors' Legal Affairs Committee
and 13 members of the House of Representatives' Legal Affairs
Committee visited the execution site the following week.
Execution site at Tokyo Detention Center opened to the public at thedirection of Justice Minister Keiko Chiba.

Except for the above limited examples, there is no information about where the execution site is
located in each jail or other facility, what equipment is available for the execution of hangings, whouses it and how exactly the hangings are carried out, how the condemned person dies, how thecondemned person is treated after death, and so on. No information regarding the process of killing is
made public.
The Osaka Detention Center was rebuilt after 2010 (2010), after the second verification by the court
mentioned above. The execution site was reconstructed. Since then, the execution site has never beeninspected.
(2) Tokyo Detention Center's execution site open to the public
August 27, 2010 (Heisei 22), Keiko Chiba On August 27, 2010, at the direction of then Minister ofJustice, the newly reconstructed execution site of the Tokyo Detention Center was opened to thepress. The photos reported in the press are as follows (Kou-C5).

○ Photograph of the execution chamber from the front room (with curtains open).

○ Photographs of the treads (closed).

○ Photograph of the treads (in the open position).

○ Photograph of the execution chamber taken from inside the witness room. (with thetreads closed).

○ Photograph of the execution chamber downstairs from the witness room.

○ Photo of an open tread from the execution room downstairs.
This disclosure was inadequate. The noose was removed at the time of the public presentation, andthe noose itself, which was to be used, was not shown. The entire lower floor was not exposed, and it
was not clear how far the hanged victim would fall when the treads were opened.
(3) Difference between the Dajokan's Proclamation and the actual situation as revealed in thegovernment's response.
A Question by Councillor Mizuho Fukushima and the Government's Response
In response to the August 2010 disclosure of the execution site, a member of the House of Councilors,
Mizuho Fukushima, submitted a written question to the government on October 25, 2010. Ms. Mizuho
Fukushima, asked the government about the difference between the execution site at the Tokyo
Detention Center and a map of the gallows shown in Dajokan Proclamation No 65 of 1873 (Meiji 6).
The following is a copy of the October 25, 2010 Written Opinion of Councilor Fukushima (Kou-B2-1) andhis response to it. B2-1) and then-Prime Minister Naoto Kan's written response (Kou-B2-2) dated
November 2 of the same year (hereafter referred to as the government's response).
Statement of Questions Concerning the Ministry of Justice's Opening of the Tokyo
Detention Center's Penitentiary to the Press
On August 27 of this year, the Ministry of Justice opened the Tokyo Detention Center's
prison to the press. This was the first time that the structure, etc. of the prison was
officially revealed. We would like to ask the following questions regarding the doubtsthat arose as a result of this disclosure and matters that were not subject to disclosure.
(i)

The shape, dimensions, etc. of the publicly disclosed penitentiary clearly
differed from those shown on the full drawing of the gallows, etc. shown in the
Dajokan's Proclamation No. 65 of 1873 ("Proclamation No. 65"). Is thisrecognition correct?

(ii)

According to the full drawing of the strangulation frame shown in the"Proclamation No. 65," the height from the footboard to the ground is 9 shaku(about 2.7 meters). On the other hand, the height from the step to the floor of
the lower floor in the publicly disclosed penitentiary appears to be around 4
meters from the photos reported in the press. What is the exact height of the
public prison?

(iii)

According to the Proclamation No. 65, it is stipulated that the hanged person
shall be "suspended in the air for about a foot off the ground. In other words,
the condemned person is dropped to a height of about 30 centimetres above
the ground and suspended in mid-air. Is the same procedure used in the current
executions at the various penitentiaries?

(iv)

If the current operation of executions at each penal institution is not inaccordance with Decree No. 65, please explain the timing and details of thechange and the reason for the change for each period in which the operation
has been changed.
(v)

In other countries, when executing the death penalty by hanging, the length of
the noose is adjusted according to the weight of the person to be executed,
and the distance from which the person is dropped is changed. This is becausea short fall may cause the victim to suffocate while remaining conscious,
prolonging the time until death, while a long fall may cause the victim's neckto be severed by the impact of the fall. Is the same practice used for executionsin Japan?

(vi)

If such operation as indicated in (v) is carried out in our country, how exactly is
it carried out? If so, how is it done? If so, what kind of table is used? If so, what
is it and how long has it been in operation? If there was a trigger, please explain
it.

(vii)

When the penitentiary was opened to the public this time, the lasso was notshown to the public. Are there any differences in the shape of the noose usedin the Tokyo Detention Center from that stipulated in Proclamation No. 65? If
so, please explain each of these differences in detail.

(viii)In order to stimulate public debate on the death penalty, what kind of study
group will be established under the leadership of Justice Minister Yanagida,and with what kind of members? Also, please indicate your future policy orconcrete plans, such as whether you plan to open the prisons of detention
facilities other than the Tokyo Detention Center to the public.

The government's written response to the Cabinet decision is as follows.
Written answer to the question submitted by Mr. Mizuho Fukushima, a member of theHouse of Councillors, concerning the Ministry of Justice's decision to open the Tokyo
Detention Center to the public (Kou- B2-2)
Regarding question (i)The shape, dimensions, etc., can be different from those of the drawing of a wringing
instrument (Dajokan Proclamation No. 65, 1873).
Regarding question (ii)
The length is approximately 4 meters.
Regarding question (iii) and (iv)
The hanging instruments in each execution site are designed to hang the hanged
person by the dead weight of his/her body on the open-and-fall type treadle, and there
is no difference in the operation of keeping the distance between the hanged person
and the floor from that of the instrument of hanging. However, the distance between
the hanged condemned person and the floor varies with each execution.

Regarding question (v) and (vi)
For each execution, the length of the noose is fixed to the length necessary to ensure
the execution, taking into consideration the height and weight of the condemned
person. There is no chart as requested.
(vii) Regarding the length of the lasso
Regarding question (vii)
The same applies except for the length of the noose. The length of the noose used at
the Tokyo Detention Center is approximately 11 meters.
Regarding question (viii)
The Ministry of Justice has established an internal study group chaired by the Ministerof Justice and composed of the Vice-Ministers of Justice, Parliamentary Secretaries ofJustice, and officials from relevant departments within the Ministry of Justice.
There are no plans to open the prison to the public at this time.

In response to this response, Councilor Fukushima submitted an additional written question dated
January 24, 2011 (Kou-B3-1). -1) dated January 24, 2011. It is as follows.
(i) When and how did the differences between the current operation and the one in
Decree No. 65 arise? For each period when the operation was changed, please
explain the details and the reasons for the change. Also, under what authority andby what administrative rules were the changes implemented? Please explain foreach period in which the change was made.
(ii) According to Proclamation No. 65, it is possible to uniquely determine the fall distanceof the person to be executed. On the other hand, "with respect to the distance between
the hanged condemned person and the floor, it varies with each individual execution."and "With regard to the noose, for each execution, the length of the noose is fixed to thelength necessary to ensure the execution, taking into consideration the height, weight,
etc. of the executed person." The statement in the written answer that "the length of
the rope is fixed for each execution, taking into consideration the height and weight of
the inmate, etc., as well as the length necessary to ensure the execution of the death
penalty. We would like to know the procedure for specifically determining the falldistance for each person to be executed and the method for calculating the fall distance.
(iii) You answered that you currently determine the fall distance using a calculation methodthat differs from the one in the Proclamation No. 65. Please indicate the laws, ordinances,official directives, notices, and any other administrative regulations that form the basis
for this method of determination.

(iv) The length of the noose is fixed to the length necessary to ensure the execution, taking
into consideration the height and weight of the inmate for each execution. The length of
the rope is fixed to the length necessary to ensure the execution of each execution,
taking into consideration the height and weight of the inmate. However, if the death
penalty is to be carried out by strangulation of the neck and asphyxiation, it is consideredsufficient to simply use the method described in the Proclamation No. 65, which is tokeep the condemned person at a certain distance from the floor. For example, does the
distance of the fall take into consideration the possibility of damage to the neck skeletal
nerves and organs of the person to be executed due to the impact of the fall?
(v) Under the leadership of the newly appointed Minister of Justice, Mr. Itsuki Eda, are there
any plans to open six other prisons besides the Tokyo Detention Center to the public?
Please indicate the Minister of Justice's policy and thoughts at this time.
Prime Minister Naoto Kan's response to this additional question on February 1, 2011 (Kou-B3-2) is asfollows.
Regarding additional question (i)As mentioned in the previous written answer (Cabinet Counselor No. 176-61 of
November 2, 2010) regarding 3 and 4, each execution site has a mechanism to hang thecondemned person by the dead weight of his/her body on the open-and-fall type treadle,
and the operation of keeping a distance between the hanged condemned person and thefloor is not different from that of the hanging instrument scheme (the Proclamation No.
65). The operation of the distance between the hanged condemned person and the floor
is not different from that of the strangulation instrument (the Proclamation No. 65), andwe do not believe that the operation was changed.
Regarding additional question (ii) to (iv)
In order to ensure the execution of the death penalty, it is necessary to place a distance
between the hanged condemned person and the floor. Therefore, for each execution, thehanged rope is fixed to the necessary length at the penal institution where the death
penalty is carried out, taking into consideration the height and weight of the condemned
person, and the distance from which the condemned person falls is not determined.
Regarding additional question (v)There are no plans to open the prison to the public at this time.

B What we can learn from the disclosure of the Tokyo Detention Center and the government's
response to the questionnaire
As stated in the February 1, 2011 response, the government's view is that, although there are somedifferences from the strangling instrument shown in the Dajokan Proclamation No. 65 of 1873, there
is no change in the mechanism of strangling by the dead weight of the condemned person's body andin the operation of keeping a distance between the hanged condemned person and the floor.

Even if the government "does not believe" that it has changed the operation, the publicly disclosed
penitentiary and the government's answer above indicate that the current strangulation instrument
at the Tokyo Detention Center differs in many respects from that stipulated in Dajokan Proclamation
No. 65.
The current method of execution is not the rooftop elevated type as stipulated in Dajokan
Proclamation No. 65, but the underground strangulation type, in which the rope is dropped from thefloor of the execution chamber to the basement. In this method, a noose is lowered from the ceilingand placed around the neck of the executed person, and the body is dropped into the basement andsuspended in mid-air when the footboard is removed. The "pull and climb the noose" that was in the
Dajokan Proclamation No. 65 has been eliminated. The height from the step to the ground was 9 shaku(about 2.7 meters), but was now about 4 meters. The "structure to strangle two persons" was changed
to a mechanism to hang only one person, and the length of the rope was changed from 2.5 shaku(approx. 7.6 m) to approx. 11 m. The length of the rope was changed from 2 lengths and 5 shaku (about
7.6 meters) to about 11 meters.
The specific method of execution of hangings carried out by different hanging instruments necessarily
differs from the method stipulated in the Dajokan Proclamation No. 65. It can be inferred that the
specifications of the execution site at the Osaka Detention Center and the specific method of execution
also differ greatly from the instruments and methods stipulated in Dajokan Proclamation No. 65.

4 Problematic nature of non-disclosure of information on the death penalty
Thus, our country has made no attempt to reveal anything about where, how and by what procedure
the executed person is killed. Information on executions has been kept thoroughly secret. The writer
Kaoru Takamura accurately points out this problem in the afterword to the paperback edition ofOsamu Aoki's book 'Death by Hanging' (Kou-D1), cited above, as follows.
Again, almost everything related to the operation of the death penalty is hidden in thiscountry, with the only exception being the opening of the Tokyo Detention Center's
penitentiary to the press in 2010 at the direction of the Minister of Justice. The only
exception was in 2010, when the Tokyo Detention Center was opened to the press atthe direction of the Minister of Justice, but even then there was no rope hanging fromthe neck of the condemned, and although there was a step board, only part of theunderground space where the rope opens and the prisoner falls to the ground was open
to the public. The reality of the death penalty remains shrouded in darkness, as does
the actual process of hanging oneself to death with a noose around one's neck andwhat happens to one's body at that point. This is strange. Nowadays, photographs ofthe bodies of the victims are exposed to the judges for the purpose of jury trials, and if
this is the case, photographs of the deaths must also be made available to those
involved in the sentencing process. If photographs of the actual body are essential foran accurate understanding of the facts of the crime, then photographs of the actual
body must also be essential for an accurate understanding of the death sentence.
However, the fact that almost everything is hidden does not mean that there is no
mystery about the death penalty or its operation. ...There is only the death row inmate
awaiting death, the strict mechanisms and procedures for carrying out the deathpenalty, the people involved, and the corpse...Nowhere is this more obvious than in theworld of the death penalty.
(Kou-D1, pp. 355, 356)
There are two things about the death penalty in this country that need to be exposedin the light of day. One is the reality of the death sentences carried out behind the walls,
and the other is the reality of the individual convicts who are hanged with the noose.
(Kou-D1, p. 359)
Capital punishment is by no means an abstract concept. There is an object called atreadmill, a pulley and a noose, a prisoner on death row with a noose around his neck,a prison guard who presses the execution button, and finally a corpse. In every way, it
is a concrete activity in which human beings terminate human lives by human hands,
and there are sounds and smells. The more one learns about such a place of execution
and death, the more one is confused by the faces, voices, and breaths of thecondemned in the visiting room, and it is natural for human beings to feel confused. It
is natural for a human being to feel confused...to reject the idea of death in concreteterms, simply because it is a human being in front of us. From a perverse point of view,
this is why the site of the death penalty is so carefully concealed. I believe that the
judicial authorities know what would happen if the general public were to witness adeath row inmate or the scene of an execution.
(Kou-D1, pp. 362-363)

III. Hanging - What it means to die by hanging
1 The reality of hanging has been hidden from the public.
The defendant, the State, has so far revealed almost nothing about the reality of hangings. In 2010, As
mentioned above, only a small number of execution sites were shown to parliamentarians and themass media. Even when the Tokyo Detention Center was opened to the public by order of the Ministerof Justice, the Minister of Justice did not even disclose the noose used in the hanging process. In Japan,
the death penalty has generally been kept a thoroughly secret. In particular, the circumstances of theexecution of the hanged, the process that leads to the death of the condemned person, and the pain
and physical damage caused to the condemned person were not made clear at all.
Therefore, in this complaint, the plaintiffs seek to clarify as much as possible from various evidences
the mechanism and process of the death of the condemned person by hanging.

2 What is death by hanging?

Hanging is an execution method in which a noose (rope) is placed around the neck of a prisoner andhe is killed by his own weight. Suicide by hanging appears to be similar in its external form, in which a
suicide victim is killed by the weight of his or her own body after a noose is placed around his or her
neck. However, the method of hanging currently used in Japan - the so-called long-drop method, inwhich the rope is dropped about 4 m at a stretch, and the method of hanging in which the distance ofthe drop is only a few tens of centimeters to 1 m - are different. The mechanism and manner of death
differ greatly.
Dr. Ishibashi, an assistant professor of the Department of Forensic Medicine at Kyushu Imperial
University, described in "Forensic Observation of Death Corpses (1)" and " Forensic Observation of
Death Corpses (2)" (Kou-D2, Journal of Criminology, Vol. 9, Nos. 5 and 6) that the severe neck injuries
seen in "death corpses" were caused by "suicide by hanging" and "non-stationary hanging". The severeneck injury seen in the "death corpse" was caused by the sudden fall of the heavy body at the sametime of hanging, and the force exerted on the neck was much stronger than that of ordinary hanging
death. So, what happens to the human body when a person commits suicide by hanging, which Dr.
Ishibashi used as a comparison for hanging? The following photos are representative of "suicide byhanging.

<Photographs> (Kou-A1)<Photographs> (Kou-A2)<Photographs> (Kou-A4-3)

This photograph, which shows the "death" of a suicide victim by hanging, allows us to roughly imagine
and understand what happens to the body of a hanged person when a more "extremely intense" force
is applied almost instantaneously, only to the neck.

3 Mechanism of Death by Hanging
1 Expert opinion of Dr. Tanemoto Furuhata
In October 1952 (Showa 27), for the first time in a criminal trial in Japan, medical evidence waspresented in the First Criminal Division of the Tokyo High Court of Appeals in a case against Matsushita
Imasatoshi. The evidence was the written opinion of Dr. Taneki Furuhata dated October 27, 1952 (KouD3, hereinafter referred to as the "Furuhata opinion"). Prior to this, there were no cases, including theSupreme Court's 1948 decision and lower courts, in which medical or scientific evidence was examined
as to how the execution of a hanged person causes death.
From a forensic perspective, Dr. Furuhata describes how hangings cause the death of the executed asfollows
Therefore, when a person is suspended by weight with a rope around the neck(suicide), if the person weighs more than 20 kilograms, the left and right carotidarteries and both vertebral arteries can be completely occluded, and the moment theperson's weight acts on the neck, he or she will suffer a loss of consciousness.
Therefore, it has become common knowledge in forensic medicine that routine suicide
is the most painless and easy way to die.
< omission>
I believe that strangulation, when performed in the most ideal way, is superior toother methods in that it does not damage the corpse, does not cause pain to thecondemned (except for mental anguish), and does not leave a sense of cruelty after
death.
According to Furuhata's opinion, hanging is the most painless and easy way to die, with 1)
instantaneous loss of consciousness, 2) no damage to the corpse, 3) the least pain, and 4) no lingering
sense of cruelty after death.
Prior to the Tokyo High Court decision in which the Furuhata opinion was presented, on April 6, 1955,
the Supreme Court, Grand Chamber Judgment, Penal Code, Vol. 9, No. 4, p. 663, stated that "Themethods of execution currently employed in various countries include strangulation, beheading,shooting, electrokilling, and gas killing, etc., and although there is some criticism that each of thesemethods has its merits and demerits when compared with the others, there is no reason to believethat the hanging method currently employed in Japan is particularly cruel to humanity compared withother methods. Although there are some criticisms of the methods of execution currently employedin various countries, there is no reason to believe that the hanging method currently employed in Japanis particularly cruel from a humanitarian standpoint compared to the other methods. However, there
is no evidence that the original trial or the first trial of the same decision examined the mechanism bywhich the execution of a hanged person leads to death. For a long time after that, there has been no
examination of the medical evidence of the execution of a hanged man in Japanese criminal trials.
Nevertheless, the Supreme Court's holding that "there is no reason to believe that the method of
hanging used in Japan is particularly cruel to humanity compared to other methods" has been
uncritically followed. However, it is now clear that the above 1, 2, 3 and 4 judgments of the Furuhata
opinion are all erroneous.

2 Medical explanation of the mechanism of death by hanging(1) Death by hanging
Dr. Walter Lovell ("Dr. Lovell") is a prominent Austrian forensic scientist who has served as Vice
President of the Institute of Forensic Medicine at the Medical University of Innsbruck and President of
the Austrian Society of Forensic Medicine. His work includes many years of research on the effects on
the human body of suicide by hanging and execution by hanging.
In October 2011 (Heisei 23), Dr. Lovell testified at the trial of the so-called "Konohana Pachinko Parlor
Arson Case" (Osaka District Court Decision on October 31, 2011, Kou-C6) in the Osaka District Court
about the mechanism of death by hanging and the time required for death (Kou-D4). His testimony

provided medical and scientific evidence on how the execution of a hanged person leads to death. The
mechanism of death by hanging is as follows.
(1) A condition in which compression of the jugular vein prevents oxygen from reaching thebrain(2) Obstruction of the pharynx, resulting in inability to breathe(3) Head disconnection(4) Vertebral fracture with injury or compression of the medulla oblongata(5) Acute cardiac arrest due to vagus nerve injury(2) Five mechanisms leading to death by hanging
Dr. Lovell describes these five mechanisms leading to death as follows (Kou-D4). 1 to 5 listed in orderof likelihood of actual occurrence.
(1) When oxygen is not supplied to the brain due to compression of the jugular vein
When the body falls and the noose tightens, the jugular vein is compressed and blood flow in the neckarea is stopped. Oxygenated blood is no longer supplied to the brain, and brain cells in a hypoxic state
gradually die, resulting in brain death. Eventually, cardiac death occurs.
(2) When breathing becomes impossible due to obstruction of the pharynx
The airway in the neck area is obstructed by the tightening of the noose caused by the fall of the body,making it impossible to breathe. The lungs are unable to take in oxygen, and although the blood flow
does not stop, oxygen is not supplied to the brain, causing brain cells to gradually die, leading to brain
death, and eventually cardiac death.
(3) When head separation occurs
The impact of the fall causes the head and body to be severed at the neck. There are cases in which
the head and torso are completely detached (total detachment) and cases in which the head and torso
remain partially detached (partial detachment). In partial dissection, only part of the external surfaceof the neck (including the skin) is dissected (partial external dissection), or only the internal tissue isdissected (internal dissection), but not the external surface of the neck (skin). The reason why theinternal tissues of the neck are sometimes severed but the skin remains intact is that of the tissues
that make up the neck (skin, muscles, blood vessels, nerves, etc.), it is the skin that is most resistant totensile forces. Dr. Lovell has confirmed this fact through experiments based on medical specimens.
If a blood vessel, especially an artery, is severed by partial dissection, blood flow to the brain is lostand death occurs by the same mechanism as in 1. If the trachea is severed, the mechanism is the sameas in 2. At the same time, multiple tissues can be severed at the same time, in which case the 12
mechanisms compete. Some forensic scientists believe that a total dissection in an instant (as in a
guillotine execution) leads to immediate death, while others believe that death occurs by the samemechanism as in 1.

(4) When Cervical Fractures Occur with Injury or Compression of the Medulla oblongata
The medulla oblongata is the part of the brain that controls central respiratory and circulatory
functions. It is extremely vulnerable, and damage or compression of the medulla oblongata can resultin cessation of function. In a drop hanging, the neck is the only part of the body that is subjected to
the full weight and acceleration of the fall, which can result in cervical spine fractures. If the medulla
oblongata is damaged or compressed by the impact of the fracture and ceases to function, thecondemned person instantly loses consciousness, breathing and circulation cease, and oxygen cannot
be drawn into the bloodstream, resulting in brain cell death and eventual cardiac death.
(5) When acute heart failure occurs due to vagus nerve injury
Acute heart failure can occur when the vagus nerve is damaged (severed) by the impact of a fall. When
this happens, the heart stops beating, blood cannot go to the brain, and brain cells die. Eventually, theheart cells will also die.

3 Errors in the Furuhata’s Opinion(1) "Instantaneous loss of consciousness" is not "the most painless and easy way to die
According to Dr. Lovell, even if the blood flow in the four blood vessels in the neck could be completely
stopped at the moment the rope strangled the subject after he fell, the subject would remain consciousfor 5 to 8 seconds until the remaining oxygen in the brain was consumed. Therefore, even if themechanism of death is as described in 1 above, the Furuhata opinion that "the person loses
consciousness instantaneously" is incorrect. The subject feels pain until he or she loses consciousness.
If the knot in the rope is shifted to the left or right instead of directly behind the neck, the blood vesselcloser to the knot will be less constricted. The blood flow does not stop completely, and oxygen
continues to be supplied to the brain. During this time, the condemned person remains conscious.
During the execution of a hanging, a rope is placed around the neck of the condemned person byhuman hands, not by a machine. Therefore, it is possible that the ropes are not applied symmetrically(Kou-D5, p. 24 of Tsuchimoto's interrogation). In this case, the subject continues to feel pain for alonger period of time before losing consciousness.
When the subject is unable to breathe due to obstruction of the pharynx (2), it takes a long time before
the subject loses consciousness. A normal person can remain conscious for 1 to 2 minutes, and aperson who has been trained to hold his breath can remain conscious for 5 minutes. If the mechanismof death is 2, the subject will not lose consciousness instantly, but will remain conscious for about 5
minutes, depending on the person, during which time he or she will feel pain.
The case of head disconnection (3) does not always result in instantaneous loss of consciousness. As
mentioned above, there is no academic consensus on whether or not a head disconnection causes
instantaneous loss of consciousness. Whether or not a person loses consciousness depends on the
degree of brain damage, but if the separation is not instantaneous or incomplete, the person may
remain conscious as long as oxygen is supplied to the brain. During this time, the patient will feel pain.

In the case of a cervical fracture with injury or compression of the medulla oblongata (4), loss of
consciousness may or may not occur almost instantaneously. If the spinal cord injury occurs high up in
the body, close to the medulla oblongata, the loss of consciousness may be immediate. However, if
the spinal cord injury occurs in the lower part of the body, general paralysis occurs, but consciousness
is not lost immediately. Instantaneous loss of consciousness due to destruction of the medulla
oblongata is extremely rare.
The case of acute heart failure due to vagus nerve injury (5) does not result in instantaneous loss of
consciousness, but rather the patient remains conscious for approximately 10 to 12 seconds.
Stimulation of the vagus nerve that causes immediate cardiac arrest occurs only rarely. Therefore,
most cases of acute heart failure due to vagus nerve injury do not result in instantaneous loss of
consciousness, but rather in a period of distress.

(2) Significant damage to the corpse
3. Head dismemberment causes significant damage to the corpse. Even if the head is not dismembered,
the neck of the executed person is severely damaged by hanging.
In 1935, Dr. Ishibashi summarized and reported on autopsy cases of corpses after hanging in "Forensic
Observations of Corpses on Death Row (1) (2)" (A.D.2). The Department of Forensic Medicine of Kyushu
University School of Medicine dissected more than two dozen bodies executed by hanging. 1926 fire
destroyed most of the specimens and records of the department. Dr. Ishibashi collected 11 cases
whose records were preserved and 3 cases whose records were lost but whose preserved specimens
showed changes in the cervical region.
Dr. Ishibashi found that the cervical organs of the executed corpse were different from those ofordinary hanging deaths, and were extensively torn, with fractures of the carapace cartilage and its
upper horn, fractures of the greater hyoid bone, intramuscular separation and bleeding, lacerations ortears of the carotid artery lining, fractures of the cervical spine, etc." Dr. Ishibashi continued, as
previously cited, "These changes were caused by the sudden fall of the heavy body at the same timeas the strangulation, and the force acting on the neck was much more intense than in ordinary hanging
deaths.” The reports of all 14 cases are as described in Kou-D2, and the findings in the neck of Cases
7 and 9 are quoted below.

In case 7 (27-year-old male, height 164 cm, weight 51 kg)
the cervical organs were completely dissected subcutaneously, the sternohyoid, hyoid,and median hyoid ligaments were all dissected vertically, and the larynx was also
divided vertically below the epiglottis, creating a cavity measuring 6.0 cm in diameterfrom left to right and 2.5 cm from top to bottom. The upper end of the thyroid cartilage
is separated from the larynx by the laryngeal ligament. The upper end of the thyroid
cartilage was exposed, the superior horn of the thyroid cartilage and the greater hornof the hyoid bone were both fractured and crushed from the base, and there washemorrhage between the surrounding tissues. At this level, there were severaltransverse lacerations measuring 0.2 cm and 0.5 cm in length on the internal carotidartery on both sides, and a pigeon egg sized interstitium between the retropharyngeal
collaterals.
In case 9 (53-year-old male, height 158 cm, weight 45.1 kg)
Cervical organs and tongue were pale with tooth marks. Cervical organs were almost
completely ruptured with subcutaneous tissue remaining above the thyroid cartilage,
and the sternohyoid, scapulohyoid, hyoid, and medial hyoid muscles were separated.
The thyroid cartilage is broken down from the upper incision scar, forming a cavity witha diameter of 6.0 cm on the left and right, 2.5 cm vertically and horizontally, and 4.0
cm anteriorly and posteriorly. There was an intermuscular hemorrhage about the sizeof a fingernail above the sternocleidomastoid muscle on both sides, and an interstitial
blood clot about the size of a fist between the posterior pharyngeal condyles.

These autopsy findings show that the neck organs were ruptured and the neck muscles were severed,although the neck skin was still connected. The above are autopsy photographs of the cervical regionof a person who was hanged, but there are no autopsy photographs of a corpse by hanging. The
autopsy photographs in the case of hanging are shown in Kou-A4-1. A representative sample is shown
here.

A4-1

It is obvious from this photo that the muscles in the neck have been cut.

4 The mechanism leading to death is not predictable.
The mechanism of death by hanging is as described in (2) a. 1-5 above. It is important to note that themechanism of death by hanging cannot be selected in advance, nor can it be predicted. There are too
many variables that can affect the outcome, such as the weight of the condemned person, the lengthof the rope, the material and elasticity of the rope, the number of times it is used, the position of theknot in the rope, the size of the condemned person's neck, the strength of the internal tissues, muscle
mass, and other physical characteristics. Therefore, no one knows what kind of pain will be caused tothe executor until the actual execution is over. The executor himself will know, but the deceased
executor will not be able to tell.
What is certain is that the Furuhata’s Opinion that hanging is the most painless and easy way to die,with instantaneous loss of consciousness, no damage to the corpse, and no lingering sense of cruelty
after death, is medically incorrect.

IV. Death Penalty and International Human Rights Law
1 Why International Human Rights?
1 The Purpose of this Petition and International Human Rights
This appeal shows that hanging as practiced in Japan constitutes "cruel, inhuman or degrading
treatment or punishment" in violation of Article 7 of the Covenant on Civil Liberties, and that execution
in violation of Article 7 constitutes "arbitrary deprivation of life" and a violation of Article 6(1) of theCovenant.
The court may think that the guarantee of human rights under Japan's domestic law is sufficient andthat there is no need to bring up international human rights law, or that the court has the power tointerpret domestic law and can therefore interpret human rights treaties on its own. First, we review
why the concept of international human rights came into being. Then, the domestic validity andjudicial normativity of the Covenant on Civil Liberties will be explained in detail.

2 The Need for International Human Rights Law
The concept of international human rights was born out of a painful reflection on World War II. Prior
to World War II, human rights were a domestic (internal) affair of a sovereign state, and interferenceby another state in human rights violations within that state was not permitted as interference ininternal affairs.
However, the totalitarian state that caused the unparalleled tragedy of World War II, a war that
disregarded individual human rights, and the Holocaust (massacre of Jews) that occurred in Germany

during the war brought about a turning point in this thinking. In particular, the fact that the Jewish
Holocaust was carried out legally under the Weimar Constitution, which was said to have the mostextensive human rights provisions at the time, and the fact that countries were aware that thepersecution of Jews had begun but continued to ignore it as a domestic problem had a major impact
on the birth of the international human rights concept.
The fact that the Jews were persecuted as a domestic issue, even though they were aware of it, greatly
influenced the birth of the international human rights concept.
Thus, from the painful reflection on the sacrifices made during World War II, the lesson that humanrights and peace are inseparable and that in order to truly protect peace, human rights must notremain a domestic issue but must be protected internationally was shared by each nation.
The painful reflections on the sacrifices made during World War II led each country to share the lesson
that human rights and peace are inseparable, and that to truly protect peace, human rights must notremain a domestic issue, but must be protected internationally. The United Nations, established afterWorld War II, made human rights a matter of international concern by setting the securing of humanrights as a goal and enshrining it in the UN Charter.
It is important to note here that international human rights were born out of the realization thathuman rights cannot be guaranteed by relying on national laws, and the need for international
monitoring of the human rights situation in each country in order to effectively ensure human rights,
and have functioned based on this principle to this day.

3 Birth of the Covenant on Civil Liberties
In 1948 (Showa 23), the United Nations adopted the Universal Declaration of Human Rights as acommon standard of achievement for all peoples and all nations. In 1966 (Showa 41), the International
Covenant on Economic, Social and Cultural Rights (hereinafter referred to as the "Covenant on Social
Rights ") and the Covenant on Civil Liberties were adopted in order to legally obligate states to ensure
human rights. These two international human rights covenants entered into force in Japan on
September 21, 1979 (Article 49(2) of the Covenant on Civil Liberties, Article 27(2) of the Covenant on
Social Rights, and Article 24(1) of the Convention on the Law of Treaties).
International human rights treaties are the most important international human rights instruments atthe core of international human rights law, and together with the Universal Declaration of Human
Rights form part of the Universal Bill of Human Rights. In particular, the Universal Declaration of Human
Rights was a "declaration," while international human rights covenants are enacted as "legal norms"
with legal force. In other words, the Covenant on Civil Liberties is binding on States Parties as a legalnorm.
2 Interpretation of the Covenant on Civil Liberties
1 The Committee on the Covenant on Civil Liberties is responsible for the interpretation andclarification of the Covenant.

If the operation and interpretation of the Covenant on Civil Liberties were left to individual states after
its entry into force, the purpose of making human rights an international concern and guaranteeing
them internationally would be lost. Therefore, the Covenant established three systems as means of
ensuring implementation: 1) the national reporting system (Articles 41 and 42 of the Covenant), 2) the
individual reporting system (Optional Protocol I), and 3) the review of government reports (Article 40of the Covenant). Furthermore, the Committee on Civil Liberties was established as theimplementation mechanism of the Covenant, and was charged with monitoring the implementationof the Covenant and clarifying its contents (Article 40 of the Covenant).
The Covenant Committee monitors the implementation of the Covenant and clarifies the content of
the Covenant, by deliberating on government reports submitted by each State Party through dialogue
with the government, issuing summary findings, examining individual communications and issuing
Views, and adopting interpretive guidelines for the Covenant called "General Comments" (Article 40(4)of the Covenant). The Committee monitors the implementation of the Covenant and clarifies its
content by issuing "General Comments" (Article 40(4) of the Covenant). In the last 10 years from 2009
to 2019, the Committee received 1,245 individual reports and adopted 1178 opinions (as of January2020) to interpret the Covenant. In addition, through the accumulation of cases of the individual
reporting system, the Committee has issued and revised general opinions that provide guidelines forinterpreting the articles.

2 Importance of the Committee's Interpretation of the Covenant
The Covenant Committee, as the implementing mechanism of the Covenant, has interpreted theCovenant through the publication of summary findings, the adoption of opinions in individual reportingcases, and so on. The Covenant Committee's adopted opinions "exhibit some important characteristics
of judicial decisions.
These views were reached in a judicial spirit, including the impartiality and independence of theCommissioners, the thoughtful interpretation of the text of the Statute and the definitive character of
their decisions" (Kou-E3: General Comment 33, para. 11).
The General Comments adopted by the Committee on Civil Liberties provide guidance on theinterpretation of the Covenant through the review of government reports and the accumulation of
thousands of cases of individual reporting over the years. The General Comments issued on the basisof the Summary Findings and Opinions have thus served as the most authoritative and importantinterpretive guide to the Covenant (Kou-E4, p. 20; A5, p. 697). This is also true for the International
Court of Justice (ICJ), which, in its advisory opinion on the Palestine Wall, referred to the CovenantCommittee's interpretation of the Covenant as "well-established practice" and cited its summary
findings on Israel, and for the Diallo case, which stated that the Committee had built up its
interpretation of the Covenant, particularly through its individual reporting system and general
opinions. It is also clear from the fact that, in the Diallo case judgment, the Committee cited the views
and general comments adopted by the Commission, stating that it "believes that great weight should
be given to the interpretations adopted by this independent body specifically established to supervise
the application of the Covenant", given that the Commission has built up its interpretations of theCovenant, in particular through the individual reporting system and general comments (Kou-E5, p. 693
and Kou-5, p. 693).
The observations and general comments of the Covenant Committee are, so to speak, normative
guidelines common to all parties and are treated as the main authoritative documents in theinterpretation of the Covenant. It is hoped that through the uniform application of the interpretationof the Covenant, the international guarantee of human rights will be realized. Thus, the "General
Comments" and "Views" of the Covenant Committee are the basis for the interpretation of theCovenant.

3 International Human Rights Law Norms on the Execution of the Death Penalty
1 Provisions of the Covenant on Civil Liberties
The Covenant on Civil Liberties is a treaty adopted by the UN General Assembly on December 16, 1966and entered into force on March 23, 1976. Japan ratified the Covenant on June 21, 1979, and theCovenant entered into force on September 21 of the same year. The Covenant on Civil Liberties
provides as follows.
Article 6 of the covenant on freedom of association
Article 6
1. Every human being has the inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.

Article 7 of the Covenant on Civil Liberties
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
In particular, no one shall be subjected without his free consent to medical or scientificexperimentation.
The Covenant on Civil Liberties, as quoted above, guarantees every human being the right to life,
prohibits arbitrary deprivation of life, and absolutely prohibits "cruel, inhuman or degrading treatment
or punishment. Cruel punishment or treatment in violation of Article 7 immediately also constitutes'arbitrary deprivation of life' prohibited by Article 6.
The Committee on Civil Liberties, which is responsible for interpreting the Covenant and clarifying its
content, has established the criteria for "cruel, inhuman or degrading treatment or punishment" if it is
not carried out "in a manner that causes as little physical and mental suffering as possible" through its
review of general comments and individual reporting cases, as described in IV-2 to 6.

In all UN human rights bodies, including the Committee against Torture, the implementing body of theConvention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as wellas the UN Human Rights Council, the interpretation of Article 7 of the Covenant on Civil Liberties asgiven by the Committee on Civil Liberties is assumed.

2 Right to life/prohibition of arbitrary deprivation of life
Article 6(1) of the Covenant guarantees the "right to life," requires States Parties to establish the legal
framework necessary to ensure the enjoyment of the right to life, and prohibits arbitrary deprivationof life.
This 'right to life' derives from human dignity (preamble to the Covenant on Civil Liberties) and is thebasis of all human rights, and is the ultimate human right without which the guarantee of other rights
would have no meaning.
Therefore, Article 6 of the Covenant is set forth at the beginning of Part III of the Covenant, which sets
forth substantive rights. In its General Comment 1, which serves as a guideline for interpretation of theCovenant, the Committee on Civil Liberties has clarified that the right to life, as defined in Article 6 of
the Covenant, is "the supreme right of the human being" whose effective protection is "a precondition
for the enjoyment of all other human rights. (Kou-E1: General Comment 6, para. 1; Kou-E2: General
Comment 36, para. 2). Article 4 of the Covenant permits a certain degree of restriction of human rights"in cases of public emergency threatening the survival of the people," but the human rights stipulated
in Article 6 of the Covenant are non-derogable rights, even under emergency conditions (Article 4(2)).

3 Strict Limitations on the State's Authority to Apply and Execute the Death Penalty(1) Direction to Abolish the Death Penalty
The Covenant on Civil Liberties, adopted in 1966, does not include a provision obligating States Parties
to abolish the death penalty, but later, from the perspective of guaranteeing the right to life, theSecond Optional Protocol to the Covenant (commonly referred to as the "Convention to Abolish the
Death Penalty") was adopted in December 1989 at the 44th UN General Assembly (to which Japan is
not a party). The Convention states at the outset that "Convinced that the abolition of the death

1

The Committee on Civil Liberties, which oversees the implementation of the Covenant, accumulates
and develops interpretative jurisprudence of the Covenant through the adoption of "Views" inindividual communications as a means of ensuring implementation, "Concluding observations" in theexamination of government reports to monitor the implementation of the Covenant by each State
Party, and other means. The General Comment is an official document adopted by the CovenantCommittee that summarizes the interpretive jurisprudence of the Covenant and serves as an important
guide to the interpretation of the Covenant. The General Comment is an official document adopted by
the Covenant Committee that summarizes the interpretive jurisprudence and serves as an important
guide for the interpretation of the Covenant.
40

penalty will contribute to the advancement of human dignity and the progressive development of
human rights, ... (Convinced that all measures to abolish the death penalty should be regarded asprogress in the enjoyment of the right to life, and desiring hereby to make an international
commitment to abolish the death penalty," the Convention opens by stating that it is "convinced thatthe abolition of the death penalty will contribute to the enhancement of human dignity and theprogressive development of human rights, noting that Article 6 of the [Covenant on Civil Liberties]
mentions it in language that strongly suggests that its abolition is desirable. It is stated that States
Parties to the Covenant that have abolished the death penalty by ratifying the Second Optional
Protocol or otherwise are prohibited from reintroducing the death penalty and are not permitted todiscard the Second Optional Protocol (Kou-E2: General Comment 36, para. 34).
In reality, there are states (including Japan) that have ratified the Covenant on Civil Liberties but have
not ratified the Optional Protocol II to the Covenant and have in fact established the death penalty.
Article 6(1) of the Covenant prohibits "arbitrary deprivation of life," and if there is a "non-arbitrary"
deprivation of life, it would appear that the death penalty is permissible, albeit under strict
requirements. However, according to the Committee on Civil Liberties, "the death penalty cannot bereconciled with full respect for the right to life, and its abolition is desirable and necessary for theextension of human dignity and the progressive development of human rights" (Kou-E2: General
Comment 36, para. 50).
Therefore, while Article 6 of the Covenant permits "non-arbitrary" deprivation of life in paragraph 1, it
also states in paragraph 6 that "nothing in this Article shall be used by any State Party to the present
Covenant to delay or hinder the abolition of the death penalty," making it clear that the Covenant does
not actively endorse the death penalty, but rather that "States Parties who have not yet completely
abolished the death penalty are in a position to take the path which cannot be retraced towards thecomplete abolition of the death penalty in fact and in law in the foreseeable future". (Kou-E 2: General
Comment 36, para. 50) On November 17, 2020, the UN General Assembly's Third Committee adopted
a resolution calling for a moratorium on executions.
Based on the premise that the importance of the right to life necessitates the abolition of the death
penalty, Article 6 of the Covenant imposes strict restrictions on states parties that currently have thedeath penalty, as described below, and requires that the deprivation of life (execution) by the state"shall be carried out only in very exceptional cases”.

(2) Strict Limitations on the Application of the Death Penalty and Execution Authority
A. Article 6 of the Covenant on Civil Liberties in its entirety
The death penalty is a deprivation of life by the state. Therefore, while the Covenant does not obligate
States Parties to abolish the death penalty, it imposes strict limits on the application of the death
penalty and on the power of execution in countries where the death penalty exists (Article 6 of theCovenant).
Article 6(1) of the Covenant on Civil Liberties states that the "right to life" is the ultimate human right,
the basis of all human rights, and that its effective protection is the "supreme right of human existence"41

on which the enjoyment of all other human rights is based. The death penalty, which deprives a personof that right, is understood to be a last resort after other alternatives have been exhausted or deemed
inadequate, and the application and execution of the death penalty in countries where the death
penalty exists "must be interpreted as narrowly as possible" (Kou-E2: General Comment 36, paras. 12
and 33).
B. Artile 6(2) of the Covenant on Civil Liberties
Article 6, paragraph 2, of the Covenant on Civil Liberties states that the penalty can be imposed "onlyfor the most serious crimes" and can be enforced only by "a final judgment rendered by a competentcourt" "by a law in force at the time the crime was committed and not in conflict with the provisionsof this Covenant and the Convention on the Prevention and Punishment of Crimes of Killing in Relation
to Mass Killing.
The inherent incompatibility of the application of the death penalty in a statute guaranteeing the rightto life requires that the requirements set forth in paragraph 2 be interpreted narrowly (Kou-E2:
General Comment 36, paras. 33 and 35).
C. Article 6(4) of the Covenant on Civil Liberties
Article 6(4) of the Covenant guarantees the right to seek a special pardon or commutation of sentence
for those who have been sentenced to death. The Covenant also guarantees the human right to avoid
execution to the maximum extent possible.
D. Article 6(5) of the Covenant on Civil Liberties
Article 6(5) of the Covenant prohibits the imposition of the death penalty for crimes committed bypersons under 18 years of age and the execution of the death penalty on pregnant women.

E. Prohibition of "arbitrary" application or execution of the death penalty
Article 6(1) of the Covenant prohibits "arbitrary deprivation of life". Article 6(1) of the Covenant,which states that execution is a "deprivation of life" by the state and must not be carried out"arbitrarily," is, along with Article 6(2), (4) and (5), a restriction on the right of States Parties to carryout executions.
The concept of "arbitrarily" has a very broad meaning, as follows:2(1) Violation of national law is "arbitrary

2

The Committee on Civil Liberties has stated that "deprivation of life is in principle arbitrary if it iscontrary to international or national law. Even if the deprivation of life is provided for by national law,
it can still be arbitrary. The concept of 'arbitrary' is not entirely synonymous with 'contrary to law' andmust be interpreted more broadly to include elements such as unfairness, injustice, lack offoreseeability and lack of due process, as well as rationality, necessity and proportionality. (A-E2:
General Opinion 36, para. 12).
42

Deprivation of life" that has no legal basis or is incompatible with other life-protecting laws andprocedures is in principle "arbitrary".
For example, a death sentence issued after proceedings in violation of the Code of Criminal Procedure
is illegal and arbitrary (Kou-E2: General Comment 36, para. 11). The execution of a person whose guilt
has not been proven beyond a reasonable doubt also constitutes an arbitrary deprivation of life (KouE2: General Comment 36, para. 43).
(2) Violation of International Law is "Arbitrary
Deprivation of life" is in principle "arbitrary" if it is incompatible with international or national law, andtherefore it can be "arbitrary" in violation of international law even if it is in accordance with nationallaw (Kou-E2: General Comment 36, para. 12).
For example, Article 7 of the Covenant on Civil Liberties prohibits "torture or cruel, inhuman ordegrading treatment or punishment," and specific executions may violate Article 7. Failure to notify
the date of execution is understood to be a violation of Article 7 of the Covenant, even if it is not a
violation of Japan's domestic law. An execution in violation of Article 7 of the Covenant necessarily
constitutes "arbitrary deprivation of life" and is also in violation of Article 6 of the Covenant (Kou-E2:
General Comment 36, para. 40). Imposing the death penalty through a trial that does not meet thedue process requirements of Article 14 of the Covenant would also be a violation of Article 14 andArticle 6 of the Covenant.
(3) Violations of due process, such as impropriety and unfairness, are also "arbitrary.
Furthermore, the concept of arbitrariness must be interpreted broadly to include not only violationsof national and international law, but also impropriety, injustice, predictability and lack of due processelements of law, as well as elements of reasonableness, necessity and proportionality. Deprivation oflife," including the death penalty, must not be the last resort after other alternatives have been
exhausted or deemed inadequate (Kou-E2: General Comment 36, para. 12).

4 Prohibition of cruel, inhuman or degrading treatment or punishment
The prohibition of torture or cruel, inhuman or degrading treatment or punishment was first addressedby the United Nations in the Universal Declaration of Human Rights in 1948, based on its reflection on
torture and cruel treatment before and during World War II, and was then incorporated into theEuropean Convention on Human Rights (entered into force in 1953) and the Covenant on Civil Liberties(1976).
Furthermore, in the face of the wanton and harsh repression of people by military dictatorships insome countries in the 1970s, on December 9, 1975, the UN General Assembly adopted the "Declarationon the Protection of All Persons from Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. The Declaration considers any of these acts to be a "crime against human dignity" (Article
2). Subsequently, on December 10, 1984, the UN General Assembly adopted the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The "torture and other43

cruel, inhuman or degrading treatment or punishment" prohibited by these conventions originated in
Article 5 of the Universal Declaration of Human Rights, which is almost identical in text and meaning.

And like Article 6 of the Covenant, which guarantees the right to life, Article 7 of the Covenantguarantees the non-derogable right to life to all human beings, even in emergency situations.
The right guaranteed by Article 7 of the Covenant is a non-derogable right guaranteed to all humanbeings and cannot be restricted even in emergency situations (Article 4(2) of the Covenant). Therefore,
any "cruel, inhuman or degrading punishment" would immediately constitute a violation of Article 7of the Covenant without waiting for a weighing of competing interests.

4 The Covenant on Civil Liberties as a Legal Norm and Binding on Japan
1 Ratification (Acceptance) of the Covenant and Binding on the StateA treaty is accepted by its signatory states by agreeing to be bound by it (ratification). The ratification
process of a treaty requires the approval of the Parliament (legislature) (Article 73, Item 3 of theConstitution). The review and approval of treaties by the Parliament, which is composed ofrepresentatives of the people, guarantees the democratic legitimacy of treaties domestically as well.
There are treaties that set forth the rules of international law regarding treaties, including theirformation, validity, and methods of interpretation. The Vienna Convention on the Law of Treaties(hereinafter referred to as the "Vienna Convention").
The Preamble to the Vienna Convention affirms the principle that "agreements must be honored" asa universal fundamental principle, along with the principles of free and voluntary consent and goodfaith. This principle is an axiom of international law (Kou-E6, pp. 304-305).
Treaties that have entered into force are binding on the Parties in accordance with such basic principles,
and the Parties are obliged to implement them in good faith (Article 26 of the Vienna Convention).
Moreover, the domestic law of a State may not be used as a basis for avoiding treaty obligations (Article
27 of the Vienna Convention: Kou-E7: General Opinion 31, Paragraph 4). This is well established ininternational precedents, and the Permanent Court of International Justice (PCIJ) has stated that "it iscertain that one cannot rely on one's own legislation to limit the scope of international obligations"(Kou-E6, p. 305).

2 State Binding Nature of the Covenant on Civil Liberties
Since the Covenant on Civil Liberties was ratified by the Parliament, Japan, as a party to the Covenant,must abide by the rights and obligations stated in the Covenant (Preamble to the Articles of theCovenant, Article 26).

44

Article 2(1) of the Covenant establishes that States Parties to the Covenant are obligated to "respectand ensure to all individuals within their territories" the rights set forth in the Covenant. In other words,
States Parties to the Covenant have a legal obligation to ensure the realization of all human rights
stipulated in the Covenant as soon as they become States Parties to the Covenant. This obligation mustbe fulfilled in good faith in accordance with the principles of Article 26 of the Covenant (Kou-E7:
General Comment 31, para. 3).
The obligation to fulfill the obligations under the Covenant is not limited to the central government.
The obligations of the Covenant are binding on States Parties as a whole (Article 2 in particular). Thatis, they are binding not only on the executive, but also on all public authorities, including the legislative,
judicial and local authorities (Kou-E7: General Comment 31, para. 4). The courts are no exception.
Given the aforementioned system for ensuring the international implementation of the Covenant and
the Japanese government's acceptance of that system, the interpretation of the Covenant must be
based on international standards (the interpretation given by the Committee on Civil Liberties). It is
not permissible for Japanese courts to ignore this and interpret the Covenant on their own.

3 The Covenant on Civil Liberties as Domestic Law in Japan(1) Domestic Effect of the Covenant on Civil Liberties
Since Japan has ratified the Covenant on Civil Liberties, it is naturally bound by the Covenant as a state.
However, the incorporation of treaties concluded by the government into domestic law is left to theconstitutional provisions of each country.
In Japan, all substantive treaties require the approval of the Diet (Article 73, Item 3 of the Constitution),treaties that have been approved are automatically promulgated by the Emperor (Article 7, Item 1 of
the Constitution), and the Constitution stipulates the obligation to comply with treaties andestablished international laws (Article 98, Paragraph 2 of the Constitution). Therefore, treaties are, in
principle, accepted as domestic laws and have domestic legal effect immediately upon promulgation,
without the need for special legislative measures (general acceptance method).

Therefore, the Covenant on Civil Liberties has domestic legal effect from the day it enters into force ina country after ratification. In contrast, the Covenant on Social Rights, like the right to social security
benefits, requires budgetary measures and a legal basis for the realization of rights, and is interpreted
as stipulating the obligation of the state to make best efforts to realize rights rather than granting
specific rights to individuals (so-called "progressive implementation").

(2) Domestic Legal Status of the Covenant on Civil Liberties
The status of a treaty as a matter of domestic law basically depends on the position of the treaty andinternational law in the constitutions of each country. In the case of Japan, Article 98, Paragraph 2 of
the Constitution stipulates that "treaties and established international laws shall be observed in goodfaith," which is interpreted to place treaties above general laws.
45This is the prevailing view in constitutional law and the view of the Japanese government. This would
logically mean that any domestic law below a law in violation of a treaty must be invalid or repealed.

(3) Judicial Normativity of the Covenant on Civil Liberties
Even if a treaty has domestic legal effect, whether it is directly applicable or not, or whether it can beapplied (realized) only after legislative or other measures are required, is discussed as an issue of direct
applicability of the treaty (the phrases "automatic enforceability" or "self-executing" of a treaty aresometimes used with almost the same meaning as "direct applicability"). (In addition, the terms"automatic enforceability" and "self-executing" of a treaty are sometimes used with almost the same
meaning as "direct applicability.)
The Covenant on Civil Liberties is directly applicable and has judicial normative character, with the
exception of provisions such as Article 20(2) of the Covenant ("Impulses of national, racial or religious
hatred which constitute incitement to discrimination, hostility or violence shall be prohibited by law"),
which seem to impose an obligation on the legislature to enact laws (Kou-E8, p. 2), because the text
itself regards individuals as the subject of rights.
Based on Article 40 of the Covenant, the Government of Japan also acknowledged the superiority of
the Covenant over domestic laws and the direct applicability of the Covenant in the First Report ofJapan submitted to the Committee on Civil Liberties on October 24, 1980, and in the reply by the
representative of the Government at the Committee's examination at its 12th session (Kou-E8, page2).

In Japan, treaties are not transformed into ordinary domestic law. In practice, however, treaties havegenerally been interpreted as forming part of the Japanese legal system and have been given
corresponding force and effect. In other words, the administrative and judicial authorities havecomplied with and ensured compliance with the provisions of the Convention. Treaties are understoodto have a higher status than national laws. This means that any domestic law found by a court to beinconsistent with the Convention must be nullified or amended. This would be very troublesome, so
the government and the Diet would carefully examine in detail the treaties that are subject to
ratification to ensure that there is no discrepancy between these treaties and existing domestic laws
(A-E 9, p. 86).

(4) Direct applicability and superiority over law have been recognized in judicial decisions
The direct applicability of the Covenant on Civil Liberties and its superiority over law have beenrecognized in numerous court cases.
A. Court decisions directly applying the Covenant on Civil Liberties and finding it superior to the law

46

As cases in which the Covenant on Civil Liberties was directly applied and recognized the overriding
effect of the law, the courts in the case of the State Claim for Compensation for Interference with
Prisoners and the case of the Refusal to Seize Fingerprints held as follows.

Case of Claim for State Compensation for Obstruction of Access to Prisoners(Takamatsu High Court, November 25, 1997 (Heisei 9), HANREI JIHO No. 1653, p. 117;
Tokushima District Court, March 15, 1996, HANREI JIHO No. 1597, p. 115; HANREI TA
No. 997, p. 65)“Article 98, paragraph 2 of the Constitution stipulates that "treaties concluded by theState of Japan and established international laws and regulations shall be faithfully
observed," which is understood to mean that in Japan, treaties are accepted as a formof national law upon ratification and promulgation and are applied to domestic legal
relations without waiting for special legislative measures, and that treaties havesuperior effect to general laws. It is understood to provide that treaties havesupremacy over general laws. However, not all of the treaties that Japan has concluded
have this effect, and in cases where the treaties are merely declarations of generalprinciples or political obligations that Japan has concluded, legislative measures to give
concrete form to such principles or obligations are naturally necessary. The Covenant
B is based on the fundamental right to liberty and the idea that such right should beenjoyed by all members of human society, and the form of the Covenant, whichguarantees such right to individuals as subjects, cannot be understood as merely adeclaration of abstract and general principles, and should therefore have direct effectas domestic law and superior force to law.”

Case of refusal of fingerprinting (Osaka High Court, October 28, 1994 (Heisei 6)
judgment, HANREI JIHO No. 1513, p. 17)“(The provisions of the Covenant are,) in principle, self-executing and directly
applicable domestically, which means that domestic laws in conflict with the Covenant
are denied their effect.”
B. Supreme Court cases that referred to and supported the Covenant on Civil Liberties and foundviolations of laws and regulations.
The following cases are examples of cases in which the Supreme Court may have relied on international
human rights law, including the Covenant on Civil Liberties, in reaching its unconstitutional decision.
Article 3 of the Nationality Law is unconstitutional (Supreme Court, June 4, 2008, Judgment,
Civil Law Review Vol. 62, No. 6, p. 1367)“... In other countries, it can be seen that the legal discriminatory treatment ofillegitimate children is being eliminated, and the International Covenant on Civil andPolitical Rights and the Convention on the Rights of the Child, both of which Japan has
ratified, contain provisions to the effect that a child shall not be subject to any
discrimination on the basis of birth. Furthermore, after the establishment of theprovision of Article 3, Paragraph 1 of the Nationality Law, many countries that had madethe illegitimate child of a father who is a citizen of his own country a requirement for47

acquiring nationality through paternity have amended their laws to allow a child toacquire his/her nationality only when paternity is established through acknowledgment,
etc. In light of the above changes in the domestic and international social environment
surrounding Japan, it has become difficult to find a rational connection between theabove-mentioned legislative purpose and the requirement of acquiring Japanesenationality through notification after birth.”

In the above decision of the Supreme Court, the Court noted that the Covenant on Civil Liberties andthe Convention on the Rights of the Child contain a provision that states that a child shall not be subject
to any discrimination based on his or her birth, and also took into consideration the trends of legislative
amendments in other countries.
Unconstitutional judgement on succession of child (born) outside of marriage (Supreme
Court, September 4, 1925 (Heisei 25) Civil Law Review 67, Vol. 6, No. 1“These treaties (the Covenant on Civil Liberties and the Convention on the Rights of theChild) provide that a child shall not be subject to any discrimination based on birth. In
addition, the Committee on Civil Liberties, based on the former Convention, and theCommittee on the Rights of the Child, based on the latter Convention, have been
established as related organizations of the United Nations, and these committees areauthorized to express opinions and make recommendations to the State Parties on theimplementation status, etc. of the above conventions.
With regard to the implementation of the above conventions regarding children bornout of wedlock in Japan, the Committee on Civil Liberties recommended the removal of
discriminatory provisions regarding children born out of wedlock in a comprehensive
manner in 1993, and since then, the above committees have repeatedly expressed theirconcerns and recommended amendments to the law, specifically regarding
discriminatory provisions in nationality, family register, and inheritance, including thisprovision. The above-mentioned committees have repeatedly expressed their concerns
and made recommendations for amendments to the law. Recently, in 2010, theCommittee on the Rights of the Child reiterated its concern about the existence of theprovision in question.”In this case, the Supreme Court, referring to the opinions of the Committee on Civil Liberties and theCommittee on the Rights of the Child, held that Article 900(4) of the Civil Code was unconstitutionallyinvalid in violation of Article 14 of the Constitution.

4 Summary
The Covenant on Civil Liberties has domestic legal force from the day it enters into force in a country
after ratification. The Covenant also has supremacy over law and is recognized as a judicial norm.
Based on what has been said above about the validity of the Covenant, the next section will proceed
to the argument that hanging violates the Covenant.
48

5 Violations of the Covenant on Civil Liberties
1 "Cruel, inhuman or degrading treatment or punishment" means
Article 7 of the Covenant on Civil Liberties (which is also almost identical and synonymous with Article
3 of the European Convention on Human Rights and Article 16 of the Convention against Torture)prohibits "cruel," "inhuman" and "degrading" treatment or punishment. Article 7 of the Covenantderives from the "human dignity" stipulated in the preamble of the Covenant, the purpose of which isto protect the dignity and physical and mental integrity of the individual (A10: General Comment 20,
para. 1). Article 10 of the Covenant also requires States parties to treat all persons deprived of theirliberty (including, of course, those who have been sentenced to death and are detained in penal
institutions) "humanely and with respect for the inherent dignity of the human person," including therights guaranteed in Article 7 of the Covenant.
Regarding the meaning of "cruel, inhuman or degrading" treatment or punishment in article 7 of theCovenant, the Committee stated that "the Committee has not drawn up a list of acts prohibited by thearticle and has not established a strict distinction between the different types of punishment,
degrading treatment or punishment provided for in the article. The Covenant Committee has not
drawn up a list of acts prohibited by the article and has not established strict distinctions between the
different types of punishment or treatment provided for in the article. Those distinctions depend on
the nature, purpose and extent of the treatment applied" (Kou-E10: General Comment 20, para. 4).
They are not distinct acts, but are graded according to their intensity and degree of severity within the
totality of the physical and mental infringement.
Cruel or inhuman punishment is the intentional infliction of great bodily or mental harm. The degreeof intensity that constitutes "cruel" (cruel) or "inhuman" (inhuman) punishment "shall be determinedon the basis of all the circumstances of the case, including duration, method, sex, age, and health ofthe victim. In such cases, even if there is no intention or purpose to demean the victim's character, thepunishment may be "cruel" or "inhuman.
Degrading" or "degrading" treatment or punishment is considered a broader concept than "cruel" or"inhuman" treatment or punishment (e.g., the Tyler decision of the European Court of Human Rights).
All "torture" is undoubtedly "cruel," "inhuman" and "degrading" treatment or punishment, and"cruel," "inhuman" or "degrading" treatment or punishment is not the same as "degrading" treatment
or punishment. “Cruel" (cruel) or "inhuman" (inhuman) treatment or punishment generally causes
severe physical or mental suffering, whereas "degrading" (degrading) punishment is highly subjective
and humiliating or degrading to a person's status, position, reputation, or character. In addition,"treatment" is considered to be a broader concept than "punishment.

2 Criteria for "cruel, inhuman or degrading treatment or punishment(1) Death penalty itself is a violation of Article 7 of the Covenant on Civil Liberties
The adoption of international legal instruments other than the Covenant on Civil Liberties that prohibit
the imposition or execution of the death penalty, such as Protocol VI to the European Convention on
Human Rights, the increase in the number of States Parties to the Second Optional Protocol to the49

Covenant on Civil Liberties (90 countries), and the increase in the number of countries that haveeffectively suspended executions but have not abolished capital punishment indicate that significant
progress is being made toward an agreement among the States Parties to the Covenant to treat capital
punishment as a cruel, inhuman, or degrading form of punishment.
Committee on Civil Liberties General Comment 36 (Article 6 Right to Life)
51. Although the allusion to the conditions for application of the death penalty in article
6 (2) suggests that when drafting the Covenant, the States parties did not universally
regard the death penalty as a cruel, inhuman or degrading punishment per se, 214
subsequent agreements by the States parties or subsequent practice establishing suchagreements may ultimately lead to the conclusion that the death penalty is contrary toarticle 7 of the Covenant under all circumstances.215 The increasing number of States
parties to the Second Optional Protocol to the Covenant, aiming at the abolition of thedeath penalty, other international instruments prohibiting the imposition or carryingout of the death penalty, and the growing number of non-abolitionist States that havenonetheless introduced a de facto moratorium on the exercise of the death penalty,suggest that considerable progress may have been made towards establishing anagreement among the States parties to consider the death penalty as a cruel, inhumanor degrading form of punishment.216 Such a legal development is consistent with the
pro-abolitionist spirit of the Covenant, which manifests itself, inter alia, in the texts ofarticle 6 (6) and the Second Optional Protocol.

(2) Execution methods that cause as little physical and emotional distress as possible
The Committee interprets Article 7 of the Covenant in light of the fact that countries where the death
penalty remains in force are subject to strict limitations on the application of the death penalty and on
the power of execution, and that the death penalty itself has been held to be a violation of Article 7 of
the Covenant. The Committee strictly limits the method of execution in its General Comments andindividual reporting cases, and determines whether the method of execution constitutes "cruel,inhuman or degrading treatment or punishment" based on all the circumstances of the case, including
duration, method, sex, age and health of the victim, and the circumstances of the case. The court
stated that whether or not the method of execution constitutes "cruel, inhuman or degrading
treatment or punishment" is determined based on all the circumstances of the case, including duration,
method, sex, age, and health of the victim, and if the method of execution is not carried out "in amanner that minimizes physical and mental suffering as much as possible," then the execution
constitutes "cruel, inhuman or degrading treatment or punishment.
Committee on Civil Liberties General Comment 36 (Article 6 Right to Life)
40. States parties that have not abolished the death penalty must respect article 7 of
the Covenant, which prohibits certain methods of execution. Failure to respect article
7 would inevitably render the execution arbitrary in nature and thus also in violationof article 6.

50

The Committee has already opined that stoning, injection of untested lethal drugs, gaschambers, burning and burying alive and public executions are contrary to article 7.
For similar reasons, other painful and humiliating methods of execution are also
unlawful under the Covenant. Failure to provide individuals on death row with timely
notification about the date of their execution constitutes, as a rule, a form of illtreatment, which renders the subsequent execution contrary to article 7 of theCovenant. Extreme delays in the implementation of a death penalty sentence thatexceed any reasonable period of time necessary to exhaust all legal remedies may
also entail the violation of article 7 of the Covenant, especially when the long time on
death row exposes sentenced persons to harsh or stressful conditions, including
solitary confinement, and when sentenced persons are particularly vulnerable due tofactors such as age, health or mental state.

Committee on Civil Liberties General Comment 20 (Article 7 Torture and degrading
treatment)
6.The Committee notes that prolonged solitary confinement of the detained or
imprisoned person may amount to acts prohibited by article 7. As the Committee hasstated in its general comment No. 6 (16), article 6 of the Covenant refers generally toabolition of the death penalty in terms that strongly suggest that abolition isdesirable. Moreover, when the death penalty is applied by a State party for the mostserious crimes, it must not only be strictly limited in accordance with article 6 but it
must be carried out in such a way as to cause the least possible physical and mental
suffering.

Freedom of Copyright Statute Personal Notification Incident 3 Ng v. Canada Incident(CCPR/C/49/D/469/1991)
16.1 In determining whether, in a particular case, the imposition of capital
punishment constitutes a violation of article 7, the Committee will have regard to therelevant personal factors regarding the author, the specific conditions of detention ondeath row, and whether the proposed method of execution is particularly abhorrent.
In the instant case, it is contented that execution by gas asphyxiation is contrary tointernationally accepted standards of humane treatment, and that it amounts totreatment in violation of article 7 of the Covenant.

3

The Covenant was established under the First Optional Protocol to the Covenant on Civil Liberties(adopted on December 16, 1966, but not ratified by Japan), which allows individuals who havesuffered human rights violations to request a hearing and remedy directly from the CovenantCommittee, the body that oversees the implementation of the Covenant. The Covenant Committee
issues "Views" on whether or not a human rights violation has occurred.
51

The Committee begins by noting that whereas article 6, paragraph 2, allows for theimposition of the death penalty under certain limited circumstances, any method of
execution provided for by law must be designed in such a way as to avoid conflictwith article 7.
16.2 The Committee is aware that, by definition, every execution of a sentence ofdeath may be considered to constitute cruel and inhuman treatment within themeaning of article 7 of the Covenant; on the other hand, article 6, paragraph 2,
permits the imposition of capital punishment for the most serious crimes.
Nonetheless, the Committee reaffirms, as it did in its General Comment 20[44] onarticle 7 of the Covenant (CCPR/C/21/Add.3, paragraph 6) that, when imposing
capital punishment, the execution of the sentence "... must be carried out in such a
way as to cause the least possible physical and mental suffering". 16.3 In the present
case, the author has provided detailed information that execution by gas
asphyxiation may cause prolonged suffering and agony and does not result in deathas swiftly as possible, as asphyxiation by cyanide gas may take over 10 minutes. The
State party had the opportunity to refute these allegations on the facts; it has failed
to do so. Rather, the State party has confined itself to arguing that in the absence ofa norm of international law which expressly prohibits asphyxiation by cyanide gas,
"it would be interfering to an unwarranted degree with the internal laws andpractices of the Unites States to refuse to extradite a fugitive to face the possible
imposition of the death penalty by cyanide gas asphyxiation".
16.4 In the instant case and on the basis of the information before it, the Committee
concludes that execution by gas asphyxiation, should the death penalty be imposedon the author, would not meet the test of "least possible physical and mental
suffering", and constitutes cruel and inhuman treatment, in violation of article 7 of
the Covenant. Accordingly, Canada, which could reasonably foresee that Mr. Ng, if
sentenced to death, would be executed in a way that amounts to a violation ofarticle 7, failed to comply with its obligations under the Covenant, by extraditing Mr.
Ng without having sought and received assurances that he would not be executed.
16.5 The Committee need not to pronounce itself on the compatibility, with article
7, of methods of execution other than that which is at issue in this case.

In addition, the United Nations adopted "Safeguards to ensure the protection of the rights of persons
facing the death penalty" (May 25, 1984, Annex to UN Economic and Social Council Resolution
1984/50) (A E11), as follows.

9 Where capital punishment occurs, it shall be carried out so as to inflict theminimum possible suffering.

3 Hanging constitutes "cruel, inhuman or degrading treatment or punishment."

52

The Committee on Civil Liberties, established as the implementing body of the Covenant, hasinterpreted in its international implementation that executions violate Article 7 of the Covenant byconstituting "cruel, inhuman or degrading treatment or punishment" unless they are "carried out insuch a manner as to cause as little physical and mental suffering as possible" and that executions inviolation of Article 7 also violate Article 6(1) of the Covenant as "arbitrary deprivation of life".
In light of this, UN human rights bodies such as the Committee against Torture and the UN Human
Rights Council have also applied the international human rights standards (global standards) set forth
by the Committee on Civil Liberties and held that hanging constitutes "cruel, inhuman or degrading
treatment or punishment" under Article 7 of the Covenant.
(1) Examination of Japan's Report at the Committee against Torture4
The Committee against Torture is a UN human rights body established to implement the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As noted above,"torture or other cruel, inhuman or degrading treatment or punishment" prohibited by theConvention against Torture is synonymous with Article 7 of the Covenant. The Convention specificallyaddresses the rights guaranteed by Article 7 of the Covenant, and the Committee against Torturemonitors the implementation of the prohibition of "torture and other cruel, inhuman or degrading
treatment or punishment" by States Parties to the Convention.
The review of Japan's report on the implementation of the Convention against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment pointed out that the hanging sentences
practiced in Japan are "cruel" and "inhumane" punishment, as follows.
The First Report of Japan submitted by the Government of Japan on December 20, 2005 contained
the following reference to the cruelty of the death penalty (Kou-E12: Government Report).

145. The death penalty system in Japan is a punishment provided for in the Penal
Code. It falls under the lawful sanctions referred to in paragraph 1 of Article 1 of theConvention and does not constitute the torture referred to in the Convention.
Furthermore, hanging, presently practiced in Japan, is not considered to be
inhumanly cruel compared to other methods, and does not fall under cruel,inhuman or degrading punishment.

4

Both the Covenant on Civil Liberties and the Committee against Torture require each State Party tosubmit reports on a regular basis in order to oversee implementation in each State Party. After thesubmission of a government report, the Committee convenes an examination of the report, which isfollowed by the submission of alternative reports by various NGO groups, including the Japan
Federation of Bar Associations, and the adoption of "concluding observations," including
recommendations.
53

The minutes of the 767th session of the Committee against Torture held on May 9 contain thefollowing record (Kou-E13:CAT/C/SR.767).

40. Noting that Japan was a party to the International Covenant on Civil and Political
Rights, which called on States to limit the crimes for which the death penalty could
be imposed, he asked whether the Government had any plans to abolish the death
penalty. He stressed that the matter should be kept constantly under review. He
also expressed serious concern that, according to the report, execution by hanging
was not considered inhuman in Japan.

The minutes of the 770th meeting held on May 10 contain the following record (Kou-E14: CAT/C/SR.
770).
28. Mr. MATSUMOTO (Japan), having taken note of the Committee’s concern thatthe death penalty was still in force in Japan, pointed out that hanging, which was theform of execution used in Japan, was not considered to be inhuman treatment inJapanese society and that it did not inflict any more physical or mental sufferingthan other existing execution methods.
52. The CHAIRPERSON welcomed the fruitful dialogue that had been started with
the Japanese delegation on ways of ensuring better compliance with the provisionsof the Convention against Torture. He regretted the – to say the least – expeditious
reply given by the delegation to the question of hanging. Contrary to the assertions
made, hanging was in fact cruel treatment within the meaning of the Convention. It
was also difficult to accept references to public opinion as a justification for such aform of execution. It was well known that all countries which had abolished capital
punishment had done so against the will of public opinion.

(2) Report of the Special Rapporteur at the UN Human Rights Council
The UN Human Rights Council is the UN human rights body established in 2006 as a subsidiary body of
the General Assembly. The Council comprises 47 member states: 13 from Asia, 12 from Africa, 8 from
Latin America, 6 from Eastern Europe, and 7 from Western Europe and Others. The functions of the
Human Rights Council are: 1. to provide human rights education and learning, advisory services,
technical assistance, and capacity building in consultation with and in agreement with Member States;
2. to provide a forum for dialogue on thematic issues of human rights; 3. to make recommendations
to the General Assembly for the further development of international law in the field of human rights;
4. to promote full implementation of human rights obligations to which States have committed
themselves and to provide protection for human rights arising from UN conferences and summits; 5.

54

Implementation of universal periodic review of States' human rights obligations and commitments; 6.
Prevention of human rights violations and immediate response to human rights emergencies throughdialogue and cooperation; 7. Inheritance of the role and responsibilities of the Human Rights
Committee in the work of the Office of the High Commissioner for Human Rights (special procedures,
appeals procedures, etc.); 8. work in the field of human rights in close cooperation with governments,
regional organizations, national human rights institutions, and civil society; 9 preparation ofrecommendations on the promotion and protection of human rights; and 10 annual reports to theGeneral Assembly.

The procedures for monitoring the human rights situation in each country are the Universal Periodic
Review (UPR), the Special Procedures, and the Appeals Procedure. As of 2016, there were 43 thematic
mandates and 14 country-specific mandates. In order to avoid politicization of the proceedings and toensure impartiality, an independent human rights expert reports and makes recommendations on thehuman rights situation, including the implementation of human rights treaties.
The Special Rapporteur mandated under the theme "Torture and other cruel, inhuman or degrading
treatment or punishment" reports on hanging as follows(1) Special Rapporteur Juan E. Mendez (term 2010 to 2016)
The interim report of the Special Rapporteur Juan E. Mendez, submitted by the Secretary-General of
the United Nations to the 67th session of the UN General Assembly on August 6, 2012, contains thefollowing statement (Kou-E15)
33. The United Nations High Commissioner for Human Rights has suggested thathanging, as a matter of law, is contrary to article 7 of the Covenant. In 2007, the HighCommissioner submitted an amicus curiae application to the Iraqi Supreme Criminal
Tribunal because of the real risk that the method of execution would itself amount toinhuman or degrading treatment or punishment. Acknowledging that the prohibitionof cruel, inhuman and degrading treatment was a core provision of international
human rights law, the High Commissioner found that the executions (by hanging),
were so flawed as to amount, in their implementation, to cruel, inhuman anddegrading punishment.

(2) Special Rapporteur Nils Melzer (term 2016 to 2022)
On March 1, 2017, during a high-level panel discussion on the issue of the death penalty at the 34th
session of the UN Human Rights Council, Special Rapporteur Nils Melzer made the following reference
to hanging (Kou E16)55

18. The Special Rapporteur also spoke of methods of execution that inflicted
unnecessary mental or physical suffering or humiliation and had been found to violate
the prohibition of torture and other cruel, inhuman or degrading treatment or
punishment. They included execution by stoning, gas asphyxiation, hanging, the electricchair, burning, live burial, decapitation, lethal injection (when untested and/or not
administered properly) and any form of secret or public execution. In a 2015 report, theSecretary-General concluded that the death penalty was incompatible with humandignity, the right to life and the prohibition of torture and other cruel, inhuman ordegrading treatment or punishment (see A/HRC/30/18, para. 55). He highlighted thatmany national courts had reached the same conclusion and noted that a number ofstates in the United States of America had abolished the death penalty because it
constituted an extreme form of physical and psychological suffering that violated theprohibition of torture and other cruel, inhuman or degrading treatment or punishment.

4 Short Summary
As mentioned above, the Committee on Civil Liberties, established as the implementing body of theCovenant, has interpreted in its international implementation that executions, unless carried out "insuch a manner as to cause the least possible physical and mental suffering," constitute "cruel, inhumanor degrading treatment or punishment" and thus violate Article 7 of the Covenant. Furthermore, theCommittee interprets executions in violation of Article 7 of the Covenant as an "arbitrary deprivationof life" and a violation of Article 6(1) of the Covenant.
Based on this, UN human rights bodies such as the Committee against Torture and the UN Human
Rights Council have applied the international human rights standards (global standards) set forth by
the Committee on Civil Liberties and held that hanging constitutes "cruel, inhuman, or degrading
treatment or punishment" under Article 7 of the Covenant.

6 Summary - Japan's Hanging Violates the Covenant on Civil Liberties
Human rights should be guaranteed universally regardless of country. To this end, human rights
guarantees (interpretation) cannot be left to individual countries. Based on this common
understanding of human rights, the international guarantee and implementation of human rights are
stipulated in each of the human rights treaties. The Covenant on Civil Liberties was adopted to legallybind the parties to the Covenant, and Japan ratified the Covenant with the approval of the Parliament.
The Covenant is directly applicable under the Constitution of Japan in both letter and nature, and as atreaty, its legal status is superior to that of laws, and laws contrary to the Covenant must be nullified
or interpreted in conformity therewith. It is well-established case law that laws contrary to theCovenant of Civil Liberties are to that extent denied validity.

56

In addition, the views and general opinions of the Covenant Committee on Civil Liberties are important
guidelines for the interpretation of the Covenant. From the viewpoint of international guarantee ofhuman rights, the Covenant must be interpreted in an internationally consistent manner, and Japanesecourts cannot make their own interpretative judgments that differ from the views and general opinions
expressed by the Covenant Committee.
Hanging as practiced in Japan is "cruel and inhumane" punishment and constitutes "degrading
treatment or punishment", as described in detail below. Therefore, the hanging as practiced in Japan
violates Article 7 of the Covenant, and furthermore, execution in violation of Article 7 constitutes"arbitrary deprivation of life" and a violation of Article 6(1) of the Covenant. As a contracting party,
Japan (including its judicial power) is bound by the Covenant, and any provisions of its domestic law,
the Penal Code, that violate the Covenant are invalid as a violation of the Convention.

V. The Brutality and Inhumanity of Japanese Hangings
1 Subjective and Objective Cruelty
There are two perspectives to the execution of a hanged person: subjective cruelty from theperspective of the person sentenced to death (the condemned person) and objective cruelty from theperspective of a third party. From both perspectives, cruelty and inhumanity can be questioned in two
situations: during the execution process and after the execution.
First, subjective cruelty is recognized in the process of execution, as hanging causes great physical andmental suffering to the condemned person.
In addition, hanging causes serious damage to the condemned person's body. The hangings cause great
physical and mental suffering to the enforcers.
Hanging also severely damages the body of the condemned person. The gruesomeness and horrificnature of the execution lays the foundation for objective cruelty. At the same time, the unwanted
manner of death and post-mortem condition of the executed person also underlies subjective cruelty.
The question here is whether such a manner of death or postmortem condition is inhumane to theperson executed, whether it is degrading to the person executed, and whether it undermines his or
her dignity as a human being.
In order to hold that the Japanese hanging does not constitute "cruel, inhuman or degrading
punishment" prohibited by Article 7 of the Covenant, and therefore does not constitute arbitrary
deprivation of life prohibited by Article 6, both the subjective and objective atrocities described above
must be denied.

57

2 Standards of cruelty, inhumanity, and decency change over time.
As times and environments change, the way we think about, perceive and appreciate the dignity of'how people die' changes. However, the Supreme Court's decision of March 12, 1948 (Showa 23)
concluded that the death penalty is constitutional, but stated that "even in the case of the death
penalty, if the method of execution is generally considered cruel from a humanitarian standpoint in
the time and environment in which it is imposed, it must of course be considered cruel and inhumane"(underlined by the plaintiffs' counsel).
The cruelty and inhumanity of hanging in modern times must be judged from the perspective of humandignity and respect for the individual, which have changed dramatically with time and the environment,
as stated by the Supreme Court 74 years ago, i.e., from a humanitarian perspective rooted in modern
common sense and a sound and universal moral sense. Articles 6 and 7 of the Covenant on Civil
Liberties are the most universal rules of our time, based on a moral sense of respect for the dignity of
the individual. It is not surprising that the Supreme Court's decision of April 6, 1955 (Showa 30), which
rejected the brutality of hanging, is evaluated differently today than it was in the past.
3 Changes in Execution Methods to Avoid Cruelty
1 Changes in Methods of Execution in Japan(1) Study and Transition of Execution Methods in the Meiji Era
The method of execution in Japan has changed in line with the idea of reducing objective cruelty froma third-party perspective.
The Japanese Penal Code, enacted in 1742, had been followed since the Meiji era (1868-1912), but inthe first year of Meiji, the "Provisional Penal Code" was created. The Provisional Penal Code stipulated
six methods of execution: strangulation, beheading, gibbeted head, slaying, crucifixion, and burning.
In 1870 (Meiji 3), the new Code of Discipline established three types of death penalty: strangulation,beheading, and hanging. The new code of law stated that there were three types of death sentences:
strangulation, beheading, and gibbeted head. The expression "strangle" emphasizes that it is a minimalmeans to end a person's life, and that the head and torso are not separated, meaning that thecondemned person's body is not damaged.

Year
1870 (Meiji 3)

Criminal law
Enactment and enforcementof the New Disciplinary Code58

Method of Execution
Strangulation, beheading, and gibbeted
head(slaying, crucifixion and burning are
abolished)1873 (Meiji 6)

1882 (Meiji 15)
1980 (Meiji 41)

Enactment and enforcementof the Revised Ritsuryo Code

Strangulation, beheading, and gibbeted
head(gibbeted head was abolished in 1879)
Enforcement of the old Penal hanging execution
Code
Enforcement of the current
hanging execution
criminal law

For more information on this transition in the enforcement of the current Penal Code, see "A Study on
the Transparency of Executions in Japan (1)" (Kou-F1-1) by Yusei Fuse.
(2) Abolition of the hanging tool in the New Ritual era
The hanging method of execution under the New Code of Penal Procedure was the strangling post.
The prisoners were blindfolded and taken to the penitentiary, where they were made to lean theirbacks against the strangling post, the back of their neck was placed against a wooden pillow, the ropeon the front of the strangling post was placed around their neck, which was then strangled by a weighton the back of the post, the body was suspended in midair and after three minutes death was
confirmed and the body was taken down.
However, this method of execution was not suitable for practical use, and in 1872 (Meiji 5), there werecases of people being revived after execution, and many people called for its abolition on the grounds
that it was "painful”. In an inquiry to the Ministry of Justice, Kagoshima stated that the shape of thegallows was reminiscent of the crucifixion cross, which was abolished under the new Code of Discipline,
and that "during the execution of a hanging, the abdomen of a prisoner whose life has not yet ended
expands and his ears and nose bleed, which is more painful than beheading and equivalent to
crucifixion" and called for the "abolition of the gallows" (A In 1872, the Ministry of Justice proposed to
manufacture a new execution device imitating Western machines and to abolish the existing strangling
post because of the long and painful process of ending a prisoner's life (Kou-F1-1, p. 74).
(3) Consolidation to hanging by abolition of the barbaric show and beheading
In July 1876, the Senate, established as a legislative body in 1875 (Meiji 8), unanimously passed the"Opinion that the Death Penalty be Stifled," which called for the abolition of "slaying" and " gibbeted
head" as methods of execution. The reason given was that the " slaying" method was more gruesome
than strangulation in two respects: the head and torso are cut off, and fresh blood flows from the body.
The "gibbeted head" were even more gruesome than the "slaying" because the severed head was
exposed to the public as an example of what was to come.
Since the Meiji government did not take any action, the Senate submitted another opinion on June 14,1878 (Meiji 11) to only abolish gibbeted head. The revised law was adopted by proclamation of theGrand Council of State on January 4, 1879 (Meiji 12), and the gibbeted head practice was abolished.

59

As a result, hanging and beheading remained as methods of execution, and since beheading was alsoabolished under the old Penal Code that came into effect in 1882, the method of execution in Japanwas unified into "hanging" (Kou-F1-1, pp. 72-74).
(4) Changes in enforcement methods aimed at avoiding objective cruelty
The beheading was abolished with the enactment of the old Penal Code. Boissonade, who was incharge of drafting the old penal code, stated in his Commentary on the Draft Penal Code, "In today's
civilized world, the death penalty is a means of depriving a person of his life and making him suffer.
The basic principle of the death penalty was to deprive a person of life, and the fastest and least painfulmeans of execution was to be sought. It is not clear whether the death penalty is to be carried out byslashing or strangulation, but it is said that the strangulation method, which does not separate thebody, was chosen for the utilitarian reason that the bereaved family would feel less resentment (KouF1-1, p. 77).
Boissonade judged the strangulation to be less brutal than the beheading, on the assumption that thestrangulation would not cause head dismemberment when viewed by a third party. This was inaccordance with the basic principle of choosing the least cruel method of execution.
The same understanding was expressed by Tsunetaro Ohno, Director General of the Criminal Affairs
Bureau of the Ministry of Justice, at the 168th meeting of the House of Representatives Committee on
Legal Affairs held on December 7, 2007.
The Penal Code promulgated on July 17, 1801 (Dajokan Nunbunsho No. 36, 1801),
states that the death penalty was to be carried out only by hanging. The reason for thechange to hanging as the sole method of execution is not necessarily clear, as it was along time ago, but Boissonade, who was one of the committee members who compiled
the Penal Code, gave the reason for the change to hanging only, or rather, the reason
for the change to beheading only. There is a record that Boissonade, who was one of
the members of the committee that compiled the Penal Code, explained that although
there had been so-called beheadings before, hanging was less brutal than beheading.
(Kou- B1)

Boissonade not only explained that hanging is less brutal than beheading, but also added that "thesubtlety of the power of the overpowering force or a chemical agent can stop the pulse, or a gas cancut off the habitat in an instant," and that if new methods of execution such as electricity, drugs, orgas were invented in the future, "these or the two types of beheading would be superior. If new
methods of execution such as electricity, drugs, or gas were invented in the future, "they would besuperior to these or to the two types of beheading. In other words, he was of the opinion that if a lesscruel method than hanging was invented, the "least cruel method" should be used.

60

(5) Short summary
The method of execution in Japan changed in the early Meiji period in search of less cruel methods.
The method of execution was mainly judged from the perspective of whether or not there wasobjective cruelty and the degree of cruelty from the perspective of a third party. In the Meiji era,
hanging was chosen as a less cruel method of execution compared to earlier methods, and it hasremained unchanged for the past 140 years.

2 Trends of Abolition of the Hanging Sentence in the United States(1) History of the abolition of hanging
As mentioned above, Japan's former Penal Code went into effect in 1882. Under this law, the only
method of execution of the death penalty in Japan was hanging, instead of "strangulation" and"beheaded”.
In the United States, three years later, in 1885, the governor of New York told the state legislature that"the present mode of execution by hanging has existed since the Dark Ages, and it is to be asked
whether present science can not provide a less brutal means of taking the life of a condemned man.
In 1886, the New York State Legislature responded by creating the New York State Death Penalty
Commission to "make an early investigation and report on the most humane and practical method ofadministering the death penalty in the light of modern science. The Commission's report was
submitted to the State Legislature in 1888. The report is also known as the "Gerry Report" after thechairman of the Commission. The report prompted the State of New York to change the method of
execution from hanging to electric execution in 1888. In the roughly 100 years between then andDelaware's abolition in 1986, hanging was abolished and replaced by other methods of execution. The
situation of the abolition of the death penalty and the abolition of the hanging penalty in each statesis as follows (Kou-G5-1, 2, Professor Furukawahara's written response (No. 1)).
Death Penalty Abolition States and Hanging
State
Wisconsin

Year
1853

Maine

1887

Minnesota

1911

Abolished the death penalty when the state adopted hanging asa method of execution.
Abolished the death penalty when the state retained hanging asa method of execution
Abolished the death penalty when it retained hanging as amethod of execution.

61

Michigan

1963

Abolished the death penalty when it retained hanging as amethod of execution.

Iowa

1965

Abolished the death penalty when the state adopted hanging asa method of execution.

North Dakota

1973

Kansas

1977

Washington

2018

Abolished the death penalty when the state adopted hanging asa method of execution.
Hanging has not been officially abolished as a method of
execution, but there are no crimes for which the death penalty isendorsed in the state.
Hanging had remained as one of the methods of execution, but aSupreme Court decision abolished the death penalty.

AlaskaHawaiiMontana

Alaska has not had the death penalty since admission as a state.
Hawaii has not had the death penalty since it was admitted as astate.
Retains hanging as a method of execution, but no one has been
hanged since the 1943 execution of Philip "Slim" Coleman, an
African American man who confessed to killing a white woman.

(2) Reason for the change from hanging to electric execution
The Gerry Report assumed that the loss of life itself is the most serious loss a human being can suffer,
and while "increasing the pain of death or increasing the loss in a way that makes a lawful execution
more horrific is acceptable only if it has a deterrent effect," the deterrent effect of increasing pain andfear has not been proven. However, the deterrent effect of increasing pain and fear has not been
proven. The court then concluded that the hanging penalty was contrary not only to the human spiritof the times, but also to the purpose of the law itself, because it increased the fear of death by causing
the offender even more severe physical pain.
The Gerry Report cites 30 instances of hanging executions that it characterized as atrocious. The Gerry
Report found 30 hangings to be objectively cruel, in a manner that makes legitimate executions more
horrific, and in a way that increases the suffering of the executed by invading their bodies anddamaging their flesh.
The electric chair and gas chamber methods of execution, which were adopted in the United States as
more humane than hanging, were later replaced by lethal injection as a cruel and abnormal form ofpunishment. In addition, the use of lethal injections is now sometimes questioned as cruel.

62

3 Short Summary
In the United States, the selection and change of execution methods was based on the criteria of whatis the least cruel method. The same was true in Japan, at least until the early Meiji period. The Japanesehangings were chosen as a less cruel method after the earlier methods of gibbeted head, slaying,
crucifixion were abolished due to their objective cruelty and painfulness. Since then, Japan has not
paid attention to what hangings do to the bodies and minds of the hanged, and whether there are lesscruel methods.
The United States, on the other hand, has not only abolished hanging, but has also sought ways toreduce the physical injury and suffering of the condemned person. In some states, the death penalty
itself has been abolished when hanging remains the method of execution.

4 Brutality and Indignity of Hanging
1 Report of the New York State Gerry Committee(1) Proposed Electrocution as an Alternative to Hanging
The Gerry Report reviews past and current death penalty laws and 34 methods of execution (including
hanging, firing squad, burning at the stake, Japanese harakiri, etc.), and offers criticism of the state's
use of hanging at the time. The report concluded by proposing electrocution as an alternative tohanging. In response to this report, the state became the first in the world to adopt electrocution as amethod of execution.
(2) 30 examples from the Gerry Report
The Gerry Report details the cruelty of hangings. The Gerry Report contains 30 cases. The following
are quotations from some of the cases listed.

After the treadmill fell, he was shown several times in severe pain as he spasmed
violently and spun around twice in constant agony.
(Execution of Samuel Mitchell, Kou-F2-2, p. 20)
The fall was nearly five feet, and the fall was so great that the man's head was severedby a strangling rope, and the ghastliness of it made those who witnessed it turn theirfaces away in awe.
(Execution of Nathan B. Sutton, Kou- F2-1, p. 24)

63

The 30 examples in the report describe the pain of the executor, the failure of the execution, and thereaction of the witnesses from a third party's objective perspective.
(3) Conclusion of the Gerry Report
The Gerry Report concluded that a change in the current method (hanging) was justified. “Thedeprivation of life is, in itself, the most serious loss suffered by any human being. Increasing that loss,
even accidentally, in a way that makes the pain of death greater or the execution more terrible, isjustified only on the basis of the argument that it has a deterrent effect”, but that "it has been tried
for many years without success" (Kou-F2-1, p. 37). The court decided that the execution of the death
penalty should be limited to the mere taking of life, and that it should not be allowed to increase theagony of death.
He then noted that where the New York State Constitution at the time prohibited the imposition of"cruel and abnormal punishment," the hanging method of execution "may achieve the desired result,
yet at the same time increases the fear of death by subjecting the offender to extra severe physicalpain, in violation not only of the benevolent spirit of the times, but also of the content of the law. But
at the same time, it is against not only the benevolent spirit of the times, but also the content of thelaw itself." (Kou-F2-1, p. 38), and proposed the electric chair as an alternative to hanging.
The Gerry Report objectively evaluated the cruelty and gruesomeness of the hanging method of
execution from a third-party perspective and concluded that hanging is a cruel method of executionthat causes extra severe physical pain to the condemned person.
2 Cases of head disarticulation(1) Scientific experiments and medical findings
The mechanism of death by hanging of a executioner is described in detail in III-2-2 above. In any
mechanism of death by hanging, some injury to the body occurs, but the most brutal and gruesome isthe dismemberment of the head.
DVD (Kou-F3) is an experimental video of "hanging" using dummy dolls produced by the BBC (British
Broadcasting Corporation). It is clear that under certain conditions, head dismemberment definitely
occurs. In the case of human beings, unlike dummy dolls, the head itself is not severed because of theskin of the neck (including muscles), but there are cases in which the head is connected to the neck bya single piece of skin due to internal rupture. This can be understood from Dr. Ishibashi’s paper
mentioned above.

64

(2) Reported cases of head dismemberment abroad
The following are examples of head dismemberment resulting from hangings.
On May 1, 1942, Major Risenber, Robert James, was executed at San Quentin Prison in California, USA.
Clinton Duffy, the prison warden at the time, wrote the following in his book "Death Row" (Sankei
Publishing, 1978, original title "88 MEN AND 2 WOMEN", Kou-F4).
“Please share your thoughts on this death penalty."
One reporter asked.
“I wish everyone in California could have seen the execution. I wish everyone could haveseen Risenber's face, his neck half torn off, his eyes popping out, his tongue hanging
out, his legs swinging in the air, his urine, his defecation, his sweat, the smell of his
blood. I wish everyone could have seen his legs swinging in the air, smelled his urine,
his defecation, his sweat, his clotted blood.”
Someone gasped, and one reporter murmured.
“You can't put that in print, sir.”“I know I can't do it. But if we could, it would be for everyone's benefit. It would help
the people of the state to know exactly how their mandate was carried out. All the
jurors who once voted for the death penalty, all the judges who once handed down
sentences, all the legislators who helped pass the laws that forced us all to go throughthis painful ordeal, should be with me today.”I looked around at the circle of pale faces in front of me. I leaned further forward andsaid, "I'm sorry, but I'm not sure I'm going to be able to do this.
“This is how I feel, gentlemen. It was the most horrifying experience of my life, and I
only pray to God that it will never happen again. I have nothing else to say.”(Kou-F4, pp. 14 and 15)
The example of Arthur Lucas at the Don Prison in Toronto, Canada, on December 11, 1962, is quoted
in Japanese from "THE LAST TO DIE RONALD TURPIN, ARTHUR LUCAS, AND THE END OF CAPITALPUNISHMENT IN CANADA" (ROBERT J.HOSHOWSKY, "THE LAST TO DIE RONALD TURPIN, ARTHUR
LUCAS, AND THE END OF CAPITAL PUNISHMENT IN CANADA," DUNDURN 2007).

65

“At the same time that the hangman sprung the contraption and they fell to their
deaths, the floor of the execution chamber fell beneath their feet with a deafening,
shuddering sound that reverberated through the room. No one who witnessed thehanging would reveal what happened that night for many years. The newspapers of
the time did not write everything. The hanging was botched. Turpin died cleanly, but
Lucas's head was torn right off. Lucadius' head was hanging by only the tendons in his
neck. Blood was spread all over the floor. The hangman had miscalculated Lucas's
weight. What a way to die," Everitt said many years later in an interview publishedshortly before his death.
...... (omitted)...... Everyone was shocked by the spray of blood, the horrifichemorrhaging, as if a water main had literally burst. The walls were sprayed withblood," said Toronto police homicide detective Jim Crawford, who witnessed thehanging of Turpin and Lucas on that chilly December night.”(Kou-F20, pp. 178-181)
The example of Barzan Ibrahim al-Tikriti, Saddam Hussein's half-brother in Baghdad, Iraq, on January
15, 2007, is cited from a report by New York Times reporter John Barnes (Kou-F18-1 & 2).
The Iraqi government released a limited video of the execution to show that Tikriti's head was notintentionally dismembered. Burns was one of the journalists shown the video by the Iraqi government.
The following is a Japanese translation of an interview with Burns that was broadcast on CNN's Internet
site in the United States.

The three-minute video is ... Brutal... As with any execution... Two frightened men...
Two badly frightened men stand near the treadmill, dressed in Guantanamo campstyle orange jumpsuits. A black hood was pulled over their heads. The two men were...
Mufamu Jihada (note: words were not clearly audible and unable to understood what
they said.)... A prayer before death... There is no god but one god... And then he fell.
And then he fell. Barzan Ibrahim al-Tikriti, the head of the secret police under Husseinand his half-brother, was eight feet (2.44 meters: note by defense lawyers) as
determined.... When he fell that far... His head was torn off in an instant... The camera
then... ...forward to look into the hole under the gallows... There he was lying on his
face... "without his head... There was a pool of blood around his neck, his head was stillin the black hood, and behind him... It was in a hole... What happened was that the
Iraqi officials had tried very hard this time, and it was going well, but they seemed tohave failed at the drop table and the hangman's call. This man of medium height was
dropped too far and at too great a rate of fall. (A "fall chart" is a chart used to66determine the length of the rope and the distance to be dropped according to theweight of the hanged person.)

There are other cases of head dismemberment. The cases are listed in "Is Hanging a Cruel
Punishment?" (Kou-F16). p. 54 is in Australia, p. 55 is in the United Kingdom, p. 58 is in the UnitedStates, and in many other countries around the world.
(3) Neck injury not resulting to head dissection
One example of incomplete head dismemberment is the case of Otowa Onozawa. The Yomiuri
Shimbun of July 7, 1883, the day after the execution, reported the following:“I have just heard that the death penalty was carried out at 8:30 a.m. yesterday at the
Ichigaya Prison Station by order of Justice Ohki.... (omission)... The face was covered
with Asakusa paper and bound in the back of the head. The body was pulled out to the
execution site by a ladder, and a ladder was climbed up on the execution platform toenter the prison ... (omission) ... When the footboard of the platform was removed,
Otowa's body was evenly hung around his neck, and he was fished down from a heightof about one meter or more. When it was severed, blood gushed out in all directions,and within about five minutes he had completely lost his life.”(Kou-F5, Kou-F16, pp. 68~70)
The Tokyo Eiri Shinbun, dated the same day, also reported on the execution of Towa Onozawa as
follows (Note by the plaintiffs' attorney: "Towa" is a misnomer for "Otowa").

“At 8:30 a.m. yesterday morning, Towa was sentenced to death at the Ichigaya Prison
Station. The witness prosecutor, Mr. Tadazumi Nakagawa, the secretary, Mr.
Shigetane Ichikawa, and other members of the prison staff stood in line and called
Towa to the place of execution, as usual, and as they removed the treads to make him
fall, the rope seemed to bite deeply into his throat due to his obesity and weight, andfresh blood gushed from his nose and throat, and he died without a trace. It was a very
shameful sight. The body was dismembered a little while later. The lasso was cut witha knife and the body was placed directly into the coffin.”(Kou-F16, p. 71)

67

From these articles, we know that Otowa Onozawa's head was half torn off and fresh blood splatteredfrom her nose, mouth, and throat as a result of the hanging. In accordance with the Dajokan (GrandCouncil of State) Proclamation No. 65, the hangings in Japan did not result in complete amputation,
but in effect the head was separated from the body under the skin of the neck.
Keiko Horikawa describes what she heard from a chaplain who actually witnessed the hanging in her
book "Chaplain" (Kou-F14) as follows.

“So, you will never be saved from failure. Because your neck will be cut. When you fall,
the muscles in your neck are severed. It is the same as beheading.
(Even though it's a hanged head?)

It's a hangman's noose. The muscle breaks under its own weight. The muscle. The
muscles inside are cut. That's why I would never survive the fall.
(If the neck is not torn off, but the muscle inside is cut?)Yes. That's totally unrecognizable from the outside. It's just the moment of falling.”(Kou-F14, pp. 248, 249)
They say that hanging causes the muscles in the neck to break off, even if the neck is externallyconnected.
3 Other “Failures”
There have also been other instances of hangings that have failed, such as the rope breaking or thecondemned person becoming dislodged from the rope when the condemned person is lowered to theground. In these cases, there was a problem of re-executing the hanging (A F6).

4 Problematic cases of hangings in Japan and confidentiality of information
The revealed cases of head dismemberment and other problems resulting from hangings in Japan are
all old. This is due to the fact era at which hangings were open to public was old. In the Meiji era,anyone with a permit could be present at the execution. Article 2 of the Supplementary Provision of
the old Penal Code stipulated the secrecy of the death penalty, similar to Article 477, paragraph 2 of68the current Code of Criminal Procedure, but its application was flexible. At that time, newspaper
reporters were allowed to observe executions, and general newspapers sometimes reported on
executions. This continued until July 1908 (Meiji 41), just before the current Penal Code came into
effect in October 1908, when the Director-General of the Bureau of Prisons of the Civil Penitentiary
Bureau issued a letter stating that "strict control of the Penal Code should be exercised". The article
quoted above was published against this background.
It was after the Showa period, based on the "Report of the Investigation into the Execution of
Sentences (I)" (drafted form 1923 to 1924), that the hanging penalty was completely closed to the
public.
5 Sub-summary – the atrocity nature of execution by handing
What we have revealed so far in photographs, words, and images is the reality of hanging, and what
can actually happen to an condemned person's body. Hanging invades the body of the hanged person
and mutilates him or her. It is cruel and unbearable to watch. The pain of the condemned person's
death is unbearable to imagine. It is shocking to anyone with normal human emotions. Hanging is crueland brutal.

5 Subjective Cruelty to the Condemned person
1 How death is caused by the execution of the hangman's noose
As discussed in detail in III-3-2-(2), Dr. Lovell explained that there are five mechanisms leading to deathby hanging (Kou-D4).

(1) A condition in which compression of the jugular vein prevents oxygen from reaching the brain(2) Obstruction of the pharynx, resulting in inability to breathe(3) Head disconnection(4) Vertebral fracture with injury or compression of the medulla oblongata(5) Acute cardiac arrest due to vagus nerve injury
In each of the five mechanisms of death by hanging, what kind of physical pain does thecondemned person suffer? The following is a detailed explanation.
2 Condemned person's suffering in light of the mechanism of death by hanging(1) When the brain is deprived of oxygen due to compression of the jugular vein
According to Dr. Lovell, even when the blood flow through the four large blood vessels that passthrough the neck is completely stopped by hanging, the person remains conscious for 5 to 8 seconds

69

before the oxygen in the brain is consumed. During this time, the person continues to feel pain. When
oxygen in the brain is depleted, the person feels a headache. This is considered to be the same
symptom as that of so-called altitude sickness.
In 1948, Rossen et al. conducted experiments on healthy young test subjects to see how long they
could remain conscious after blood flow to the brain was completely stopped. The results showed thatmost of the subjects lost consciousness 5 to 8 seconds after the blood flow was stopped. When
resuscitation was performed immediately afterwards, many of them complained of headache after
regaining consciousness (Kou-F8).
The Rossen et al. experiment, however, was conducted with the subjects seated in chairs and with aprearranged device to ensure that their necks were evenly squeezed. In actual hanging, the blood flow
may not be completely stopped in many cases because the condemned person resists the noose when
it is placed around the neck, or because the rope is not applied evenly due to inexperience of thecondemned person, for example. In such cases, blood flow to the brain, or oxygen supply, will continue
to some extent, which means that the subject will remain conscious and continue to feel pain.
According to the opinions of the Death Penalty Information Center in the U.S. based on several
literatures, when death by hanging does not result in instantaneous death and the asphyxiation
continues, the condemned person's face becomes bloodshot, the tongue protrudes, both eyeballs
protrude, defecation occurs, and violent movements of the extremities occur (Kou-F21). If the veinson the outside of the neck are compressed but the arteries near the center of the neck are notcompressed enough, blood will continue to flow to the head for a period of time but will not circulate.
Blood pressure above the neck increases, causing bleeding from weak vessels such as capillaries andinjured areas. This is the reason why fundus haemorrhage is often observed in suicides committed byhanging, and the same is thought to occur in the case of hanging. The subject will feel pain from therope rubbing against his neck and pain in his brain from the lack of oxygen, in addition to the severe
pain from the fall, which causes the full weight and acceleration of gravity to be instantly applied only
to his neck.
(2) When obstruction of the pharynx makes it impossible to breathe
If only pharyngeal obstruction occurs, it takes tens of seconds to several minutes for oxygen to be
consumed in the brain. During this time, the person remains conscious and continues to experience
physical pain. In addition to the physical pain caused by asphyxiation as described in (1) above, fear of
asphyxiation (mental pain) occurs. This fear can be experienced by even those who are not thecondemned person by diving into the water or holding the nose and mouth. As an eyewitness to the
execution of a hanging described that "I could see the condemned person’s heart was moving andpounding”, "his chest was greatly puffed up" and "he was moving his legs like a dancer” (Kou- F10,
description by lawyer (former prison guard) Yoshikuni Noguchi). It is thought that the movements
were made in an attempt to suck in air since the victim was unable to breathe. If death by hanging
were caused solely by asphyxiation, it would take several minutes for the victim to lose consciousness,70and then several minutes for the victim to go from cardiopulmonary arrest to death. The condemned
person may suffer during this time.
(3) In case of head dissection
When the entire head is severed, the pain of receiving the impact of the fall on the neck is followed by
the pain of having all the bones, muscles, blood vessels, nerves, epidermis, etc. inside the neck torn
away. This pain is considered to be unimaginably painful because, unlike instantaneous amputation
with a metal blade such as a guillotine, the force of the fall and the traction of the body's own weightpull on the tissues and tear them apart. Moreover, the entire separation may not occur
instantaneously following the fall, but may take several seconds. In such a case, massive
haemorrhaging is expected to occur from the area of the neck that was almost torn off. After the bloodflow to the brain is cut off by the hemorrhage, until 5 to 8 seconds after the remaining oxygen in thebrain is consumed, the victim would feel pain associated with the severe trauma of the neck tissue
being torn off, in addition to the pain caused by the fall.
Secondly, in the case of partial dissection with external surface dissection, the patient feels pain fromthe impact of the fall on the neck, as well as pain from the partial tearing of the neck. Furthermore,unlike in the case of total dissection, the arteriovenous system may not be damaged immediately andblood flow to the brain may not cease, or the blood flow may decrease but continue for some time. In
such cases, it may take tens of seconds to several minutes before the patient loses consciousness,during which time he or she will continue to feel pain.
In addition, there can be partial rupture, in which the outer epidermis is not ruptured, but only theinternal tissues are ruptured. In this case, the patient continues to feel the pain of the neck receiving
the impact of the fall, as well as the pain caused by the rupture of the internal tissues. If the bloodvessels inside the neck are severed, massive bleeding will occur, and blood will drain into the body
cavity rather than out of the body, followed by bleeding from organs open to the outside, such as theeyes, nose, ears, and mouth. If the arteries are completely torn off by internal dissection, blood flow
to the brain will cease, but the condemned person will remain conscious for a few seconds until theoxygen in the brain is consumed, and will continue to feel pain. In either of the above cases, in addition
to severe pain in the neck to catch the fall and pain from the rope rubbing against the neck, condemned
person will feel pain from the skin, muscles, nerves, blood vessels, and other tissues and bones of theneck being torn away.
(4) Cervical vertebral fractures with injury or compression of the medulla oblongata
According to Dr. Lovell, the instantaneous destruction of the medulla oblongata by a fracture of thecervical bone causes immediate loss of consciousness, but this is not a mechanism that can becontrolled in advance. If the fracture of the cervical bone and the destruction of the medulla oblongata
occur progressively, the subject may feel the pain of the cervical spine fracture in addition to the severeneck pain of catching the fall and the pain of the rope chafing. It is difficult to imagine how much pain
this would be.

71

(5) Acute heart failure due to vagus nerve injury
According to Dr. Lovell, even in cases of cardiac failure and death due to injury to the vagus nerve thatruns through the neck, the subject will usually remain conscious for 10 to 12 seconds after acutecardiac arrest, during which time the subject will continue to suffer. It is unlikely that only the vagus
nerve in the neck would be severed or damaged, but the skin in contact with the rope would be injured,and muscles and other tissues adjacent to the vagus nerve and other nerves would also be severed ordamaged. In addition to the severe pain in the neck from the fall and the pain from the rubbing of therope, the subject would feel pain from the amputation, including at least the severing of the muscles
and other tissues surrounding the vagus nerve. It is difficult to imagine how painful this will actuallybe.
3 Experiments on pain caused by hanging
As mentioned above, Dr. Ishibashi describes hanging as "a result of the force exerted on the neck,which was much more intense than in ordinary hanging deaths. The condemned person who was
hanged and died cannot speak of his suffering. However, there is a report of an experiment to see whatkind of pain a person feels by hanging, which is a "normal hanging death. "Hanging and Suffocation
Death" (Kou-F11, I. Asada, Professor, Tokyo Medical University, M.D.) refers a report of the selfexperiment (p. 18 and below) of Professor Minovuichi. The following is an excerpt of the relevant part.

“In 1905, Professor Minovici of the University of Bucharest published a book titled"Study of Hanging" in Paris. I do not have a copy of the book, but the third and enlarged
edition of "Forensic Medicine" written by Martin, Professor of Forensic Medicine at the
University of Lyon, and his teacher Lacatsanille (under 18465), quotes Minovuich's
experience in detail. Since this book was published eight years after Mr. Bu's book, it
contains many things not found in Mr. Bu's book, especially his own experiences withregular and irregular "hanging”. The use of the plural in the first person in the text
suggests that it was done in cooperation with the pedagogical staff, just as Professor
Shoji did. However, "hanging" would have died out without a collaborator.
It has been reported that the pain is intense in the case of regular hanging. The subject
could not endure the pain for more than 5-6 seconds. As soon as he leaned his neck on
the strap, his face turned reddish purple, he became bloodshot, his eyes blurred, hisears rang, and he lost the will to continue the procedure. If the knot is tied around thearm, the blood vessels and the ch'i-duct close up too quickly. If the knot is on the gawa(side), it can withstand for 8-9 seconds. In a neck and neck experience with a maximum
pressure of 5 kg, the heart stops due to cerebral anemia. Mr. Minovichi performed aroutine hanging test. He weighed 79 kg and was suspended by a glider from a heightof 1 m above the ground. From the beginning until he was let down, the pain of the72knot pressing against the right side of his hyoid bone was so severe that he was unable
to continue the experience. The pain was so severe that it discouraged him fromcontinuing the experience. As soon as his feet left the ground and he was suspended in
mid-air, his eyelids contracted violently. His ki channels were blocked and he could not
come. I cannot hear the voice of the messenger, who is shouting out the seconds, "Onesecond, two seconds," as he pulls on the string that holds the five bodies to the pulley.
My ears were ringing. I couldn't do it for more than 4-5 seconds due to the pain andbreathlessness. I let him down. After I let him down, tears welled up in his eyes and the
movement of his throat when he swallowed added to the pain, especially at the rightgreater cornu of the hyoid bone. This pain lasted for 10-12 days. The mucous
membranes of the pharynx became bloodshot and bright red. It felt as if cocaine had
been applied to the back of my throat, and I had a severe thirst for 1-2 days. The backof the throat felt dry and parched. The area around the neck was covered withnumerous small blood spots, especially on the right side of the hyoid bone and at theend of the mastoid process behind the ear, where blood spots blended together for
about 3 centimeters. The change of the spots appeared in 5 to 10 minutes andremained for 8 to 12 days.”

From the above experiment, it is clear that even a hanging of about 1 m causes severe pain and distressdue to suffocation and compression of blood vessels, and that the hanged person does not
immediately lose consciousness but remains conscious for 5 to 6 seconds, and that the hanged person
is aware of these pains and distress.
4 Should we be willing to accept the pain and suffering caused by hanging?
(1) One does not lose consciousness in an instant.
It is not possible to completely control the mechanism by which the execution of a hanging causes thedeath of the hanged person. Moreover, regardless of the cause of death, the condemned person does
not necessarily lose consciousness in an instant; rather, he or she remains conscious for at least a few
seconds, and possibly several minutes, during which time he or she continues to experience intense
pain, breathing difficulties, panic, and fear.
(2) Osaka District Court ruling stating that the suffering caused by the hanging should be indulged.
The Osaka District Court, in its October 31, 2011 (Heisei 23) decision (the first trial decision in the
Konohana Pachinko parlor arson case), adopted Dr. Lovell's trial testimony and found the following
regarding the mechanism leading to death by hanging, the nature and duration of the suffering
inflicted on the condemned person.

73

The two most common and typical patterns of death are: 1) carotid vein compression,
which results in oxygen deprivation by blocking blood flow to the brain, resulting indeath of brain cells and cardiac arrest; or 2) pharyngeal compression, resulting in
airway obstruction, leading to oxygen deprivation and death by the same process.
These can be considered competing cases. In the first case (1), the subject is consciousfor 5 to 8 seconds while oxygen remains in the brain, and in the second case (2), thesubject is conscious for 1 or 2 minutes while oxygen remains in the body. During thistime, the patient feels suffering from neck compression and pain associated with theneck injury caused by the rope.
... However, depending on how the rope is applied, the neck may not be squeezed
evenly from side to side, resulting in a longer period of conscious time and greater pain
and suffering. In addition, if the force applied is too great, the head may break off. In
such cases, because of the strength of the neck skin, the head may not be completely
severed, but often only the internal tissues are partially separated. To avoid this, if thelength of the rope (fall distance) is shortened, the tightness will be diffuse and theinmate's pain will increase. Since the strength of the neck tissue varies from person toperson, it is impossible to prevent the head from breaking off completely.
... Thus, in most cases, a hanging takes at least five to eight seconds before
consciousness is lost, and in some cases two minutes or more, depending on how theneck is tightened, during which time the prisoner may continue to feel pain. Moreover,in some cases, it may be accompanied by the severing of the head, especially of theinternal tissues of the neck. Hanging is problematic because of the unpredictablecourse of a prisoner's death.
Thus, the court held that, while finding that the hangings caused pain and suffering to the hanged
according to Dr. Lovell's testimony, and that the course of death was unpredictable,“It is inevitable that the death penalty will cause mental and physical pain to prisoners
and entail a certain degree of indignity. It is clear that the Constitution of Japan, inallowing for the existence of the death penalty, also considers these factors to beunavoidable and unavoidable.
... It is clear that it is not required to alleviate the subject's mental and physical sufferingto the utmost limit and to keep it to the minimum necessary, as is the case with medicalcare.
... A method of capital punishment should be evaluated as cruel only if it is inhuman orinhumane and shocks those with normal human feelings. Unless this is the case, thechoice of method is a matter of legislative discretion.

74

... Whether hanging is the best method of execution is debatable. However, those whoare sentenced to death have committed a crime that deserves it. The execution shouldbe accompanied by some mental and physical pain and suffering.”

Such a view is contrary to Articles 6 and 7 of the Covenant on Civil Liberties and ignores the progress
and achievements of international human rights to date. Furthermore, the above decision completely
lacks the perspective that "the dignity of the individual" must be respected.

5 Pain of being exposed to a cruel way of death(1) Distress of "such a way of death”
As long as people are human, it is natural that they want to die with dignity and respect. This is theguarantee of "respect for individual dignity" (Article 13 of the Constitution) and the guarantee ofhuman dignity. To die by hanging is to die in unbearable pain, and it is natural for the condemned
person to have strong feelings of "I can't bear to show such a way of death (manner of death) to others.
Such an unbearable feeling itself is suffering.
(2) Fleishman report re-cited in Asada's literature
In his book (Kou-F11), Professor Asada references "a report by Mr. Fleischmann of Erlangen, Germany,
based on his own experience and that of a British light industrialist in the French Journal of Hygiene,
Vol. 8, p. 432," as a reference to the manner in which hangings were carried out. The following are
excerpts from the report.

A. Symptoms until fainting
According to Fleischmann, there are three phases.
The first period lasts about one minute. First, the head is curt and hot. Ears ringing,eyes flashing. Next, your legs become heavy. Then you feel you are astounded.
B. Asphyxia spasm
The second stage of Mr. Bu's so-called asphyxia is characterized by intense convulsions.
The length of the convulsions may be half a minute or a minute. When the convulsions
are intense, the patient may have completely fainted. In the Bu era, doctors used theterm "clonic convulsion" to describe the beginning of these convulsions, because of thejerking and twitching. In general, however, asphyxial spasms are characterized by the75separate twitching of the hands and feet, with the left and right sides of the body
moving separately, the hands swimming through the water and the feet walking. Dr.
Shin Hayashi, a professor of physiology at Keio University, together with his students
Matsumaru, Nawa, Hamada, Sato, Mishima, Hayakawa, Suda, Okamoto, and others,studied it deeply and concluded that it is not clonic but alternating convulsion. (Article
Reflections, 7, 9, 10, 11, and 12) When the strap is long at this time, the body rotates.
When the face or limbs collide with a hard object such as a wall, a pillar, or a shoji(sliding door), scratches or subcutaneous bleeding may occur. Therefore, if there arescratches on the tip of the hangman's nose or on his arms or legs, they must haveappeared during convulsions, and the place where they were caught should be carefully
examined to determine the cause of the scratches. I have been allowed to witness
several executions in my country. In our country, a leather loop is placed around theneck and the body is thrown down with a thud for about one kilometer, so the bodyrotates only by the twisting of the long strap. In the process, I have had large and small
fecal matter scattered to the four sides by centrifugal action. I also saw an officer
waiting in the abyss, holding a fallen body tightly and not allowing it to turn around. In
any case, his face was so covered that he could not be seen. According to Mr. Bu's
description, the skin muscles of the face and the orbits of the eyes would begin to twitch,creating a severe glabrous face. Next, the upper and lower limbs twitch. When the heeltouches the ground or a wall, it is said to beat like a drum. This sound was well known
to the guards of Mazars prison in France. It is said that the number of suicide victims
suddenly increased on the day they had to obey the prison rules as a causative agent.
The prison has studied various measures to defend against this. This footstriking is also
used in strangulation. In Western apartment houses, when strangulation takes placeon the second floor, the people downstairs hear this footstriking on the ceiling.
(248) In a house with a structure like ours, if there is a strangulation on the second floor,
the people downstairs and in the next room will immediately notice the strange sound.
These alternating spasms are followed by strong convulsive twitches that cause thewhole body to flinch.
C. apparent death period (p. 16)
The third stage is the period of apparent death (248). Mr. Zwierzy says that he leaks
both urine, feces and semen at this time, at the end of his convulsions. Tardieu and Bu
disagreed with this theory. Dr. Jachman, a prison doctor, has found only two rows ofcorpses among 41 cases of suicide in Mazars Prison. However, since a well-preparedsuicidal person usually excretes the contents of his or her bladder and rectum inadvance, I cannot say that Mr. Jatkman's example applies to all of them. I have seen
several cases of this in which one of the condemned persons leaked urine. If you treat
him quickly, he will come back to life. Mr. Taylor said that he could not revive a man
who had been in the state of apparent death for five minutes, and Mr. Fall said that hecould save a woman who had been dead for seven minutes.(249) If you give artificial
respiration for two hours within ten minutes, you can revive a rabbit by giving it a few
breaths right after the last breath.

76During the convulsions, the pupils are dilated, the eyeballs protrude, and the patientmoves in a circular motion. When the convulsions cease, breathing stops temporarily.
The more severe the convulsions, the longer the patient holds his breath. The more
severe the spasm, the longer the respiration pause. This is called Matsugomae
noikidomari, but the scientific term is preterminal respiratory arrest. This is calledmatsugonoiki, or terminal respiration in scientific terminology. The so-called third
stage of Mr. Bu's practice lasts about one minute until this final breath is taken. The
heart is still beating well after that. For about 20 minutes after the hanging, the heart
is still beating, albeit faintly.

According to Prof. Asada's summary of Fleischmann's report, the objective manner of death of ahanged person, i.e., the manner of death observed from the outside, is as follows: 1. convulsions; 2.
simultaneous stretching and twitching of both hands and feet and the whole body; 3. body rotation;
4. facial muscles convulse to make a frown; 5. pupils dilate and eyeballs protrude during convulsions;
7. leaking urine and semen at the end of convulsions.
(3) Dr. Lovell's five mechanisms and changes in appearance following the execution of the hangings.
Of the mechanisms of death by hanging described by Dr. Lovell, death by injury to the medulla
oblongata or to the vagus nerve, if it were the only cause of death, would have little external effect.
However, if death is caused by other mechanisms, it is inevitable that the death will be horrific.
When oxygen deprivation of the brain occurs due to compression of the jugular vein, if blood flow in
the arteries and veins is completely stopped, there will be little change in appearance. However, if
blood flow in the veins is stopped but not in the arteries due to incomplete occlusion, the subject's
face will be congested, the tongue will protrude, the eyes will protrude, and blood will flow from theeyes, nose, ears, mouth, pores and other orifices.
If the pharynx is obstructed and the patient is unable to breathe, if the arteries are not completely
blocked, one will see blood pouring from the surface of the head. In addition, there will be repeatedgasping for oxygen, chest heaving, and leg movements as if trying to crawl up into the air. If externaldissection of the head (separation of the epidermis of the neck) is involved, the neck and torso areseparated, which in itself has a very gruesome appearance, and the area bleeds profusely. In the caseof internal dissection without external dissection, the blood that flows out of the neck eventually fills
the body cavity and then flows out through the eyes, nose, ears, and mouth. Furthermore, if the uncut
tissues of the neck are not sufficient to support the body weight, the internal tissues will gradually
become severed. If the epidermis, which is the most difficult of the body tissues to tear off, is notsevered, only the interior will be severed, resulting in an unusually long neck where the head and torso
are literally connected by the neck skin alone, and bleeding from the head.
The most frequently reported cases are incontinence and defecation of the condemned person. During77

executions, there is an outlet in the downstairs room where the condemned person falls, presumably
to wash away his/her excrement.
(4) Condemned person's thoughts and suffering
In a 2012 questionnaire for condemned persons (Kou-H1, p. 43 and following), Koichi Shoko, a former
death-penalty inmate (Tokyo Detention Center), wrote, "My tongue is broken, my eyeballs protrude,
blood flows unceasingly from my mouth, ears, and nostrils, I am hanging from a rope, spinning myself
around until death is certain, I keep convulsing, and I always imagine the time when I will die. I always
imagine the time of my death" (p. 55). The "constant imagining" of "the terror of being physicallyinjured and dying" and the thought that "I don't want to die like this, and I don't want to show it toanyone" are indeed nothing short of "suffering”.
6 Short Summary
Hanging is cruel and inhumane from two perspectives: objective cruelty from a third party's point ofview and subjective cruelty from the point of view of the person sentenced to death (the condemned
person).

VI. Hanging undermines human dignity
Hanging is cruel. Not only is it cruel and inhumane, it undermines human dignity as stipulated in Article
13 of the Constitution and the Covenant on Civil Liberties.
1 Development of the Idea of Human Dignity
1 Meaning and Role of Human Dignity
Human beings have inalienable rights as long as they are born human. By "human dignity" is meant
the innate right to be respected. Dignity means the minimum dignity that belongs to every humanbeing; every human being has dignity simply because he or she is human. Dignity cannot be acquiredor lost. Even the worst criminal still possesses common human dignity" (Brennan, J., opinion in Furman).
This "human dignity" has played a prominent role in the post-World War II world as the source ofhuman rights and the reason for their promotion. The following is a brief overview.

2 International Developments in Human Dignity(1) Charter of the United Nations (1945)

78

After the devastation of World War II, the world established the United Nations to rebuild a new world.
The Charter of the United Nations in 1945 states that “…reaffirm faith in fundamental human rights,
in the dignity and worth of the human person, in the equal rights of men and women and of nations
large and small, and..." and set "human dignity" and "the guarantee of fundamental human rights" as
new objectives for the international community.

(2) Universal Declaration of Human Rights (1948)
At the Third Session of the UN General Assembly in 1948, the UN adopted the Universal Declaration of
Human Rights. In its preamble, it states: “recognition of the inherent dignity and of the equal andinalienable rights of all members of the human family is the foundation of freedom, justice and peacein the world” and in the fifth paragraph of the Preamble also states: “Whereas the peoples of theUnited Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity
and worth of the human person and in the equal rights of men and women and have determined topromote social progress and better standards of life in larger freedom”.

(3) German Basic Law (Kou-G2, 1949)
The Basic Law of the Federal Republic of Germany, enacted in 1949 in West Germany (at that time)and after the unification of East and West Germany, stated in Article 1: "Human dignity is inviolable. It
is the duty of all state authorities to respect and protect it. Even if it is not guaranteed as a fundamental
right, any state action that violates the highest value of "human dignity" is prohibited and must be
respected and protected.
(4) Covenant on Civil Liberties (1966)
The Covenant on Civil Liberties also provides in Article 10(1) that "all persons deprived of liberty shallbe treated humanely and with respect for the inherent dignity of the human person.
(5) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(1984, Kou-G3)
The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,
which is also based on "human dignity," and states that in order to realize the guarantee offundamental human rights, it is important for States Parties to prohibit torture, etc. and to make efforts79

to realize such prohibition, and stipulates it strictly as a separate and independent treaty to guarantee
physical safety in particular.
(6) The development of the United States Supreme Court's Eighth Amendment precedent
In the United States, since the U.S. Supreme Court's 1958 Trop decision, the U.S. Supreme Court has
accumulated precedents on the 8th Amendment, including the Atkins decision in 2002 and the Lorberdecision in 2006, establishing the "evolving standard of decency that indicates progress in a maturesociety" with "human dignity" as a fundamental value. The development of precedents concerning the
8th Amendment is detailed in Takenori Aoyama, "The 'Cruel and Unusual Punishment' of the 8th
Amendment" (Nihon Hogaku, Vol. 76, No. 9, p. 287 (hereinafter Kou-G9)).

(7) Mandela Rule (2015)
In several fundamental treaties since the end of World War II, the international community hasrepeatedly and in various ways made clear that "human dignity" is the highest value and the basis for
freedom, justice, and peace. This idea has taken root not only in Europe and the U.S. but throughout
the world: 60 years after the 1955 the UN Standard Optimum Rules for the Treatment of Prisoners,
the UN General Assembly enacted the new UN Standard Minimum Rules for the Treatment of Prisoners(Mandela Rules) in 2015 (Kou-G4). In Rule 1 of the first set of Basic Principles, respect for "humandignity" was explicitly stated as a principle for the treatment of detainees, including condemned
persons.
Part 1 Basic Principles
Rule 1
All prisoners shall be treated with the respect due to their inherent dignity and value
as human beings. No prisoner shall be subjected to, and all prisoners shall be protected
from, torture and other cruel, inhuman or degrading treatment or punishment, forwhich no circumstances whatsoever may be invoked as a justification.
3 Japanese Executors
Article 13 of the Constitution of Japan, promulgated in 1946, stipulates that "All of the people shall be
respected as individuals," a constitutional guarantee that is not only based on the 1945 UN Charter but
also shares the same principle with subsequent international human rights standards (such as the
Universal Declaration of Human Rights and the Covenant on Civil and Political Rights). Around theworld, the United Nations and others have established "human dignity" as a basic principle for the80

treatment of detainees, including condemned persons. In Japan, as long as condemned persons are
human beings, the same applies to them, and their human dignity is guaranteed.

2 The Punishment of Death by Hanging
1 Violates "human dignity" by inflicting pain that goes beyond taking a life
The death penalty is the ultimate punishment for taking the life of a guilty person. The decision of theSupreme Court of Japan, March 12, 1948, holds that
Life is precious. One life is more precious than the whole earth. The death penalty is themost severe of all punishments, and it is an extreme punishment that is truly
unavoidable. It is, needless to say, the eternal deprivation of life itself, the basis ofdignified human existence.
The 1948 decision of the Grand Chamber of the Supreme Court of Japan states that the death penalty"forever deprives a human being of life itself, the basis of his or her dignified existence" andcompensates for it with "a human life heavier than that of the entire earth”, and therefore, no more
suffering than the taking of life must be inflicted on the condemned, nor must anything other than life
be taken from them. To inflict unnecessary pain and fear is to deprive the condemned of humandignity. The Covenant on Civil Liberties is also commonly understood and practiced to include therequirement that the death penalty "shall be carried out in such a manner as to cause as little physicaland mental suffering as possible" (General Comment No. 20 Article 7, Covenant on Civil Liberties).
(General Comment No. 20 Article 7 of the Covenant on Civil Liberties). It is also a modern global
standard not to cause unnecessary suffering and fear to the condemned.
More than 74 years have passed since the 1948 decision of the Supreme Court, and scientific andtechnological advances have been made, and the ethical view of life has evolved in line with the times.
Despite these advances, to allow more suffering than mere deprivation of life in this day and age istantamount to imposing a physical punishment. Although pain can be minimized, hanging, which
inevitably causes more pain than mere deprivation of life, is tantamount to physical punishment.

2 Human dignity is guaranteed to the executor.
The condemned must be guaranteed human dignity up to the time of execution and even after death.
The plaintiffs obtained from Professor Akiko Furukawahara of Ryukoku University a written response(Part 1) and (Part 2) (Kou-G5-1-2, 2-2) to their inquiry regarding the treatment of death penalty inmatesin the United States. In her written response (No. 2), Professor Furukawahara stated, "Even those whohave committed serious crimes must be treated like members of society until the moment of execution,
if their dignity is to be recognized as human beings. In a mature society, this is a natural principle. Thisis even more so when we consider that the state is forcibly taking a life.

81

Japanese condemned are notified of their execution at the last minute on the day of execution. As aresult, they are deprived of the opportunity to accept and face their death. Not only that, they are left
in the dark as to how they will meet their death. Although the condemned knows that he or she isgoing to be hanged, the specific manner of death is never made clear to the condemned person. In
order to illustrate how Japan's execution methods seriously undermine the human dignity of thecondemned person, it is useful to contrast this with the United States, where the death penalty has
been used as a means of execution.
The following is due to the valuable research results of the Furukawahara’s Response (Part 1) (Part 2)(Kou-G 5-1-2 5-2-2).

3 The Case of the United States of America
1 Death Penalty in the United States of America
The death penalty in the United States varies from state to state: as of January 2022, there are 30
states with the death penalty, three of these states have moratoria (suspension of execution). The
military retains the death penalty, while the federal government has a moratoria. Twenty-three states
have abolished the death penalty. Twenty-seven states currently use the death penalty and 26 states
do not.
2 Changes in Methods of Execution and "Human Dignity”(1) Changes in execution methods
Since 1878 (Meiji 13), the method of execution in the United States and its states has changed
dramatically, unlike Japan, where hanging has been the only method of execution up to the presentday. Starting in 1888, the State of New York changed from hanging to the electric chair, and by thetime Delaware changed its method in 1986, 40 states had abolished hanging and replaced it withelectric, lethal gas, and drugging methods of execution. As of May 2022, no state maintains the hanging
penalty. The change from hanging to other methods of execution was due to the fact that hanging is"cruel and abnormal punishment" and contrary to human dignity, as stated in the New York State
Assembly Gerry Report.
(2) Current execution method
In the 30 states that currently have the death penalty, the "less brutal" methods of execution areelectric execution, drugging, and gassing. The following table shows the current method of execution82

in each state, whether or not it has changed from hanging, the year of the change, and the method of
execution after the change (in alphabetical order, with moratorium states summarized later).

(1) Alabama (1923, replaced hanging with electric execution)
Lethal gas death, electric execution, and drug death (choice of condemned person)(2) Arizona (1933, changed from hanging to lethal gas)
Sentenced on or after November 23, 1992
Drug death
Sentenced on or before November 22, 1992
Drug death and lethal gas (at the option of the condemned person(3) Arkansas (1913, changed from hanging to electric execution)
Drug deaths(4) Florida (1923, replaced hanging with electric execution)
Electric execution and drug death (choice of condemned person)(5) Georgia (1924, changed from hanging to electric execution)
Death by Drugs(6) Idaho (1978 Drug deaths from hanging)
Drug Deaths(7) Indiana (1913 hanging to electric execution)
Death by Drugs (1913)(8) Kansas
Drug deaths(9) Kentucky (1938, changed from hanging to electric execution) Sentenced after March 31,
1998 Drug deaths(10)Louisiana (1940, changed from hanging to electric execution)
Death by Drugs(11) Mississippi (changed from hanging to electric execution in 1940)
Death by Drugs(12)Missouri (1937 Changed from hanging to lethal gas)
Drug deaths and lethal gas (not clear if the condemned person has a choice)(13)Montana
Drug deaths(14)Nebraska (1913, changed from hanging to electric execution)
Drug deaths(15)Nevada (changed from hanging to lethal gas in 1921)
Drug deaths(16)North Carolina (changed from hanging to electric execution in 1909)
Drug deaths(17) Ohio (1896, changed from hanging to electric execution)
Drug deaths83(18)Oklahoma (1913, changed from hanging to electric execution)
Death by Drugs(19)South Carolina (1912, changed from hanging to electric execution)
Drug deaths and electric executions (choice of condemned person)(20)South Dakota (changed from hanging to electric execution in 1939)
Death by Drugs(21)Tennessee (1913 hanging to electric execution)
Death by Drugs(22)Texas (1923, changed from hanging to electric execution)
Death by Drugs(23)Utah (1983 changed from shooting and hanging to shooting and drugs)
Drug deaths(24) Wyoming (1935 from hanging to lethal gas)
Drug deaths(25)California (1933 Changed from hanging to lethal gas)
Lethal gas and drug deaths (currently moratorium)(26)Oregon (1937: changed from hanging to lethal gas)
Drug deaths (currently moratorium)(27)Pennsylvania (1913: Hanging replaced by electric execution)
Drug deaths (moratorium in effect)(3) Reason for change in execution method
In these states where the death penalty exists in the U.S., execution methods have changed fromhanging to electric execution or lethal gas, then drug death (execution by injection) was added, or was
replaced by drug death. The reason for the disappearance of electric execution after the change fromhanging to electric execution and lethal gas as a method of execution was that electric execution was
also judged to be cruel. For example, the Georgia Supreme Court (October 2001) and the Nebraska
Supreme Court (February 2008) ruled electric execution unconstitutional as cruel and unusual
punishment. Furthermore, lethal gas was found not to be painless. In his "Jury Trials and Death Penalty
Sentencing (Expanded Edition)" (Kou-G8), Professor Emeritus Yoshinori Kobayakawa of Meijo
University analyzed the transition of execution methods from hanging to lethal injection in the U.S.
(Kou-G8, p. 313).

In the United States, beginning with New York in 1888, states gradually abolishedhanging and changed the method of execution to electric execution and lethal gas, etc.
Later, however, all of these methods were considered cruel, and today lethal injection84

is used in almost all areas of law as the least painful and most humane method of
execution according to current science.

However, in recent years, due to the inability to import drugs from the EU for use in executions, some
executions have been carried out by electric means. In the U.S., it is clear that execution methods arebeing changed from the standpoint of human dignity, i.e., whether or not the method of execution is"the least painful and most humane today based on current science.”

3 Explanation of the method of execution (execution method) and human dignity
It is important for the dignity of a person scheduled to die to have his or her death explained to him or
her and to die with an understanding of how he or she will die. For a person who is scheduled to die,such as a severely terminally ill patient who is dying, not knowing how he or she will die can cause
anguish, fear, and anxiety, and increase suffering. Therefore, it is customary for severely terminally illpatients to have their death fully explained to them by their physicians. If the patient receives anadequate explanation, such anguish, fear, and anxiety are eliminated or reduced. The fact that theinterest in receiving such explanations derives from the guarantee of human dignity (Article 13 of theConstitution) is recognized by court decisions concerning the notification of life expectancy and thename of the disease.
The same is true for a person sentenced to death as for a severely terminally ill person, who has thesame interest in receiving an explanation of the manner of his or her death. This is evident in thesituation of death-row inmates in the United States.
(1) Disclosure and explanation of the method of execution of the death penalty (Description of
explanation)
In states where the death penalty is carried out in the U.S., information on various executions is widely
available to the public, including the inmates. The Furukawahara Report clarifies, on a state-by-statebasis, what information is disclosed in the states where the death penalty is carried out in the U.S.
(Kou-G5-1-2). We explain on examples from three of these states.
1. Alabama 5
In Alabama, the condemned person is given the opportunity to choose between electric or nitrogenhypoxia, and if he or she does not choose this option, the execution is carried out by lethal drug
administration. Although the execution procedure is blacked out in several places, the details of theflow of events on the day of execution can be understood, as well as the type and amount of drug
used to administer lethal drugs.
5

https://files.deathpenaltyinfo.org/documents/AL-Execution-Protocol-April-2019.pdf

85

One week prior to the scheduled execution date, equipment and drugs are prepared when lethal
drugs are to be administered, and check the veins of the executed person. The electric chair ischecked three times (execution procedure VI). The flow of events on the day of execution is asfollows (under Procedure IX-H).

H. The condemned is taken to the execution room by the execution team and thensecured to a stretcher.

1. If the execution is to be carried out with lethal drugs, the IV team is escorted to the
execution room. A cardiac monitor line is attached to the definite. If the vein is in acondition that precludes administration, a central line for venous access will be
provided.

2. If the execution is carried out by electricity, the condemned is taken to the execution
room and placed in a chair at approximately ■. The condemned is immobilized withelectrodes attached to his left leg and head.
J. Witness (abbreviated)
K. the confirming official informs the facility director that the execution is ready totake place. If the execution is to be done by lethal drugs, the IV team completes its
task and ■. At this time, the facility director reports to the execution area. The IV teaminforms the facility director of the status of ■. The curtains in the witness room areopened.
L. The facility director enters the execution room. Switching on the microphone, thefacility director reads the warrant to the confirmand.
M. The condemned is allowed to say a few last words. The words must be limited toapproximately two minutes.
N. The director and ■ go from the execution room to ■. Two members of theexecution team will remain in the execution room until the director is informed.
(Note that ■ is the state's current procedural provisions as they appear.)
After confirming that no suspension order has been issued, two staff members make a final check of
the restraining straps, if it is an electric chair execution, and place headgear on the subject and cover
his/her face (Procedure IX-O-2). The facility manager then presses a button and a 2200 volt current
flows through the subject's body for 20 seconds. The current is lowered to 220 volts for the next 100
seconds (procedure IX-P-3).
On the other hand, in the case of lethal drug administration, a predetermined amount of the drug is
injected according to the following procedure (Executive Procedure IX-P-1, 2)

86

1. In the case of lethal drug administration, the facility director initiates the administrationof the lethal drug solution to the definite person. The lethal drug solution consists ofa. 100 ml midazolam hydrochloride - two 50 ml syringes
b. 20 ml salinec. 60 ml rocuronium bromide
d. 20 ml saline solution
e.120 ml potassium chloride - two 60 ml syringes
2. In the case of lethal drug administration, after the facility director has administered 100
ml of midazolam hydrochloride and 20 ml of saline, and before administering the second
and third drugs, one team member remaining in the execution room should assess thedefinite's consciousness by administering the following stepwise stimuli. The teammember first calls the definite's name. If there is no answer, the team member gently
strokes the eyelashes of the definite. If there is no answer, the team member pinches thedefinite's arm.
In the rare case that the definite is conscious, the facility director uses 100 ml of
midazolam hydrochloride in a spare syringe to administer the dose. After all 100 ml of
midazolam hydrochloride and 20 ml of saline have been administered, the team member
remaining in the execution chamber repeats the above stepwise stimulation.
If a second IV line is used for midazolam hydrochloride, that line is used for the remaining
drug administration.
After confirming that the definite is unconscious, it is recorded and the facility director
continues to administer the second and third drugs.

2. Kentucky 6
Inmates sentenced to death prior to March 31, 1998 may elect to be executed by electricity. Detailsof the electric execution procedure are as follows (Execution Procedures 501 KAR 16:340).

Section 1. preliminary steps(1) The prison shall provide at least three telephones that can be used simultaneously tocommunicate with the court and defense counsel on the day of execution. (2) The warden
shall determine the availability of the necessary telephones prior to the execution.
(2) The electrocution device shall be designed to deliver approximately 5 to 10 amperes atthe designed voltage, depending on the size of the person to be executed.
(3) The electrocution device shall be inspected and tested in accordance with 501 KAR
16:320, Section 3(3) within 48 hours of the scheduled time of execution by electrocution.

6

Kentucky Administrative Regulations, KAR Chapter 16, provides.
https://casetext.com/regulation/kentucky-administrative-regulations/title-501-justice-and- publicsafety-cabinet-department-of-corrections/chapter-16-capital-punishment
87(4) Sodium chloride solution shall be prepared by a member of the execution team at least
5 hours prior to the scheduled time of execution by electrocution in the following manner(a) Fill the container with room temperature water, approximately 5 gallons.
(b) Slowly add up to 128 ounces of iodized table salt to the water, stirring continuously,
until the water visibly absorbs no more salt. The salt is considered to be dissolved to thelimit when it does not dissolve in the water and remains in a visible pool at the bottom of
the container.
(5) Natural sponges for head and leg electrodes shall be prepared by soaking them in a
sodium chloride solution until saturated.
(6) If there is no electricity in the prison at the scheduled time of the execution, thegenerator in the execution building shall be started.
(7) On the day of execution, the head and one leg of the executed person shall be shaved.
(8) The warden shall order the condemned person to be escorted to the execution roomand tied to a chair.
(9) The facility director shall order the opening of the curtains.
(10) The director shall inform the observer of the execution.
(11) The director shall ask the executor if he/she wishes to make a final statement andshall give him/her at least two minutes to do so. (12) The witness may hear the statementof the executor.
(12) The warden shall inform the witnesses of the final preparations for the execution.
(13) Curtains shall be closed.
(14) Members of the execution team shall(a) Attach a chinstrap to the enforcer.
(b) Attach the headgear to the enforcer.
(c) Attach leg straps to the enforcer.
(d) Adjust the backboard.
(e) Attach the cables from the electroshock device to the head and leg electrodes. The
nuts shall be fully tightened and securely connected.
(f) Wipe off any salt water from the sponges on the enforcer's head and legs. (g) Fasten
the leather face cover to the subject.
(15) The facility manager shall visually inspect the connections and straps.
(16) The execution team exits the execution room.
(17) Open the curtains.
(18) The facility manager shall(a) announce the execution of the executed person to the witnesses; and(b) Place a face cover over the face of the condemned person.
(19) Persons other than the executor shall leave the execution chamber.
(20) Counsel designated by the cabinet and counsel designated by the attorney generalshall ask whether the sentence has been suspended, ordered, pardoned, or commuted.
Section 2. Execution of Sentence(1) The warden shall order the execution to proceed.
(2) The execution device shall be activated in two-minute cycles. The cycle shall be as
follows(a) Approximately 2400 volts for 15 seconds.
(b) Approximately 240 volts for the remaining two-minute cycle.

88

(3) When the facility director finds evidence of malfunction, the cycle shall be terminatedby using the stop button on the electrical equipment.
(4) At the end of the two-minute cycle.
(a) Close the curtains.
(b) The facility director will observe the subject's vital signs (including, at a minimum, pulse
and respiration) for 5 minutes.
(5) If the facility director sees a vital sign during the 5-minute observation period(a) opens the curtains; or(b) The facility director shall order a repeat performance of the execution cycle insubsection (2) of this section. (6) If the facility director again sees a life reaction, theexecution is suspended.
The Commissioner will contact the Governor's Office and request that the execution besuspended. (7) If the facility director does not observe a vital signs reaction.
(a) The coroner checks the subject (including pulse and pupils) and pronounces death.
(b) The physician certifies the cause of death.

3. Tennessee 7
In Tennessee, a person convicted of a crime and sentenced to death before January 1, 1999, may electto be executed by electricity by signing a document waiving the right to be executed by lethal
injection.8 In fact, the number of persons who have elected execution by electricity reached five in the
16 months ending in February 2021.9 9. It is believed that the lethal drug deaths are so painful,depending on the type of drug used, that the electrocution method was chosen in search of a lesspainful way to die. The procedures require that the executor, who has a choice of execution methods,
be informed 30 days prior to the scheduled execution date. An executor who waives the right to be
executed by lethal injection signs an affidavit that reads as follows:10 Once waived, it can be revoked
by informing the facility director at least 14 days before the execution date and signing a new affidavit
to that effect.

7

Lethal Injection Execution Manual, Execution Procedures for Lethal Injection(Rev. July 5, 2018) https://files.deathpenaltyinfo.org/legacy/files/pdf/TN%20LI%20Protocol%207 -518.pdf
8From Tenn. Code Ann. § 40-23-114(b). Note that the execution procedures refer to "an inmate
sentenced to death before January 1, 1999," and we have contacted the Death Penalty Information
Center because of the discrepancy in the definition. However, this discrepancy does not affect thecontent of this response.
9

https://apnews.com/article/7121e608498fe4c24359035853801ff3

10

Execution Procedure p. 92

89

Affidavit Concerning Method of Execution
Under Tennessee law, you have the right to be executed by lethal injection. You may also
waive this right and choose electrocution as the method of execution. The purpose of thisaffidavit is to give you the opportunity to waive your right to lethal injection or to refuse towaive your right. If you do not complete this form, the execution will be by lethal injection.
This is the only time you may waive your right to lethal injections. If you waive your rightto lethal injections, you may revoke it by notifying the facility director and signing a new
affidavit at least 14 days before the execution date.
I, (name), TDOC number (number), make the following selections regarding the method of
execution scheduled to take place on (date)(check box) I waive my right to be executed by lethal injection and elect to be executed byelectricity.
Signature.
(check box) I waive my right to night execution for the administration of lethal drugs
I have been given the opportunity to do so and waive my right to do so.
SIGNATURE
This affidavit has been affirmatively presented to the inmate (name) TDOC Number(number), and(check box) The inmate has refused to sign.
(check box) I certify that the inmate has signed this affidavit.
Signature of Warden

The flow of the day of execution is described in minutes as follows
5:00 p.m. The executor is made to change (cotton pants, shirt, socks and indoor shoes).
6:30 to 45 p.m. Witnesses enter the room.
7:00 p.m. The condemned person is handcuffed and placed on a stretcher. The
condemned person is placed in the execution room. 7:10 a.m. The condemned person isallowed to say his last words.

Also noteworthy is the attached drawing of the execution unit, including the execution chamber.

90

In Japan, with the exception of the Tokyo Detention Center, there is no public access to execution sites
in other detention centers or prisons (as noted above). In particular, nothing is made public at the
Osaka Detention Center, which is the subject of this case.

(2) Disclosure of information on the method of execution to the executor
According to Furukawahara's written response (No. 1) (Kou-G5-1-2), several states have clarified theextent to which details of the execution method are provided to the inmate.
For example, in Idaho, the condemned person is informed in writing that he or she will be carried tothe execution chamber on a stretcher for the administration of lethal drugs, that he or she will be givena saline drip, and that his or her eyes may be covered during the execution. In addition, a liaison officer
is appointed to meet with the inmates on a daily basis to respond to their requests and questions. The
State of Alabama also specifies in its execution procedures that the director of the facility should
endeavor to answer any questions the definite may have about the execution.
A respondent in the United States may know in detail how the sentence against him or her will be
carried out. This is not limited to states that offer a choice of execution methods. Even in states where
lethal injection is the only method of execution, the inmate has the opportunity to know what drugs
will be administered, how much, and how his or her body will be restrained during the administrationof those drugs. In states with the death penalty in the U.S., the condemned person may "choose a less91

painful method of execution," within the limits of the established death penalty system. They can also
receive an "explanation of the method of execution" for themselves.

4 Choice of Execution Method and Human Dignity
The manner in which one dies is a fundamental part of human dignity. The ability to choose the methodof execution is a factor in ensuring human dignity. In states with the death penalty that provide formore than one method of execution, the condemned person can choose how he or she wants to die.
They are informed about the execution and have the opportunity to choose their own method of
execution. In the following states, the executor can choose how he or she dies and the manner of
execution, even if death is the inevitable result. This is an indication that the executor is respected asa human being and that "human dignity" is guaranteed.
Alabama, Arizona, Florida, Kentucky, South Carolina, South Dakota, Tennessee, Utah,
California (under moratorium)
5 Differences from Japanese Executors
In states where the death penalty is carried out, the method of execution has shifted from hanging toless painful methods such as electrocution, gassing, and drugging. States with multiple methods ofexecution allow the inmate to choose the method of execution. In addition, the condemned person
and the public are provided with a detailed explanation of the method of execution, including theprocess. Condemned persons are respected as human beings at the moment of death and even after
death, and their human dignity is guaranteed.
On the other hand, Japanese condemned persons are still deprived of life by the barbaric method of
hanging, based on the Dajokan (Grand Council of State) Proclamation No 65 , which was enacted in the
19th century. The pain and suffering caused by the execution of hangings is considered to be
acceptable, rather than being improved to a less painful method (Kou-C6, the first trial decision in the
Konohana Pachinko parlor arson case). In the 74 years since the Supreme Court ruled in 1948 that thedeath penalty is constitutional, there have been no signs of revision or improvement. The only
explanation given to death-penalty inmates in Japan by the detention centers is the "Guide to Life on
Death Row" (Kou-F17). They are taken to the execution site one day and suddenly killed without any
explanation of how they will be hanged.
There is no fact of "being treated as a human being," and the enforcer does not have a subjective
awareness of being treated as a human being.
This gap between the U.S. and Japan is a major difference in whether "human dignity" is guaranteed
or not.
Japanese death-penalty convicts are not guaranteed "human dignity" under Article 13 of theConstitution.

92

4 Injury to the Body and Human Dignity
1 Death that disfigures the appearance of the body violates human dignity.
When discussing human dignity, the presence or absence and degree of physical injury are importantfactors. Execution of punishment that causes physical injury constitutes cruel and degrading
punishment as prohibited by Article 7 of the Covenant on Civil Liberties.
Human dignity is closely related to the preservation of one's appearance. The problem becomes more
apparent in the terminal stage of a patient's life, since the patient often loses his or her appearance.
Therefore, there are similarities between the dignity of patients at the end of life and the dignity ofthe executed person (Furukawahara, Answer (No.2) Kou-G5-2-2). Maintaining the appearance of thedeceased not only preserves the dignity of the deceased, but also plays a role in grief care for the
bereaved family. For example, the perfuming of the deceased's body after death prior to the funeralservice is an example of this. Angel makeup and angel care are also acts that protect the dignity of thedeceased against changes in appearance that occur after death, as they are performed to restore facial
features to the extent possible that were lost due to invasion by medical treatment or illness.
The Penal Code provides that "anyone who destroys, abandons, or seizes a corpse, remains, hair, or
any object contained in a coffin shall be punished with imprisonment for a term not exceeding three
years" (Article 190). The object of protection for this crime is considered to be the corpse, remains,
hair, or other objects stored in the coffin, a type of crime that protects the (social) pious feelings toward
the deceased (Ryuichi Hirano, "Criminal Law", 1977), and a type of crime that protects religious feelings
rather than property (Danto, "Criminal Law Treatise, 3rd ed.", 1990). The crime of destruction of acorpse is a crime based on the protection of religious feelings, not on the protection of property. The
crime of destruction of a corpse protects society's demand to treat a corpse with respect even after
death.
There is also a sense of the need to avoid the destruction of corpses and methods of killing that
inevitably result in their destruction. In other words, a sense of reverence for the human body, both
before and after death, has been maintained throughout history. This is of great significance to humandignity.
The "body" (corpse or remains) exists as proof of human existence. There is a social consensus, notonly in Japan but also in the rest of the world, to respect the human body, especially to avoid damaging
the body as much as possible before death, and to make efforts to restore the body after death if it isdamaged, in order to maintain human dignity.
2 Desecration due to significant physical damage
Hanging, however, is a violent assault on the body of the condemned person. The internal muscles of
the condemned person's neck are severed by hanging. The damage to the corpse, especially from theneck up, is significant (as evidenced by the photographs in Kou-A4-1 to 4). In some cases, the neck issevered or even completely dismembered, which is a ghastly result. Hanging is not only cruelty in thatthe victim is killed by being tied by the neck with a rope and sent falling through the air, but also
inevitably involves the desecration of the body itself in that the body is cruelly injured.

93

In the United States, the use of other execution methods in place of hanging has avoided damage tothe corpse (body). On the other hand, in Japan, where hangings inevitably cause physical damage, theexecution of hanged criminals inevitably seriously undermines human dignity.

5 Dignity of Japanese Condemned persons Does Not Extend to Animals to be Killed
1 Treatment of Condemned persons by the Japanese Ministry of JusticeJapan (Ministry of Justice) treats the condemned person not as a human being but as an object to be
executed (killed). It is no different from the killing of dogs and cats; in fact, it treats them with morecare than dogs and cats. They do not treat the executed person as a human being who should retain
his/her dignity.
Mr. Hiroshi Sakaguchi, a respondent to a questionnaire conducted by Forum 90 with Mr. Mizuho
Fukushima, a member of the House of Councilors, on death penalty inmates (Kou-G7), described thesituation in vivid detail and likened executions by hanging to the killing of dogs and cats (Kou-G7, pp.
168-169).
The prison guard opens the door to the room of the convicted person, announces theexecution, takes the convicted person into custody, and immediately takes him to theprison. Inside the prison, the warden is waiting, who officially announces the execution.
After the execution, the convicted person is bound, handcuffed, and taken to the
execution table dressed as he is, where he is hanged by a noose, the treadle is removed,
and he is hanged to death. < omitted>... However, the current execution procedures do
not take into account the convenience or rights of the condemned and speed theexecution as if it were a dog or a cat to be killed. And they claim to be following due
process.

2 From "Human Dignity" to "Dignity of Life”
Are the death sentences for those on death row in Japan at least as severe as the culling for dogs andcats? Unfortunately, this is not the case. A look at the animal protection legislation makes this clear. In
Japan, the "dignity of life" of animals is also legally recognized. Article 2, Paragraph 1 of the Law
Concerning the Protection and Management of Animals (hereinafter referred to as the "Animal
Protection Law") stipulates as a basic principle that "in view of the fact that animals are living beings,
no person shall kill, injure, or cause suffering to animals unnecessarily, but shall also treat animals
properly in consideration of their habits and in consideration of the symbiosis between humans andanimals. In addition, they shall take into consideration the symbiosis between humans and animals,
and handle them appropriately in consideration of their habits.
Article 40 of the same law stipulates the following methods for culling animals: Paragraph 1: "If animals
must be killed, it shall be done in a manner that causes them as little pain as possible," Paragraph 2:

94

"The Minister of the Environment may, in consultation with the heads of relevant administrative
organs, determine necessary matters concerning the methods set forth in the preceding paragraph,"and Paragraph 3: "In determining necessary matters set forth in the preceding paragraph, efforts shallbe made to give due consideration to international trends concerning the methods set forth inparagraph 1.
3 Specific methods for killing dogs and cats (Ministry of the Environment Notification No. 105)
The Ministry of the Environment, in accordance with Article 40 of the Animal Protection Law, sets forth
its basic position on the killing of animals in its "Guidelines Concerning Methods of Killing Animals(November 12, 2007, Ministry of the Environment Bulletin No. 105)" (Kou-C 7).

1 General Principles
In the event that an animal must be killed, the caretaker and the person carrying out
the killing must understand the physiology, ecology, habits, etc. of the animal to be
killed and, based on the principle of respect for the dignity of life, endeavor to use
methods that do not cause pain to the animal and to prevent infringement on human
life, body or property, or damage to human living environment caused by the animal
to be killed.

The guideline is based on the principle of respecting the dignity of life, even for animals such as dogs
and cats. The Guidelines also require that "the disposal of animals shall be conducted in a manner that
does not cause pain to the animal".
Notification 1(4) defines "distress" of an animal to be killed of as "pain caused by painful stimuli andstates of anguish, fear, anxiety, and depression caused by nerve center excitement, etc.". The term
"pain" includes not only painful stimuli (pain) but also "states of anguish, fear, anxiety, and depression"and requires that such "pain" not be inflicted on the animal.
The "No 3 method of culling of animals" shall specify that "the method of culling of animals shall be bychemical or physical methods that cause as little pain as possible to the animals to be killed and that
render the animals unconscious, irreversibly arrest their cardiac or pulmonary functions, or by othernormal methods that are acceptable to society”.
The Ministry of the Environment's "Take-back and culling of Dogs and Cats" (Kou-G8), " in accordancewith the Ministry of the Environment's Notification No. 105, stipulates that:
3 Appropriate methods for culling of animals
Different methods of killing are used depending on the quantity of animals disposed ofand the characteristics of each individual. In addition, each method should beconstantly improved in accordance with advances in technology and knowledge, witha view to reducing physical and mental suffering.

95

Anaesthetic drugs, etc.
Injection
Oral
DisposalvolumeMajority
Minority

△
◎

○

◎

carbondioxide
(gas)

◎
△

※

Carbon dioxide: Careful consideration should be given to adjusting theconcentration. (If it is difficult to adjust the concentration, anesthetics may be used.)
Anesthetics: It may be difficult to maintain retention and ensure safety.
Oral anesthetics: Used in some municipalities, but not approved as veterinary drugs.
And dogs and cats are to be killed by carbon dioxide or anesthetics (injection or orally)
from the "viewpoint of reducing physical and mental suffering”.

4 Divergence between Dajokan Proclamation No. 65, which regulates hanging, and the Ministry of
the Environment Announcement, which regulates culling.
Hanging was established as a specific method of execution by the Dajokan Proclamation No 65 in 1876.
The methods of execution prescribed by the said Proclamation cause distress (including states ofanguish, fear, anxiety and depression) to the enforcers.
On the other hand, according to Notification No. 105 of the Ministry of the Environment, animals areto be killed by methods that do not cause distress (including anguish, fear, anxiety, and depression) to
the animals. This is because "we strive to use methods that do not inflict pain on the animal, based on
the principle of respect for the dignity of life. Even in the killing of animals, the dignity of life isrespected and efforts must be made to use methods that do not cause pain. The discrepancy between
the Ministry of the Environment's Notification No. 105 on the culling of animals and the Dajokan
Proclamation No. 65 of 1873, which does not give any consideration to the alleviation of suffering of
the condemned, is staggering.
Japanese condemned are not treated like animals (dogs and cats). Japanese condemned persons whoare executed by hanging are no better than animals. Not only are they not respected as human beings,
they are not even respected for the "dignity of life" as living creatures (animals).

6 Illegal violation of human (individual) dignity
People are respected as human beings as long as they are born human beings. The same is true evenfor those who are executed. In Japan, however, executioners are given death by hanging, the only
method of execution that can end a person's life, and are subjected to unnecessary suffering in the
final stage of their lives, without any guarantee of their dignity and respect as human beings. The gap
between the U.S. and the U.S. executions is obvious.

96

Japanese executioners do not respect the dignity of human beings, or even the dignity of life (living
creatures), which is respected even in the killing of dogs and cats. The defendant (the Ministry ofJustice) treats executioners not as human beings, but as no better than animals (dogs and cats). The
inhumane treatment of executioners in Japan violates human dignity guaranteed by Article 13 of theConstitution and the Covenant on Civil Liberties.

VII. Illegality of Hanging in Japan - Summary
1 Hanging in Japan does not meet the minimum pain test - violation of the Covenant on Civil
Liberties
Japan's only method of execution, hanging (Article 11 of the Penal Code), is a cruel and inhumane
punishment that is likely to cause more physical and mental suffering than necessary, as prohibited by
Article 7 of the Covenant on Civil Liberties.
The death penalty is essentially intended to deprive the offender of life, not to inflict mental or physicalsuffering. It is not a punishment that aims to inflict commensurate suffering, no matter how horrific
the perpetrator's crime may have been or how much pain he may have caused the victim.
Article 7 of the Covenant on Civil Liberties requires that, in the execution of punishment, the sufferingof the executioner should be kept to a minimum. Punishment that inflicts more than the minimum
necessary suffering is an illegal measure that violates Articles 7 and 6 as cruel and inhuman treatment.
If, as the Furuhata opinion states, Japanese hangings 1) cause instantaneous unconsciousness, 2) do
not damage the corpse, 3) are the most painless and easy way to die, and 4) do not leave a sense of
cruelty even after death, they would not violate the Covenant on Civil Liberties. However, as we haveseen, the current hangings cannot predict or control the mechanism of the executioner's death. As aresult, it is a punishment that inevitably inflicts more suffering than necessary on the executioner, and
it is clearly contrary to the Covenant. The first instance court decision in the Konohana pachinko parlor
arson case justified the mental and physical suffering that inevitably accompanies the execution of a
hanging sentence by stating that a certain degree of suffering should be tolerated since the defendantcommitted a serious crime. In addition, the court of appeals in the same case (Osaka High Court, July
31, 2013) ruled that the method of execution of the death penalty, which is the ultimate punishment
for taking away life, was based on the Dajokan Proclamation No. 65 of 1873, 140 years ago, eventhough it is a matter of law, and that there were numerous discrepancies regarding the specific methodof execution, without establishing a new law. The court also stated that the current method of
execution, hanging, does not cause unnecessary physical or mental suffering to the condemned, andtherefore, the court ruled the hanging to be constitutional. The Supreme Court, Third Bench, in its
decision of February 23, 2008, made no specific reference to the cruelty of hanging, but only statedthat the death penalty, including the method of execution, does not violate the provisions of theConstitution in light of previous precedents. The first trial court's finding that "it is inevitable that thedeath penalty inflicts mental and physical suffering on prisoners and entails a certain degree of cruelty"

97defeats the purpose of the death penalty and permits "mental and physical suffering and a certain
degree of cruelty" to be inflicted. The decisions of the Court of Appeals and the Court of Final Appeal
that accept this holding are in direct contravention of Articles 6 and 7 of the Covenant on Civil Liberties.
2 Hanging in Japan violates the human (individual) dignity of the condemned
In addition to the gruesome nature of the execution itself and the unavoidable suffering that exceeds
the minimum, Japan's hangings do not allow for complete control over the mechanism of death
resulting from the execution, and may cause severe damage to the body after the execution. It is aninhumane punishment that seriously undermines the human dignity and personal dignity of theexecutioner, and falls under the category of "degrading punishment" of the executioner as stipulated
in Article 7 of the Covenant on Civil Liberties, as well as "arbitrary deprivation of life" prohibited by
Article 6 of the Covenant, which is illegal.
3 Hanging in Japan is also contrary to Articles 13 and 36 of the Japanese Constitution
The "cruel and inhumane punishment" absolutely prohibited by Article 36 of the Constitution of Japan
should be understood synonymously with the "cruel," "inhumane," and "degrading" punishment
prohibited by Article 7 of the Covenant on Civil Liberties. The prohibition of cruel, inhuman, anddegrading punishment stipulated in the Covenant on Civil Liberties is a concrete legal norm that all
parties must comply with as a universal value standard that does not change regardless of differencesin legal systems and cultural backgrounds.

Article 13 of the Constitution of Japan provides that "All of the people shall be respected as individuals.
The rights of the people to life, liberty, and the pursuit of happiness shall be respected to the fullest
extent in legislation and in all other governmental affairs, provided that such respect is not contrary to
the public welfare. Even in situations where the state exercises its penal power, the personality anddignity of the person executed must be respected to the utmost. Rather, it is the ultimate deprivationof life, the source of human dignity, that requires the utmost respect. Executions that disrespect thepersonality and dignity of the executioner constitute inhuman and degrading punishment prohibitedby Article 7 of the Covenant and arbitrary deprivation of life prohibited by Article 6 of the Covenant.
As already noted, hanging, the current method of execution in Japan, is a gruesome form of executionthat severely diminishes the "state of death" of the executed person, and is an unavoidable method of
inflicting bodily harm that violates posthumous dignity and is visually repulsive. If the sole purpose ofpunishment is deprivation of life, suffering must be minimized as much as possible, and a peacefuldeath must be ensured as much as possible. Nevertheless, the current practice of hanging, which
inflicts excessive terror on the condemned in advance and forces him or her to endure pain andgruesome conditions at the time of execution and inevitable posthumous bodily harm that violatesdignity, is impermissible because it constitutes "degrading punishment" of the condemned, as
prohibited by Article 7 of the Covenant on Civil Liberties.

98

The U.S. Supreme Court has used "evolving standards of decency that mark the progress of a maturing
society" in reviewing the cruel and unusual nature of punishment prohibited by the Eighth Amendment
to the U.S. Constitution (Trop v. Dulles, 356 U.S. 86 (1958) (Kou-G9)). Trop v. Dulles, 356 U.S. 86 (1958)(Kou-G9). In Furman v. Georgia, 408 U.S. 238 (1972), in which the constitutionality of the death penalty
was questioned, several judges, after considering the basic concept of the Eighth Amendment as
human dignity, stated that the death penalty is an arbitrary punishment that undermines humandignity in light of the above standard (Kou-G1).

The 1948 decision of the Supreme Court also pointed out that a situation could arise in the future inwhich a method of execution that was considered appropriate at a certain time could be interpreted
as generally considered cruel from a humanitarian standpoint, in violation of Article 36 of theConstitution, which prohibits cruel and unusual punishment, as time and circumstances change. The
standard for examining whether or not an execution constitutes cruel and unusual punishment
prohibited by law is not fixed, but rather assumes a dynamic standard that evolves in response tochanging times and circumstances, a standard that is shared by the Supreme Court of the United States.
In the current era and environment, the most universal concept in assessing whether a punishment iscruel, inhumane, or degrading to the offender is the standard set forth in Article 7 of the Covenant on
Civil Liberties. Current forms of hanging, which go beyond the deprivation of life, inflict unnecessary
physical and mental suffering on the executioner, and fail to preserve posthumous dignity by damaging
the body, are illegal as cruel, inhuman, or degrading punishment that does not meet the minimum
necessary pain test required by Article 7 of the Covenant. It is so. As such, the hanging is also in
violation of Articles 36 and 13 of the Constitution of Japan in light of modern standards of decency.

VIII. Plaintiffs' Damages - Fear of Execution by Hanging
1 The pain of not having an explanation for the hanging
The condemned person does not know where and how the hanging will be carried out, what kind ofphysical damage will be inflicted, what will happen to his or her body, what kind of pain will he or she
suffer, what will he look like hanging from a noose after death, how will his or her body be disposedof, and so on. In states with the death penalty in the U.S., when an execution order is issued, thedepartment in charge of executing the death penalty gives a detailed explanation to the offender about
the process of completing the execution. This includes an explanation of the method of execution(drugging, lethal gassing, or electric execution). The person sentenced to death may not be convincedby the explanation given by the authorities, but he or she can understand it.
On the other hand, Japanese death-row inmates, who are hanged without any explanation, are left ina state of mischievous anxiety and anguish, contrary to their understanding. The pain caused by this isheavy and daily.

99

2 Thoughts of a death-penalty convict
How do death-row inmates feel about the prospect of being hanged? To find out, it is useful to look at
the results of past death-row inmates' questionnaires. The results of several surveys of death-row
inmates have been made public. Kyodo News reporter Daisuke Sato conducted the following
questionnaire survey of death penalty inmates between September and November 2012, and theresults are available here. (Report: Death Penalty (The Realities of the Death Penalty Concealed by the
Ministry of Justice)" (Kou-H1, p. 43 and following).

From September to November 2012, Mizuho Fukushima, a member of the House ofCouncilors of the Social Democratic Party (SDP), sent a questionnaire to all 133
convicted death penalty inmates (at the time), and received responses from 78 of them.
When conducting this questionnaire, I was involved in the process of deciding thequestions to be asked, as I belonged to the investigative reporting team (special
reporting office) of Kyodo News at the time.
(Kou-H1, p. 43)
The questionnaire was ... on a single sheet of A3 paper, with a question and answer
section on the front and back of the form. Following the columns for name, place ofdetention, etc., the following questions were asked, with a space for each answer.
(1) Whether or not a request for retrial is made(2) Feelings toward the victim(3) Would you like to be notified in advance of the execution (if so, how far inadvance)?
(4) Should the method of execution be reviewed?
(5) Views on the introduction of life sentences and the death penalty(6) Opinions about visits, correspondence, medical care, etc.
(Kou-H1, p. 45)

The questionnaire asked the question, "Should the method of execution be reviewed? Sato describes
the results of the question item 4 under the subheading "Fear of Execution by Hanging" as follows.
“Furthermore, when asked about the method of execution, 44 of the 78 respondents
wanted a review. The rejection of the current hangings is evident in such comments as"(Hanging) is the most barbaric and inhumane way to kill people" (Seijiro Yamano,convicted of two robberies and murder, in Osaka Detention Center).”(Kou-H1, p. 54)

100

It shows a strong rejection of hanging. The survey revealed that nearly half of the respondents wantother options. According to Sato, more than half of the death-penalty inmates who responded to thesurvey wanted to switch to drug injection. In addition, the following is a list of responses from deathpenalty inmates regarding drug injection.

Twenty-five of the 44 requested that the method of execution be changed fromhanging to the drug injection method used in the U.S. The other 44 requested that themethod of execution be changed from hanging to drug injection, which is the method
used in the U.S.
Takeo Inokuma, a death-row inmate who experienced general anesthesia during acancer operation, asserts that "drug injections are the best”. Masataka Kurayoshi, arobber and murderer on death row at the Fukuoka Detention Center, also stated, "I candie in three to four minutes even if I am hanged, so there is nothing wrong with it, but
if you think about it from the human heart, I think I suffered for decades before my
execution and I am making amends, so I think a drug injection is better”. One
respondent suggested that "push the switch for drug injection himself" in order toreduce the burden on the prison officers who actually carry out the executions. (former
executive staff of Aum Shinji Miyamae, formerly Kazuaki Okazaki)(Kou-H1, pp. 54 and 55)

Based on the results of the questionnaire, Sato points out the following rejection of the hanging
penalty common among those sentenced to death, and then introduces the words of Koichi Shoko.

“However, a common thread that runs through the calls for a review of execution
methods is the rejection of hanging.
Koichi Shoko, a Tokyo prisoner accused of robbery and murder of two housewives in
Kanagawa Prefecture, said, "my tongue is broken, my eyeballs are poked out, blood ispouring from my mouth, ears, and nostrils, and I am hanging from a rope. I always
imagine the time of my death. I always imagine the time when I will die”. Shoko, who
had expressed her fear that the execution would be carried out without any physicaldamage to her body, will stand on the gallows on August 2, 2019.”(Kou-H1, p. 55)

Along with the fear of being hanged, Shoko's fear of being hanged is, above all, that of "being hangedby the neck and hanging from a rope, my body being cruelly damaged, and I don't want to die this way.
This is a sentiment shared by all death-row inmates.

101

3 Short summary
The fear of "breaking my tongue, my eyeballs popping out, blood flowing unceasingly from my mouth,
ears, and nostrils, and being hung from a rope, spinning myself around and convulsing until death iscertain, always imagining the time when I will die. As is clear from the answers to the questionnaire(Kou-H1, p. 43 and below), the defendant has continued to inflict a sense of fear on death-row inmates
and their small but sincere wish to "at least die as a human being" has taken away by force.
The Ministry of the Environment's "Guidelines Concerning Methods of Killing Animals (Ministry of theEnvironment Notice No. 105, November 12, 2007)" (Kou-C7) states that "the principle is to respect the
dignity of life" even for animals such as dogs and cats. It also requires that "the animal be treated in amanner that does not cause it pain. Distress" includes not only mere painful stimuli (pain) but also"states of anguish, fear, anxiety, and depression," and requires that such distress not be inflicted on
the animal. The "states of anguish, fear, anxiety, and depression" that the above-mentioned deathrow inmates experience on a daily basis are "unacceptable acts even for animals" as they "inflict
suffering in violation of the above guidelines. If this were allowed for a human death-row inmate, theinmate would no longer be a human being. If this is allowed to be done to a human death-row inmate,he or she is no more a human being than a dog or a cat. These are the interests of the plaintiffs andother death-row inmates that will be violated.

IX. Plaintiffs' Claims
Plaintiffs claim against the defendant: 1. an injunction under Article 37-4 of the Administrative
Procedure Law; 2. confirmation of obligations under public law by way of party suit under Article 4 of
the Administrative Procedure Law; and 3. compensation for damages under Article 1, Paragraph 1 of
the National Compensation Law.

1 Injunction against Execution of Death Penalty by Hanging
1 Illegality of the defendant's execution of the death penalty
Defendant's method of execution by hanging is illegal. It is clear that Defendants should not order the
execution of Plaintiffs by hanging. Plaintiffs have the right to challenge Defendants' illegal "hanging"
method of execution.
2 Dispositional nature
Decisions that are the subject of injunctive actions (Article 37-4, Paragraph 1 of the Administrative
Procedure Law) are those acts of the national government or public bodies, which are the subjects of102

public authority, that are legally recognized to directly form the rights and obligations of citizens or todetermine the scope of such rights and obligations. In making such a determination, the system ofindividual laws concerning the act is interpreted, and whether the legislative policy of treating the act
as a determination shall be considered spontaneously.

(1) Framework for Execution of Death Penalty
Regulation on the specific methods of executing the death penalty shall be recounted.
1. Propose from the head of the Public Prosecutor's Office (Chief Public Prosecutor)
Under Article 472 of the Code of Criminal Procedure, a request for execution of the death penalty is
submitted to the Minister of Justice by the head of the public prosecutor's office to which theprosecutor is assigned to direct the execution of the sentence (Article 9 of the Rules of Administrative
Affairs). The appeal is made by submitting a written request for execution, a record of the proceedings
including records not submitted to the court, and a copy of the court transcript.
2. Order of the Minister of Justice
The Minister of Justice shall, after reviewing the report, order the public prosecutor to execute thedeath penalty (Article 475, paragraph 1 of the Code of Criminal Procedure).
3. Order of the Public Prosecutor
When the Minister of Justice orders the execution of the death penalty pursuant to the provisions ofArticle 475, paragraph 1 of the Code of Criminal Procedure, the public prosecutor shall order thewarden of the penal institution (detention facility warden) to execute the death penalty by issuing awritten order (Rule 10, paragraph 1 of the Administrative Rules). When the Minister of Justice orders
the execution of the death penalty, the execution shall be carried out within five days (Article 476 of
the Code of Criminal Procedure).
4. Execution of death penalty
The warden of the penal institution (warden of the penal institution) who has received the notice will
notify the inmate of the execution and execute the death penalty by hanging. Currently, thenotification is made in the run-up to the execution in the morning (2 to 3 hours before), and the inmate
is not informed before that time.
In the above process, acts form 1 to 3 are conducted by different administrative agencies (institutions),
and when such acts are conducted by different administrative agencies, the other administrative
agencies execute the death penalty on the basis of such acts, which is a continuous series of action. In
particular, the order of the Minister of Justice (2) is binding on the public prosecutor and deprives aperson sentenced to death of his or her life. Although 4 is an action-in-fact, it is also an act that resultsin the death penalty inmate's death and the permanent deprivation of his or her human rights.

103

Regardless the other party to the act is an administrative body or the action is an action-in-fact, theacts of each of these bodies have a direct effect on the plaintiffs and other death- sentenced inmates.
(2) Administrative measures of injunction demanding the defendant as the state
There is also case law that presupposes the recognition of the dispositional nature of such a continuumof acts amongst internal administrative bodies and factual acts.
The Yokota Air Base Noise Injunction Lawsuit was filed by residents living near the base, seeking an
injunction against the operation of aircraft of the Self-Defense Forces and others, with the government
as the defendant. The Yokohama District Court, the court of first instance, granted the injunction as an
unnamed appeal suit. The Tokyo High Court, the court of appeal, granted the injunction under Article37-4 of the Administrative Procedure Law (injunction suits), and the Supreme Court, like the Tokyo
High Court, recognized the "threat of serious damage" under Article 37-4 of the Administrative
Procedure Law (injunction suits), but held that the case "cannot be said to be one where theadministrative authority's discretion is found to exceed its scope or be abused. (Supreme Court, First
Petty Bench, December 8, 2016, Judgment, Minshu, Vol. 70, No. 8, p. 1833; Supreme Court Case
Commentary, Kou-C, p. 11). Supreme Court Case Commentary, Kou-C11).
In the said lawsuit, the requirements for the main proceedings are judged as fulfilling the requirements
for an injunction lawsuit, and it is assumed that one or both of the following are "dispositions": 1) an
order by the Minister of Defense to operate an SDF aircraft and 2) the operation of the SDF aircraft
itself, which is conducted based on the order, as an exercise of the authority of the Minister of Defense.
Although the first issue is that it is an internal act between administrative agencies, and the second
issue is that it is an actual act, the Supreme Court has concluded that one or both of them constitutean "administrative measure”.
The execution by hanging also constitutes an administrative measure of execution, which is a series ofsuccessive acts of internal orders by administrative bodies and factual acts based on such orders.
Therefore, each of the acts 1 to 4 above is legally recognized as forming the rights and obligations of acitizen who has been sentenced to death, and thus constitutes an "administrative measure”.
3 Fulfillment of Requirements for Injunction (Article 37-4 of the Administrative Procedure Act)The requirements for a request for an injunction under Article 37-4 of the Gyosei Law are: (1) a threatof serious damage, and (2) no other appropriate means to avoid such damage.
When the death penalty is carried out, the plaintiff and other persons sentenced to death are deprivedof life by the defendant. Human life is the ultimate legal interest, and once executed, it is impossible
to recover damages. Therefore, it is clear that the execution of the death penalty may cause serious
harm. There is no other way to suspend the execution of the death penalty at this time, and theillegality of such a method cannot be challenged through other appeals.

104(1) Unclear and arbitrary selection criteria for execution targets
Defendants have been executing people almost every year on a continual basis. However, it is not clear
what criteria were used to select who to execute and when. Nor is the order of execution based on thedate of the death sentence, with the oldest being executed first. It is clear from the data compiled by
the plaintiffs' counsel (Kou-F15) that even if the death sentences were carried out in the same year,
they were not carried out in the same manner. The period of time between the confirmation of eachdeath sentence and the execution is indicated (yellow marker), and the period of time is indicated in
handwriting. For example, among the eight cases confirmed in 1981, one case was executed in sevenyears, three in nine years, one in 11 years, two in 12 years, and one in 18 years. The length of time
between the confirmation and execution was more than twice as long as that of the shorter cases.
In July 2018, 13 Aum Shinrikyo gurus and former followers were executed simultaneously in two
separate executions, albeit on different dates. This was the largest group execution in Japan's death
penalty history (12 people were executed in the Daigaku case).
On the other hand, there were no executions in 2019-2020; the Tokyo Olympics and the 14th United
Nations World Congress on Crime Prevention and Criminal Justice were scheduled to be held in Japan
in 2020. This was postponed one year to the summer/fall of 2021. The Japanese government has beenreluctant to hold executions because it does not want diplomats, criminal officials, and otherdignitaries from other countries, especially European countries that have abolished the death penalty,
to know that such executions are taking place in Japan during their visits to the country. However, after
the two events ended in the fall of 2021 and the foreign dignitaries left Japan, the Japanese
government (Ministry of Justice) executed three people on December 21, 2021, at the end of the year.
On July 26, 2022, another death sentence was carried out. In other words, executions of defendants
are carried out arbitrarily, and the criteria for implementation and selection of the subjects are notmade clear.
Thus, executions are carried out at the discretion of the defendant, without any criteria for existenceor non-existence, or for the timing of executions.
It has been about 17 years for plaintiff A, about 15 years for plaintiff B, and about 10 years for plaintiff
C since they were sentenced to death. The plaintiffs do not know when or if they will be executed. In
addition, this lawsuit challenges the illegality of the hanging penalty, and for the defendants, the very
foundation of the death penalty is being challenged. For a traitor who tries to challenge the basis of
the death penalty in this way, execution in retaliation is quite possible.

(2) No legal means to prevent
Under current law, there is no other appropriate method (Article 37-4, Paragraph 1 of the Code of
Criminal Procedure) other than an injunction action to avoid the serious damage of deprivation of life
caused by the execution of the death penalty.

105

Article 502 of the Code of Criminal Procedure provides for a method of contesting the method of
execution under the Code of Criminal Procedure, and there are two Supreme Court precedents related
to this article. The first is the Supreme Court decision of December 5, 1961 (Minshu Vol. 15, No. 11, p.
2662), which stated, "If it is claimed that the current method of execution under the current laws andregulations (death penalty: plaintiff's counsel's note) is illegal, the criminal judgment that is based onsuch method of execution should be challenged in the manner prescribed by the Penal Procedure Law,
and without this ... In the end, to dispute the method of execution of the death penalty under the Law
on Special Measures for Administrative Case Litigation is, in effect, to seek the annulment or
modification of a criminal judgment by means of an administrative case lawsuit, and such a lawsuit is
not permitted”. The second is the Supreme Court decision of August 24, 1961 (Penal Code, Vol. 7, No.
1301), which states that "an objection to the execution of a trial made before the prosecutor directs
the execution of the trial or makes any other disposition is inadmissible”.

At this point in time, the report to the prosecutor has not been filed or the execution of the death
penalty has not been initiated in this case. Article 502 of the Code of Criminal Procedure provides fora system to file an objection to the prosecutor's disposition regarding the execution, but it is clear fromthe second case that no objection can be filed at this stage because the procedure for the prosecutor
to conduct the execution, which is the subject of the objection, has not been initiated.
Incidentally, in a previous case in which the Tokyo District Court ruled on 28 September 1960 in a
substantive party action concerning the non-existence of the obligation to accept the death penalty(Kou-C12), the Tokyo District Court decided on 30 June 1959 to stay the execution (Kou-C13).
4 Legal interest

Since the plaintiffs are persons under the death penalty who have been sentenced to death and there
is a probability that they will be executed by hanging in the future, they have legal interests as well
(Article 37-4, Paragraph 3 of the Code of Criminal Procedure).
5 Jurisdiction
Based on the above, the filing of the injunction suit by the plaintiffs under Article 37-4 of the
Administrative Procedure Law is lawful. The execution of the death penalty against the plaintiffs will
be carried out by the Minister of Justice, the public prosecutor of the Osaka District Public Prosecutors
Office, and the warden of the Osaka Detention Center, and since the national government, to which
the administrative agency making the relevant administrative measure belongs, is the defendant, alawsuit may be filed in the Osaka District Court (Article 11, Paragraph 1, Item 1 and Article 12,
Paragraph 4 of the Administrative Case Litigation Act). And since the injunction lawsuit is the basic
claim, and other claims are consolidated in order, the Osaka District Court has jurisdiction regardlessof the jurisdiction of the other claims (Article 16, Paragraph 1 of the Administrative Case Litigation Act).
2. Confirmation of the non-existence of the obligation to accept execution (party suit under public
law)

106

1 Necessity of Party Suit under Public Law
Even if the execution of the death penalty under the existing statute is stayed, there are certain limits
to the effect of such a ruling. For example, even if the request for an injunction is approved, dependingon the judgment in the reasons, there is a possibility that the death penalty may still be carried out by
hanging if the government amends the law and changes the current hanging method. In particular,
since the current hanged penalty is said to be based on the antiquated Dajokan Proclamation No. 65
of 1873, even if the request for an injunction against the current execution method is approved, there
is still a possibility that the law will be amended to carry out the execution. If so, the plaintiffs have aninterest in confirming that they have no obligations to accept the death penalty by hanging.
The existence or non-existence of the obligation to accept the death penalty can be disputed in a
substantive party suit (Article 4 of the Code of Criminal Procedure). This was recognized by the Tokyo
District Court on September 28, 1960 (Kou-C12), and more recently by the Osaka District Court, 2nd
Civil Division, in a case (No. 122, 2021 (Reiwa 3)), in which the defendant demanded confirmation of
the non-existence of the obligation to tolerate the notification of the execution and execution on thesame day and demanded state compensation. The details are as follows.
2 Legal contestability
The plaintiffs are asking a judicial examination and decision on a concrete matter that concerns thevery foundations of their life and procedural guarantees, as to whether or not they have a concreteright to be obliged to accept the execution of the hanging sentence. If this is not a legal dispute, despite
the fact that they are asking the judiciary to hear and decide on the issue, it is nothing less than a denialof judicial power. The life of the plaintiff and the guarantee of due process are rights derived from
Articles 31, 32, 13, etc. of the Constitution. The death penalty is a life sentence, and once it is carriedout, it is irreversible.
Therefore, at this point, the execution of the hanging sentence against the plaintiff should be examinedby the court as a violation of international human rights law (violation of the Covenant on Civil
Liberties). Since the execution of the hanging sentence has already been fixed by a final and binding
judgment, a dispute over the method of execution can be said to be an actual dispute over the
existence or non-existence of concrete rights and obligations or legal relations between the parties,
and constitutes a legal dispute (Article 3, Paragraph 1 of the Court Act).
3 Benefit of confirmation
In preventing future adverse dispositions, the absence of the obligation that is a precondition for theadverse disposition is also subject to confirmation (see the case of request for confirmation of theabsence of the obligation to sing the national anthem, February 9, 2012 (Heisei 24), Minshu, Vol. 66,
No. 2, p. 183). Since there is a concrete dispute between the parties regarding the fact that the hanging
is a violation of international human rights law and the Constitution, it is effective and appropriate todetermine the existence or non-existence of the obligation to accept the hanging in order to resolve
the concrete dispute between the parties, and this case is an appropriate subject for confirmation.

107

The judgment sentencing the plaintiff to death has become final and binding, and there exists a risk
and anxiety about the execution of the hanging sentence. In order to eliminate the risk, it is necessary
and appropriate to issue a confirmatory judgment on the existence or non-existence of the obligation
to comply with the execution of the hanging sentence, and the ripeness of the lawsuit (practicalnecessity of immediate confirmation) is also recognized. In light of the above, this lawsuit has thebenefit of an action for confirmation.
4 Replenishment
Even in cases where an injunction suit and a substantive party suit are filed concurrently,
supplementarity is not denied if they have mutually independent interests (see the case of request for
confirmation of non-existence of obligation to sing the national anthem, February 9, 2012, Civil Vol.
66, No. 2, p. 183, Supreme Court) In addition, since there is no practical means to dispute the methodof execution of the death penalty under the Code of Criminal Procedure, the scope of the 1961 decision
does not extend to this case. Therefore, the supplemental nature of the substantive party action is notdenied in this case.
5 Court Decisions Holding Substantial Party Actions is Legal with Respect to the Absence of an
Obligation to Accept Execution of Death Penalty
In the past, the Tokyo District Court ruled on September 28, 1960 (Kou-C12) that a party in fact could
file a lawsuit against the death penalty with detailed reasons given. In the case of a request for
confirmation of the non-existence of an obligation to accept the death penalty, the Tokyo District Court
recognized the validity of a request by a person sentenced to death to the government to confirm thathe/she is not obligated to be executed under the current execution method (a request for confirmationof obligation under public law), and rejected the defendant's defense that the defendant should filean appeal under Article 502 of the Code of Criminal Procedure. The court then made a decision on themain case.

Even if it is possible to conceive of an opportunity after the order and before theexecution, it is clear that the execution of the death penalty is very different from theexecution of other sentences, according to the existing laws and regulations and theresults of this court's examination. The execution of the death penalty is carried out byorder of the Minister of Justice, and the execution must be carried out within five daysof the order. It is not until the morning of the day of execution that the warden is
officially informed of the order, and it is not until shortly afterwards that the prisoner
is informed of the order by the warden, and in the altar room of the prison to which heis led, just prior to the execution. At such a point in time and under such circumstances,no one can be sure that an objection to the right to command the death penalty canbe sufficiently filed. In such a case, it is clear that it would be extremely inappropriate
to limit the method of appeal against the execution of the death penalty by a person
sentenced to death to the method of objection provided for in Article 502 of the Codeof Criminal Procedure, and that a rightly convicted person may, to the extent that other108

methods exist for the execution of the death penalty, seek relief by that method before
the court. Therefore, it should be understood that rightful convicts may substantiallychallenge the execution of the death penalty to the court and seek relief by that method,
as long as other methods of execution exist. In addition, it is reasonable to conclude
that it is permissible to assert the non-existence of a public law obligation, such as theobligation to execute the death penalty, and to file an action to confirm the nonexistence of such obligation when there is no other adequate remedy for a serious legal
interest and such action is unavoidable. Therefore, this action is lawful, and there is no
reason for the defendant's argument.
(Kou-C12, pp. 535 to 536)

Based on the foregoing, the filing of the substantive party action by the plaintiffs is lawful. The
substantive party action is merged with the injunction claim.

3 Lawsuits for State Compensation
1 Breach of duty by the defendant public official
The execution of Defendant by hanging is illegal. The plaintiffs are obliged to accept the death penalty,
but they are not obliged to accept the illegal execution of the death penalty by hanging. The Chief
Public Prosecutor of the Osaka District Public Prosecutor's Office, to which the prosecutor supervising
the execution belongs, submits a request for the execution to the Minister of Justice (Article 472 of theCode of Criminal Procedure and Article 9 of the Execution Administration Rules), the Minister of Justiceissues an execution order (Article 475, Paragraph 1 of the Code of Criminal Procedure), and theprosecutor supervising the execution directs the warden of the Osaka Detention Center to execute thedeath penalty based on the execution order (Article 475, Paragraph 1 of the Code of Criminal
Procedure). The public prosecutor directs the warden of the Osaka Detention Center to carry out theexecution based on the death penalty execution order (Article 10, Paragraph 1 of the Rules of
Execution).
The Chief Public Prosecutor of the Osaka District Public Prosecutors Office, the Public Prosecutor in
charge of execution, the Superintendent of the Osaka Detention Center, and other public officials havea duty not to execute a person sentenced to death by hanging, which is an illegal means of execution(duty of inaction). The fact that these public officials have maintained the execution of death penalty
by hanging in violation of this duty of omission constitutes an unlawful act against the plaintiffs.
The illegality of executions has been pointed out by the Japan Federation of Bar Associations (JFBA) in
resolutions passed by its Board of Directors 20 years ago in November 2002 (Kou-C8), by the Human
Rights Congress in 2004 and 2011 (Kou-C9), and by the Human Rights Congress in 2016 (Kou- C10)
calling for the abolition of the death penalty, by local bar associations through resolutions, and by the
JFBA through notifications (executions) to defendants, and by public officials involved in executions.
2 Compensation Amount109

(1) Compensation for plaintiffs' pain and suffering: 10,000,000 yen each
The death-penalty convicts have spent their days filled with pain, anguish, and anxiety, helplessly
facing the execution of the death penalty, which they were not originally obliged to accept. Until thefiling of this lawsuit, plaintiff A has been suffering for about 17 years, plaintiff B for about 15 years, andplaintiff C for about 10 years. The pain and suffering of the plaintiffs continues to this day and willcontinue until the defendants cease the illegal execution of the death penalty by hanging. Such illegal
application of the death penalty by the defendant is a tort against the plaintiffs, and the amount ofcompensation for this mental anguish is not less than 10 million yen for each plaintiff.
(2) Attorney's Fees: 1,000,000 yen each
Since the plaintiffs had no choice but to entrust an attorney to file this lawsuit, 1,000,000 yen each forthe attorney's fee is also a tort damage caused by the defendant.
(3) Late payment of damages: 3 percent per annum
For each of the above-mentioned damages, a claim for delay damages (at the rate of 3% per annum)
shall be made as prescribed by the Civil Code (Article 4 of the National Compensation Law and Article
722 of the Civil Code).
3 Short summary
Therefore, each plaintiff is entitled to 11,000,000 yen in damages against the defendant under the Law
Concerning Lawsuits for National Claims for Compensation.

X. Conclusion - Why Keep Hanging Executions Secret?
1 Concealing the Execution of the Hanged Man
Defendants do not reveal anything about the death penalty, particularly how executions by hanging
are carried out and what kind of death awaits the condemned.

In the Meiji and Taisho eras, information on executions was made public. However, from the
beginning of the Showa period, information on all executions (hangings) was withheld from thepublic and the media. The report of the Investigation Commission on the Execution System from the
Taisho and Showa eras was the main reason for the non-disclosure of information on the death
penalty, including hangings.

110

2 The Investigation Commission on the Execution System and the Execution of Death Penalty(Hanging)
1 Study on Method of Execution of Death Penalty
The Japanese government once considered the method of execution of the death penalty, as examinedby the Investigation Commission on the Execution System which was established in 1922 (hereafterreferred to as the "Commission"). According to an instruction by Justice Minister Ohki at the firstmeeting of the Commission, the system of execution at that time was based on the concept of
retribution for crimes, and protection nature was not regarded to the system. The government asked
the Commission to consult on 15 items, including the method of execution. This process is detailed in
the Fuse paper (Kou-F1-1).

2 Recommendations of Subcommittee I
The first subcommittee examined methods of executing the death penalty. At the third meeting of theCommittee, Judge Kikunosuke Makino, the chairman of the First Subcommittee, made the following
four recommendations to the First Subcommittee in his report entitled "The Course of Proceedings
and the Results of the Investigation into the Pros and Cons of Strangulation, Slashing, Shooting, andElectrocution Practiced in Japan and in European and American Countries.
(i) That the execution of the death penalty may be carried out by strangulation in the end,
and that the method of execution be improved so that the pain of the sentenced person
may be lessened and the horrors of the moment of death may not be seen.
(ii) The Supplementary Provisions of the former Penal Code, which were to be notified tothe sentenced person at the time of execution, shall continue to be notified as before,
even though they have been repealed.
(iii) The circumstances of the execution of the death penalty shall be kept secret, but thefact of the identification and execution of the crime shall be made public for encouraging
good behavior and discouraging bad behavior.
(iv) That the execution of the death penalty may not be delayed for more than a few days,
as this would cause too much mental anguish to the offender, and that the execution may
therefore be carried out as quickly as possible.

3 The First Subcommittee recognized the cruelty of hanging.
What is clear from this recommendation is that the First Subcommittee acknowledged the sufferingand subjective cruelty of the condemned by stating that "the suffering of the condemned (those whoare hanged) should be reduced. It also acknowledged the "misery at the moment of death," that is,
the misery up to the moment of death, its gruesomeness, and objective cruelty. However, the First
Subcommittee recommended that to the effect the cruelty " be made invisible and that the methodsof execution be improved by way of change”. In other words, it was a recommendation to "cover up

111

the stink". In response to the first recommendation, the third recommendation states that thecircumstances of executions should be kept secret from the public.

4 Report of the Investigation Commission on the Execution System and the Government's Nondisclosure of Information on the Death Penalty
The report on the investigation of the penal system (I) (Kou-F7), prepared between 1923 and 1924,
contained the following four recommendations regarding the method of execution of the death
penalty in response to the aforementioned recommendations of the First Subcommittee.

Execution of the Death Penalty(i) The death penalty may be imposed by strangulation, and I wish to improve the current methodof execution.
(ii) Execution of the death penalty shall be announced to the person to be executed at the time of
execution.
(iii) The method and circumstances of execution of the death penalty shall be kept secret. For
encouraging good behavior and discouraging bad behavior, it is requested that the summary of
the crime committed by the sentenced person and the execution shall be made public asappropriate.
(iv) Execution of the death penalty shall be carried out as soon as possible after the judgment
becomes final and binding.

The Commission approved the recommendations of the First Subcommittee as recommended. It was,that although subjectively and objectively cruel, the method be improved in a way that the execution
would not be seen.
In light of the above, the government "improved" hanging by keeping the execution (hanging) secret,even though it had been painful and horrific and in need of improvement since 1923 to 24 (Taisho 12
to 13).
The third paragraph of the report stated that "the method and circumstances of execution of the death
penalty shall be kept secret", and the government's policy of withholding all information on death
penalty as well as its executions began to be closed to the public. The government's policy was to keep
all information on the death penalty secret (non-public), including mass media reports. After the war,even after the new constitution was enacted, there was no change in this policy.

3 How were executions carried out under the secrecy of death penalty information?
The following shows the number of executions since 1925 (Taisho 14), when the report was submitted.
The following table is based on the Annual Report of Prosecutorial Statistics.

112

Year

Number ofpeople1925 (Taisho 14)
1926 (Taisho 15/Showa 1)
1927 (Showa 2)
1928 (Showa 3)
1929 (Showa 4)1930 (Showa 5)1931 (Showa 6)1932 (Showa 7)
1933 (Showa 8)1934 (Showa 9)1935 (Showa 10)1936 (Showa 12)1937 (Showa 13)1938 (Showa 14)
1939 (Showa 15)
1940 (Showa 16)
1941 (Showa 17)
1942 (Showa 18)
1943 (Showa 19)
1944 (Showa 10)1945 (Showa 20)
1946 (Showa 21)
1947 (Showa 22)
1948 (Showa 23)
1949 (Showa 24)
1950 (Showa 25)
1951 (Showa 26)
1952 (Showa 27)
1953 (Showa 28)
1954 (Showa 29)
1955 (Showa 30)
1956 (Showa 31)
1957 (Showa 32)
1958 (Showa 33)
1959 (Showa 34)
1960 (Showa 35)
1961 (Showa 36)
1962 (Showa 37)
1963 (Showa 38)
1964 (Showa 39)

19
29
12
21
13
13
19
22
28
35
14
11
23
15
14
20
22
11
15
25
9
11
12
33
33
31
24
18
24
30
32
11
39
7
30
39
6
26
12
0

113

1965 (Showa 40)
1966 (Showa 41)
1967 (Showa 42)
1968 (Showa 43)
1969 (Showa 44)
1970 (Showa 45)
1971 (Showa 46)
1972 (Showa 47)
1973 (Showa 48)
1974 (Showa 49)
1975 (Showa 50)
1976 (Showa 51)
1977 (Showa 52)
1978 (Showa 53)
1979 (Showa 54)
1980 (Showa 55)
1981 (Showa 56)
1982 (Showa 57)
1983 (Showa 58)
1984 (Showa 59)
1985 (Showa 60)
1986 (Showa 61)
1987 (Showa 62)
1988 (Showa 63)
1989 (Heisei 1)1990 (Heisei 2) to March 1993 (Heisei 5)1993 (Heisei 5)1994 (Heisei 6)1995 (Heisei 7)1997 (Heisei 9)1998 (Heisei 10)1999 (Heisei 11)2000 (Heisei 12)2001 (Heisei 13)
2002 (Heisei 14)
2003 (Heisei 15)
2004 (Heisei 16)
2005 (Heisei 17)
2006 (Heisei 18)
2007 (Heisei 19)
2008 (Heisei 20)
2009 (Heisei 21)
2010 (Heisei 22)

4
4
23
0
18
26
17
7
3
4
17
12
4
3
1
1
1
1
1
1
3
2
2
2
1
0
7
2
6
4
6
6
3
2
2
1
2
1
4
9
15
7
2

114

2011 (Heisei 23)
2012 (Heisei 24)
2013 (Heisei 25)
2014 (Heisei 26)
2015 (Heisei 27)
2016 (Heisei 28)
2017 (Heisei 29)2018 (Heisei 30)2019 (Heisei 31/Reiwa 1)
2020 (Reiwa 2)
2021 (Reiwa 3)2022 (Reiwa 4)

0
7
8
3
3
3
4
15
3
0
3
1
(Total 1095)

In the 1945 to 1955 (Showa 20’s) and 1955 to 1965 (Showa 30’s), the number of executions reacheddouble digits, and although it finally reached single digits in the 1965 to 1975 (Showa 40’s), executions
by hanging continued to be carried out every year. However, this information was never disclosed tothe public by the government (Ministry of Justice).
In November 1998 (Heisei 10), the Ministry of Justice announced only the fact of the execution andthe number of those executed on the day of execution (after the execution).
This was approximately 75 years after the aforementioned Report on the death penalty execution
system No 1. Since October 2007, approximately nine years later, the Ministry of Justice has only
disclosed the name, date of birth, crime, and place of execution of death penalty inmates who havebeen executed.
Executions by hanging have been carried out in secret since the Showa period, and information wasnever made public until the limited public disclosure mentioned above. This is because hangings arecruel. As the Investigation Commission of Execution System described it as " the horrors of the
moment of death may not be seen," it is not something that can be shown to the public. It is not
something that can be made public.
Over the past 97 years, a total of 1,095 death sentences have been carried out; more than 1,000 death
sentences have been carried out in secret for nearly 100 years, i.e., the defendants have killed them.
4 the people involved in the hanging.
There are many people involved in the secret executions of more than 1,000 people, including prison
guards, chaplains, prosecutors, and others who are involved in the execution. The number is believed
to exceed 10,000. This case is a trial to question the cruelty of hanging. Hanging is a cruel punishment
even to the prison guards and chaplains who are present.

115

1 Prison Officer
Keiko Horikawa states in her "Life under Judgment - Letter from a Prisoner on Death Row" (Kou-F13),
in “Prologue to the Collection”.

Although it is the court that passes the death sentence, it is the prison guards who
actually carry out the execution. The work is the horrendous task of binding andhanging condemned prisoners with their own hands, and disposing of the bodies withblood and excrement flowing. The suffering of these prison guards, who are the parentsof children and ordinary citizens when they take off their uniforms, cannot be fully
described in a few words.
(Kou-F13, p. 437)
The same point is also stated in the aforementioned Osamu Aoki, "Hanged" (Kou-D1).
2 Chaplain
Keiko Horikawa, while following the life of Fuso Watanabe, a Jodo Shinshu chaplain, wrote thefollowing words of Watanabe in her book "Chaplain" (Kou-F14), which was published after his death.

An ordinary diligent person cannot be a chaplain. If you think too serious about it, youwill end up being crazy yourself....
When it came time to say farewell to the person you had spent so much time with, you
had to send him or her off with a ritual you yourself called "murder”. This contradictory
act exhausted him both physically and mentally.... I guessed that it was not his brain
but his heart… that was paralysed by alcohol. When I confronted him with thisassumption, Watanabe laughed silently and neither affirmed nor denied it. In any case,
Watanabe was finally hospitalized (treatment for alcoholism, according to theplaintiff's attorneys' notes).
... he was discharged from the hospital after a little more than two months. Since then,he has not had a drop of alcohol in his mouth.
(Kou-F14, p. 258)

By following the life of one person, Watanabe reveals how the job of a chaplain is a burden physicallyand mentally, and the anguish it causes.
3 Prosecutor116

In " Life under Judgment - Letter from a Prisoner on Death Row " (Kou-F13), describing Takeshi
Tsuchimoto, a former prosecutor of the Supreme Public Prosecutors Office, who himself had sought
the death penalty as a witness prosecutor and had received seven letters from the convict andcorresponded with him, Ms. Horikawa describes how, after receiving the last letter (before his
execution), the prosecutor was so distressed that he asked his superior for a pardon for the convict,including his own statement (Kou-F13, pp. 304-307). In the "Prologue to the Collection" of the above
book, Horikawa introduced Tsuchimoto's testimony as a defense witness in the Konohana pachinko
parlor arson case, in which he stated that he thought the death penalty was constitutional but thehanging penalty was unconstitutional, based on his experience witnessing executions, as follows

Mr. Tsuchimoto said, "it was unbearable to watch the scene of a person who had justbeen alive being tied up and hung so that he could not resist, and then being shaken
like a puppet, swinging around the neck on its axis. Before witnessing the execution,
he had read through the entire record of the case and told himself that "the maximum
punishment was inevitable. However, he said that the sites they saw in reality did notseem very much like places where 'justice' was being achieved.

At the end of his testimony, Mr. Tsuchimoto looked squarely at the presiding judge
and summed up his testimony as follows. The death penalty, which takes the life of acriminal, is an act at the very limits of what the state is allowed to do, and if it is cruel,it exceeds the limits of what the state nation is allowed to do. Whatever the atrocity
with which a criminal kills, the state must never do the same thing, and it must punish
him in a humane way that is not cruel, which is the pride of the state." (pp. 436 to 437)
Aoki states at the end of "Hanged" (Kou-D1, pp. 325 and 332).
The execution of a sentence that forcibly takes a life cannot be anything but gruesome.
Again, all those surrounding the "death penalty" stand in hesitation and anguish.

Hanging has caused anguish and pain not only to those who are sentenced to death, but also to manyothers involved.

5 The defendant should reveal the reality of the death penalty.
Even today, almost 100 years after the report of the Investigation Commission on the Execution System,
information on executions remains hidden in the secrecy veil. The reason for this is the cruelty ofhanging.
Hanging is cruel, inhumane, unbearable to watch, and unforgivable to look at. Showing this to the
public should instantly reveal society's awareness that such barbaric executions cannot be carried out.

117

This is why the defendants have no choice but to keep the hanging a secret, and they are doing so insecrecy. The people behind the secrecy are forced to suffer.
If the defendant claims that hanging is a safe and humane means of execution that is not cruel andabnormal in the current methods of execution, the defendant should and can reveal the true state in
the judicial arena. The public is not informed of the reality of hangings. They do not even know thatthe death penalty is carried out by barbaric hanging, and they do not know how hanging is carried out.
The same applies to the judiciary. In the five Supreme Court decisions up to 1956, no evidence of what
hanging actually looks like, not even pictures of actual hangings, let alone pictures of actual hangings,
was ever presented. The defendant only described hanging theoretically, but the actual reality ofhanging has never been proven by the defendants.
Hanging, as a legal system, is cruel and inhumane and cannot continue in the present time. Suchinhumane and barbaric acts cannot be allowed to continue in Japan, which claims to be a nation ofhuman rights. Based on the above, the plaintiffs have decided to file this lawsuit.

118

(Annexures)

Plaintiff's list
1-2-5 Tomobuchi-cho, Miyakojima-ku, Osaka 534-8585, Japan

Osaka Detention Center

Plaintiff

Plaintiff A

Plaintiff

Plaintiff B

Plaintiff

Plaintiff C

Same address

Same addressEnd119