Resolution Calling for the Abolition of the Death Penalty
Many people in Japan have felt conflicted over the question of whether
criminals who deprive others of their precious lives should pay for the crimewith their own life, and whether it is acceptable for a State to maintain thedeath penalty and carry out executions, and have sometimes hesitated to
discuss these issues at all.
On the other hand, if we look beyond our national frontiers, after WorldWar II the international community created the United Nations on the basisof the United Nations Charter (hereinafter the “UN Charter”), andrecognizing that respect for human rights and international peace areindivisibly connected, adopted the Universal Declaration of Human Rights,
the International Covenant on Civil and Political Rights (hereinafter the“ICCPR”) and its Second Optional Protocol (hereinafter the “Protocol on the
Abolition of the Death Penalty”) as international standards for the respect offundamental human rights and call on States to strive for the abolition of thedeath penalty.
Under these circumstances, the Japan Federation of Bar Associations(hereinafter the “JFBA”) adopted, at the Annual Conference for theProtection of Human Rights held in October 2016 in Fukui City, a“Statement Calling for Reform of the Entire System of Criminal Punishment,
Including the Abolition of the Death Penalty”.
In addition, since 1996, our Association has issued statements from our
President protesting the execution of the death penalty, and has called for a
moratorium on executions until nationwide discussion is exhausted. Further,since 2011, it has also endeavored to examine the propriety of the death
penalty and to disseminate information on the issue, including a series of
symposia on the system of the death penalty with the participation of citizens
and in particular four similar symposia held in 2019. Our Association has
also launched a project team in charge of examining issues related to thedeath penalty, including the maintenance and abolition thereof, tacklingsquarely the question of the death penalty.
On the basis of these activities over many years, our Association adopts,
as an association of lawyers composed of attorneys-at-law whose mission isto protect fundamental human rights and to achieve social justice (Attorney
Act, Article 1), the following:

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The Main Points of the Resolution
Our Association calls on the government and the Diet to
1. Abolish the system of the death penalty,
2. Introduce life imprisonment as an alternative sentence, and
3. Place a moratorium on executions until the abolition of the system of thedeath penalty is achieved.

Reasons for the Resolution
I. Reasons for calling for the abolition of the system of the death penalty
1. The right to life
The right to life is an inherent right deriving from human dignity and is afundamental human right constituting the foundation of all human rights.
Restricting the right to life means depriving a person of his or her life, andin contrast to the case of other human rights, once the right to life is restricted,
it can never be recovered. Also, the right to life is a right to existence as ahuman being, and there must not be a difference in value for each life. Hence,
the right to life of all persons must be equally respected to the maximum andbe inviolable.
As described above, the right to life, among all fundamental human rights,
deserves special protection, and therefore, Article 13 of the Constitution ofJapan proclaims that it requires the supreme consideration. The UN makes it
clear, in Article 3 of the Universal Declaration of Human Rights, Paragraph
1 in Article 6 of the ICCPR, and the Protocol on the Abolition of the Death
Penalty, that the right to life is inviolable.
Certainly, we cannot deny that, when we are faced with heinous, atrocious
murder or indiscriminate mass-murder cases, disquiet and hesitation arises
over whether we should guarantee the right to life to those who perpetratesuch crimes. However, even in such cases, approving the death penalty
would mean that we approve of the State selecting which human beings
deserve to live and which deserve to die. Such an approval is equivalent todifferentiating the value of each life, and thereby prevents the nurturing of
the universal value that fundamental human rights, inter alia, the right to life
must be respected. As a result, there is the danger that a mindset of treating
human life lightly in the name of severe punishment will be nurtured among
the population and also that grave human rights violations by the State such2

as those perpetrated before World War II may reoccur.
Given that such dangers exist, the UN adopted instruments such as theProtocol on the Abolition of the Death Penalty in order to seek the realizationof a society in which all people can share the value of respect for fundamental
human rights, especially the value of the inviolability of the right to life.
Our Association, recalling the words of Cesare Beccaria (1738-1794) in
his On Crimes and Punishments (“The death penalty is not useful in that itgives an example of cruelty to people. … It seems unreasonable to me thatlaw, representing public will, abhorring and punishing a murder, commits
exactly a murder itself and orders it publicly in order to protect citizens froma murder.”), makes it a goal to realize the abolition of the death penalty andto create a society in which people can share the value of respect for
fundamental human rights, especially the value of the inviolability of theright to life.
2. Risk of false convictions from erroneous judgments
Due process of law (Article 31 of the Constitution) has prevailed in Japan
since the end of World War II, but particular examination is needed to knowwhether miscarriages of justice exist in the death sentences that have been
handed down in criminal proceedings under this Article.
The death penalty is imposed through criminal proceedings, and theprocedures (the stages of investigation, trial, and reevaluation such as review
trial) are carried out by human beings. As humans are not infallible, wecannot completely exclude the risk that mistakes may happen during theseprocesses. This fact has been demonstrated in numerous cases in Japan,
including four cases in the 1990s in which death row inmates were acquitted
as a result of review trials (the Menda case, the Saitagawa case, the Shimadacase and the Matsuyama case), and the Office Lady of the Tokyo ElectricPower Company case, the Koto Hospital case and the Higashi Sumiyoshicase in which, while the death penalty was not demanded by the prosecution,
the accused were convicted of murder and acquitted by review trials
thereafter.
In addition to these cases, there are numerous other cases we cannot
overlook, such as the Nabari Poisoned-Wine case and the Hakamada case inwhich a decision to open a retrial was made (although not confirmed), as
well as the Iizuka case, the Fukuoka case and the Kikuchi case in which death
sentences were executed amongst concerns about possible miscarriages ofjustice.
Further, there is not only the problem of judging whether or not a person3

is guilty, but also the problem that, when deciding on the sentence, theborderline between the death penalty and a life sentence is unclear. While theSupreme Court set out the so-called Nagayama standard as the standard of
judgment in this respect, it cannot dispel all ambiguity. There is also a riskof erroneous judgment in respect of the facts which form the basis ofsentences, and we cannot totally dispel the uncertainty of sentencing
decisions caused by variation of those who make them (judges etc.).
It is not acceptable to leave the current unjust situation as it stands, inwhich people may be deprived of their life as result of false convictions
based on erroneous judgments and unjust sentencing decisions.
We the attorneys, having experienced that, no matter how criminal
proceedings are improved, we cannot totally exclude this social injusticethrough our criminal defense activities, are conscious of the fact that we arein a position in which we can advocate for such injustice to be corrected.
3. International human rights law and the responsibility of the UN
member States(1) International standard-setting and its prevalence
The international community, taking the lesson that grave human rights
violations such as the deprivation of numerous lives were perpetrated andtotalitarian States appeared as a result of leaving human rights protection up
to individual States and turning a blind eye to human rights violations incertain nations before World War II, created the UN by concluding the UN
Charter. The UN has set international standards for the respect of humanrights by adopting the international bill of rights, including the Universal
Declaration of Human Rights, the International Covenants on Human Rights,
the First Optional Protocol to the ICCPR, and the Protocol on the Abolitionof the Death Penalty.
These international standards for the respect of human rights set forth,among others, the right to life as follows: The Universal Declaration of
Human Rights provides that “Everyone has the right to life, liberty andsecurity of person” (Article 3), and the ICCPR provides that “Every humanbeing has the inherent right to life. This right shall be protected by law. No
one shall be arbitrarily deprived of his life” (Paragraph 1, Article 6), making
it clear that the right deserves special protection.
It is true that Article 6 of the ICCPR includes provisions that tolerate theexistence of the death penalty to some extent for those countries which have4

not abolished the death penalty (paragraphs 2 to 5). However, this article, atthe same time, added paragraph 6 stating that “Nothing in this article shallbe invoked to delay or to prevent the abolition of capital punishment by any
State Party to the present Covenant”, and was adopted on 16 December 1966.
Thereafter, the international community, in the belief that the abolition of thedeath penalty contributes to the advancement of human dignity andprogressive development of human rights, adopted the Protocol on the
Abolition of the Death Penalty on 15 December 1989, making it clear that
all States should aim at the abolition of the system of the death penalty.
This means that, recognizing that the content and degree of the respect for
fundamental human rights may not be varied depending on States, theinternational community called on States to abide by international standards
set forth at the UN especially with regard to the right to life, instead of relying
on interpretations of human rights that may differ from State to State, so thatthe general and universal nature of the right may prevail in all States.
After the adoption of the Protocol on the Abolition of the Death Penalty,
the UN has continued to adopt resolutions at the General Assembly, callingfor a moratorium on executions with a view to abolishing the death
penalty, for a total of seven resolutions as of 17 December 2018. Also, in thecourse of Universal Periodic Review (UPR) at the Human Rights Council,
retentionist States have constantly received recommendations, from theStates in charge of review, that they should take actions aimed at the abolitionof the death penalty. Japan has also received recommendations from treaty
bodies, including the Human Rights Committee’s concluding observations
that it “should favorably consider abolishing the death penalty” (October2008) and the Committee against Torture’s concluding observation urging
Japan to “Consider… the possibility of abolishing the death penalty” (May2013).
The UN and related bodies thus strive to disseminate to all Statesinternational standards aiming at the abolition of the death penalty.
(2) The responsibility of UN member States and developments in theinternational community
The member States of the UN that signed the UN Charter “pledge
themselves to take joint and separate action in co-operation with theOrganization” (Article 56 of the UN Charter) for the achievement of the
purposes of the UN set forth in Article 55, including “universal respect for,and observance of, human rights and fundamental freedoms for all”. And,through the activities of the UN and related bodies for the abolition of the5death penalty as described above and the cooperation of UN member States
who pledged themselves to take action for human rights as required in the
UN Charter, the number of abolitionist States (de jure, or de facto abolitionist
States which have not carried out executions for more than ten years) has
continued to increase. As of the end of December 2019, 142 States(accounting for 70 percent of the UN member States) are abolitionists, andthe number of States that have ratified the Protocol on the Abolition of the
Death Penalty has reached 88.
Amid such developments in the international community, and given thatJapan became a member of the UN on 8 September 1951 by signing the San
Francisco Peace Treaty and declaring that it would observe the principles of
the UN Charter, Japan has assumed the responsibility to take joint andseparate action in co-operation with the UN for the universal respect for, andobservance of, human rights and fundamental freedoms (Articles 55 and 56
of the UN Charter). Also, discharging this responsibility conforms to theprinciple of the Constitution setting forth internationalism (Preamble andArticle 98, paragraph 2). In light of the fact that the UN adopted the Protocolon the Abolition of the Death Penalty and that it has been engaged in
activities including the adoption of General Assembly resolutions calling fora moratorium on executions with a view to abolishing the death penalty andrecommendations for the abolition of the death penalty in the Human Rights
Council, it is obvious that the promotion of universal respect for, andobservance of, human rights and fundamental freedoms (Article 55 of the
UN Charter) encompasses the abolition of the death penalty.
Therefore, the government and the Diet, regardless of whether or not
Japan has ratified the Protocol on the Abolition of the Death Penalty, has the
responsibility to take actions, in cooperation with the UN, with a view toabolishing the system of the death penalty (such as promotional activities inJapan, a moratorium on executions and amending the law on the system ofcriminal penalties, including the abolition of the death penalty), and, in thelong run, to take actions with a view to ratifying the Protocol.
II. Toward the realization of the abolition of the system of the death
penalty in Japan
1. The Constitution and the judgment of the Supreme Court
The Supreme Court, in its judgments in 1948 and 1993, held the systemof the death penalty to be constitutional based on the wording of Article 31of the Constitution. It also held that death by hanging does not constitute a
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cruel punishment prohibited by Article 36 of the Constitution. However,
Article 31 of the Constitution only provides that “No person shall be
deprived of life or liberty, nor shall any other criminal penalty be imposed,
except according to procedure established by law”, and does not actively
support the system of the death penalty. Also, in a supplementary opinion to
the 1948 judgment, it was pointed out that the death penalty would possibly
be excluded as unconstitutional, depending on restrictive interpretation of
Article 31 supported by the cultural development of the nation. In a
supplementary opinion to the 1993 judgment, too, a justice pointed out thepossibility of a moratorium on executions and the introduction of a different
type of life sentence to the current one (by which an inmate may be subject
to parole after ten years) in order to narrow the huge gap between the trend
toward abolition of the death penalty in the international community andpublic opinion in Japan while it belonged to the matter of legislation.
Although the content of this different type of life sentence was not explained,
we may consider that it was the aggravated life sentence or life sentence
without parole proposed by the Union of Parliamentarians for Abolition of
the Death Penalty.
In terms of the interpretation of the Constitution, evaluation of the systemof the death penalty (especially its cruelty) is thus not immutable, and issubject to change according to developments in the international communityand changes in the situation in Japan in relation to such developments. Rather,
it is strongly implied that the move toward the abolition of the death penalty
is desirable.
2. Public opinion (social sentiments) and the death penalty
The government refuses to accept a follow-up to the recommendation to
Japan calling for actions with a view to abolishing the system of the death
penalty issued in the UPR of the UN Human Rights Council since 2008,
maintains the death penalty and continues executions, for the reason that “thegovernment considers that it should deal with the discussion on the systemof the death penalty while observing trends in public opinion. As a majorityof Japanese people think that the application of the death penalty for
extremely vicious, heinous crimes cannot be helped, the government does
not intend, for the time being, to make a forum for the purpose of discussing
the question of the death penalty”.
It seems that “the trends in public opinion” invoked by the government
here refer to the result of opinion polls conducted by the Cabinet Office.
However, in the opinion poll conducted by the Cabinet Office in7

November 2019, out of 1,270 people (representing 80.8 percent of 1,572
valid answers) who agreed with the choice “the application of the death
penalty cannot be helped”, 691 answered that they “would not abolish thedeath penalty” while 507 answered that they “would accept the abolition of
the death penalty in the future if circumstances change” to an additionalquestion (whether they support maintenance of the death penalty also in the
future or, if circumstances change, they would accept the abolition of thedeath penalty in the future). Consequently, out of 1,572 valid answers, thepercentage of those who are against the abolition of the death penalty bothat present and in the future is approximately 44 percent (691 out of 1,572).
On the other hand, the percentage of those who answered that “the death
penalty should be abolished” (142 people) and who answered that they“would accept the abolition of the death penalty in the future if circumstanceschange” (507 people) is approximately 41 percent (649 out of 1,572).
Therefore, neither those who choose the maintenance of the death penalty
in any case nor those who choose the abolition of the death penalty or the
possibility thereof reach a majority, and the percentage of each group is very
close.
In such a situation, the interpretation of the government, that public
opinion supports the system of the death penalty to the extent that we do notneed any discussion, is not correct. On the contrary, about 40 percent of theJapanese people are either for the abolition of the system of the death penalty
depending on the circumstances or, at least, are faced with a dilemma
regarding whether we should maintain or abolish the death penalty.
A quintessence of parliamentary democracy is that issues are thoroughly
debated in the parliament and, depending on the content and procedure ofsuch debates, conclusions drawn by parliamentarians and people may change.
In spite of that, we have not experienced any such debates in the Diet nor
national debates on the question of whether we should maintain or abolishthe death penalty. Under such circumstances, there are serious doubts
regarding the attitude of the government claiming that even discussion is notnecessary.
3. Alternative sentence to the death penalty
In the opinion polls conducted by the Cabinet Office in 2014 and 2019,
there was a question asking: “If life imprisonment without parole isintroduced, do you think it is better that the death penalty is abolished? Or
do you think we had better not abolish the death penalty even if life
imprisonment without parole is introduced?” In response to this question,
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37.7 percent of people in 2014 and 35.1 percent of people in 2019 answeredthat it is better to abolish the death penalty.
This means that, as a supplementary opinion to the Supreme Court
judgment in 1993 mentioned above, the introduction of life imprisonment
without parole may be a measure to fill the gap between international
standards and domestic public opinion.
However, there is a risk that the introduction of life imprisonment without
parole is in conflict with contemporary theories of penalties based on the ideaof social inclusion as well as with the UN Standard Minimum Rules for theTreatment of Prisoners (“the Mandela Rules”).
Therefore, the JFBA proposed, in its “Basic policies on the abolition of
the death penalty and the accompanying introduction of an alternative
sentence and the creation of a system of mitigation of penalty” issued in
October 2019, that “while introducing life imprisonment without parole as
the maximum penalty, a procedure permitting the mitigation of sentence tolife with the possibility of parole on an exceptional basis is to be created”.
Our Association basically agrees with the proposal of the JFBA, in viewof reconciling the realization of abolition of the system of the death penalty
as an international standard and the UN Standard Minimum Rules for theTreatment of Prisoners while calling for the introduction of an alternative tothe death penalty. But, depending on the measures for mitigation of penalty,
questions may arise as to whether the mitigated penalty can be sufficiently
severe as an alternative to the death penalty or whether social inclusion isreally possible. Consequently, conditions for the mitigation measuresprocedure (such as who can apply, who will judge applications, and theperiod of sentence) need to be fully examined with care by the government
and in the Diet.
4. The power of the death penalty to deter crimes
An apprehension is sometimes expressed that, if we abolish the death
penalty, heinous crimes involving the infringement of life may frequently
occur. However, the UN and the Council of Europe, as a result of scientificand statistical research such as the comparison of the tendencies of crimes inabolitionist States and retentionist States and the comparison of thetendencies of crimes before and after abolition in an abolitionist State, reportthat they cannot prove that the death penalty has a special deterrent effect on
crimes as compared to other penalties. The government also states, in a reply
paper dated 12 February 2008 to a question by a parliamentarian, that “it isdifficult to prove the power of the death penalty to deter crimes scientifically9and statistically”.
In relation to this, the government claims, on the basis of the result of theopinion polls by the Cabinet Office that those who agreed that “heinous
crimes will increase if we abolish the death penalty” reached a majority, thatthe death penalty, distinct from other penalties, has a special power to deter
crimes. However, while the power to deter crimes in question here relates toheinous crimes that correspond with the demand for the death penalty by theprosecution, it is said that the power of deterrence with regard to those who
commit such crimes cannot be scientifically and statistically proven. The
sentiment of security and apprehension of people who may be victims cannot
replace scientific and statistical proof of the power to deter crimes. Moreover,
we cannot expect that the threat of penalties will have a deterrent effect onterrorists and those who commit crimes with firm conviction in the first place.
Consequently, we need to develop scientific and reasonable social andcriminal policies based on actual crime statistics. Unproven, “the power of
threat of the death penalty” cannot be a ground for maintaining the systemof the death penalty.
5. Support for the families of victims
We attorneys have constantly been confronted with the various harms
caused by crime through our activities as counsels in criminal defense as wellas our activities as counsels of victims in the course of the system of victim
participation.
When we call for the abolition of the death penalty under suchcircumstances, there is an important question of how to come to terms withthe harm suffered by victims or bereaved families.
As the JFBA states, in its “Proposal concerning the question of the systemof the death penalty” dated 22 November 2002, that “the harm incurred bybereaved families as a result of heinous crimes such as those corresponding
to the death penalty is truly unjust, and while the sentiment of victimization
held by bereaved families is serious, the maintenance of the system of thedeath penalty alone cannot resolve the question of bereaved families”, thesentiment of victimization held by bereaved families not only encompasses
the sentiment desiring the punishment of perpetrators but also othersentiments such as feelings of loss and emptiness to which penalties cannot
respond.
Moreover, the harm caused by crime includes social damage such as lossof belonging to a community and economic damage such as losing an
economic pillar and the place to rely on.
10Therefore, there is a need to promptly design a system through which we
can sincerely face the anger and pain of victims and the unjust harm they
have suffered and to extend moral, economic and social support to bereaved
families (including the expansion of administrative mechanisms for responsesuch as the establishment of a Crime Victims Agency, extending the scopeof the system of allowances for crime victims to cover more people as wellas increase of its amount, the expansion of multifaceted support mechanisms
through the establishment of a coordination system between the central andmunicipal governments, training expert counsellors, and so on) andbudgetary measures for them, thereby supporting bereaved families on asociety-wide basis. The need for such measures exists, regardless of whether
we call for the abolition of the death penalty and of what kind of penalty
system is realized as a legal system.
Therefore, our Association, on the basis of our mission to protect humanrights and to achieve social justice, calls for reform of the system of penalties
including the abolition of the death penalty, and at the same time, declares
our determination to work on the issue of support for bereaved families.
III. Conclusion
For the above reasons, our Association calls on the government and theDiet to abolish the system of the death penalty, introduce life imprisonment
as an alternative sentence, and place a moratorium on executions until
relevant bills for the abolition of the system of the death penalty are passed
and put into effect.
18 September 2020
Fukuoka Bar Association

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