Complaint
December 25, 2020

Object of Claim(translation omitted)

Statement of Claim

This case is a case where the defense counsel ("Death Penalty Retrial Defense
Counsel" or "Defense Counsel") of O who was a prisoner sentenced to death
executed during petition for retrial ("Death Penalty Retrial Petitioner") seek
compensation of damages due to the illegality of the execution.
I.

Parties
1. Plaintiffs
The Plaintiffs are attorneys belonging to the Osaka Bar Association and are
the persons who were the Death Penalty Retrial Defense Counsel for the fourth
retrial petition of the Death Penalty Retrial Petitioner who was executed at the
Osaka Detention House on December 27, 2018. Plaintiffs Ikeda and Kishigami
were the attorneys for the appeal and final appeal trials of the Death Penalty
Retrial Petitioner and were the persons who were the Death Penalty Retrial
Defense Counsel from the first retrial petition1 to the fourth retrial petition after
the death sentence became final for the Death Penalty Retrial Petitioner, andPlaintiff Saionji was the Defense Counsel from the first retrial petition of the
Death Penalty Retrial Petitioner and thereafter was the Death Penalty Retrial
Defense Counsel until the fourth retrial petition.

Legal team note: In regard to a guilty verdict which has become final, the person
sentenced may petition for retrial (Article 435 of the Code of Criminal Procedure). The
grounds for which petition for retrial are allowed are stipulated in the Code. One ofthose is “when clear evidence which should make the court render an acquittal…or finda lesser crime is newly discovered.” If it is determined that there are grounds for retrial,
the court will make a decision for start of retrial and start the retrial procedure. In mostcases, the start of retrial is not permitted, and the petition for retrial will be dismissed, so
there will be repeated retrial petitions.
11Non-party Koji Oda, attorney-at-law, is in the same position as Plaintiffs
Ikeda and Kishigami.
2.

Defendant
The Defendant (Government of Japan) is the respondent for petition fordeath penalty retrial cases and is the entity who executed and killed the Death
Penalty Retrial Petitioner at the Osaka Detention House on December 27, 2018,
during the retrial petition.
II.

Process of Criminal Trial for Death Penalty Retrial Petitioner
The case of the Death Penalty Retrial Petitioner which is the issue in this case is
as follows.
1.

Regarding the Death Penalty Retrial Petitioner
The Death Penalty Retrial Petitioner was born in Osaka in 1958. The
judgment dismissing the final appeal for the Death Penalty Retrial Petitioner
was rendered on September 13, 2004, and the first death penalty judgment
became final for the Death Penalty Retrial Petitioner on October 15, 2004.
Thereafter, the Death Penalty Retrial Petitioner was imprisoned in
the Osaka Detention House as a prisoner sentenced to death, however, he
was executed at the Osaka Detention House on December 27, 2018.

2.

Outline of the Case(translation omitted)

3.

Judgment of Final and Conclusive Trial Decision(1) First Instance decision
The first trial court rendered a judgment of the death penalty for the
Death Penalty Retrial Petitioner and S
and life imprisonment for chi
Y2 on March 23, 1995 (Plaintiffs’ Evidence A 1).
(2) Appellate court judgment
The Death Penalty Retrial Petitioner appealed the first judgment to
the Osaka High Court. Suemori also appealed. The appellate court

Translator’s note:“Y” thereafter.
2

The full name is given elsewhere in the text and is abbreviated to2

dismissed the appeal of the Death Penalty Retrial Petitioner and Suemori
on March 5, 1999.
(3) Decision of the Supreme Court
The Death Penalty Retrial Petitioner appealed the appellate court
judgment to the Supreme Court. Suemori also appealed. The Supreme
Court, which was the final appellate court, rendered a judgment todismiss the final appeal (Plaintiffs’ Evidence A 3) and the first instancedecision for the Death Penalty Retrial Petitioner became final on
September 13, 2004 (“Final Judgment”).
III.

Process of the Petitions for Death Penalty Retrial(translation omitted)
1. First Retrial Petition(1) First Petition for Death Penalty Retrial (Osaka District Court)
For the first petition for death penalty retrial, the Death Penalty
Retrial Petitioner petitioned the Osaka District Court on February 8, 2008.
(translation omitted)(2) Order to dismiss first retrial petition(translation omitted)(3) Motion for immediate appeal(translation omitted)(4) Order to dismiss immediate appeal(translation omitted)(5) Motion for special appeal(translation omitted)(6) Order to dismiss special appeal(translation omitted)
2. Second petition for death penalty retrial(1) Second petition for death penalty retrial (Osaka District Court)
On December 21, 2011, Defense Counsel made the second petition fordeath penalty retrial to the Osaka District Court (Plaintiffs’ Evidence A
5-1)(translation omitted)(2) Order to dismiss second retrial petition

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(translation omitted)(3) Motion for immediate appeal(translation omitted)(4) Order to dismiss immediate appeal(translation omitted)(5) Motion for special appeal(translation omitted)(6) Order to dismiss special appeal(translation omitted)
3. Third petition for death penalty retrial(1) Third petition for death penalty retrial (Osaka District Court)
On December 4, 2015, Defense Counsel made the third petition fordeath penalty retrial to the Osaka District Court.
(translation omitted)(2) Order to dismiss third retrial petition(translation omitted)(3) Motion for immediate appeal(translation omitted)(4) Order to dismiss immediate appeal(translation omitted)(5) Motion for special appeal(translation omitted)(6) Order to dismiss special appeal(translation omitted)
4.

Fourth petition for death penalty retrial
On September 12, 2017, Defense Counsel petitioned the Osaka District
Court for retrial for the fourth time.
(translation omitted)

IV. Execution of the Death Penalty Retrial Petitioner
On the morning of December 27, 2018, while the fourth retrial petition case waspending with the Osaka District Court, the Defendant (Government of Japan) executed
both the Death Penalty Retrial Petitioner and S (“Death Penalty Retrial Petitioners”) at
the Osaka Detention House.

4December 27 is the day prior to the so-called last business day of the year atgovernment offices. Under Article 178, Paragraph 2 of the Act on Penal Detention
Facilities and the Treatment of Inmates and Detainees, during the period of January 1 to
3 and December 29 to 31 (same for other holidays, Saturdays and Sundays), executions
are prohibited.
In the situation for the operation of executions currently, a prisoner sentenced todeath cannot know in advance when the death sentence for him or her will be carriedout. That is because, on the morning of day of the execution, he or she is informed, istaken to the place of execution and is executed. For that reason, weekdays from Monday
to Friday are days of unease and despair. From December 29 to January 3, there is nosuch worry and there is a short time of days of rest. December 27 which is the day prior
to the last business day of year for government offices is a time close to the days of rest.
Moreover, in 2018, the largest mass execution ever of 13 prisoners sentenced todeath of persons related to Aum Shinrikyo (seven persons on July 6, 2018, and six
persons on July 26, 2018) was carried out at the direction of Minister of Justice Yoko
Kamikawa.
The death sentences were carried out for the Death Penalty Retrial Petitioners only
three month after Minister of Justice Takashi Yamashita took office on October 2, 2018.
Additionally, since being after the greatest number of executions in history being carriedout, it was thought that no more executions would probably be carried out during thatyear. However, on the day prior to the last business day of the year at government offices
immediately preceding the days of rest, the death sentences for the Death Penalty Retrial
Petitioners were carried out.
V. Order to Dismiss Fourth Retrial Petition
On December 5, 2019, which was about one year after the execution of the Death
Penalty Retrial Petitioner, the Osaka District Court dismissed the fourth retrial petition(Plaintiffs’ Evidence A 7-4)
(translation omitted)
VI. Retrial Issues and Submission of New and Clear Evidence by Death Penalty
Retrial Defense Counsel
1. Framework of arguments for petition for death penalty retrial
Article 435, Item 6 of the Code of Criminal Procedure stipulates that“when clear evidence which should make the court find a lesser crime than5the crime which was found in the original judgment is newly discovered,” itis possible to petition for retrial.
What the Death Penalty Retrial Defense Counsel of the Death Penalty
Retrial Petitioner consistently argued in the first to the fourth petitions fordeath penalty retrial is that “murder-robbery of
K and W found by the
Final Judgment differs from the facts and after the cash taking, the intention
to kill for both parties arose, namely “the relationship of the consolidated
punishments of robbery and murder.” The latter is a lesser crime than thecrime which was found in the original judgment and also has a material effecton the sentencing (death penalty).
2.

Specific arguments of Death Penalty Retrial Petition Defense Counsel(translation omitted)

3.

New evidence submitted by the Death Penalty Retrial Defense Counsel
and what was intended to be proven
The evidence submitted by the Death Penalty Retrial Defense Counsel
for the first to fourth petitions for retrials to prove the above arguments (themental element for intention to kill arose after the cash robbery) and facts tobe provided are as follows.
(translation omitted)

4.

Accumulation of proof of the Death Penalty Retrial Defense Counsel
and the derailing by the execution(translation omitted)

VII. Rights of Defense Counsel of Death Penalty Retrial and the Illegal Act(translation omitted)
VIII. The Illegal Act of Defendant and Plaintiffs’ Damages
The Defendant killed the Death Penalty Retrial Petitioner who was the client of
the Death Penalty Retrial Defense Counsel of the Plaintiffs by execution.
1.

Illegality of the execution of Defendant
The right to petition for retrial is a right guaranteed by Article 39 of theConstitution and the Code of Criminal Procedure and the court which

6rendered the original judgment has jurisdiction for the retrial petition and will
decide on the petition (Articles 435, 438, and 439 of the Code of Criminal
Procedure). The judicial authority exclusively has the right to decide on the
retrial.
The right “to access the courts (justice)” requiring this judicial decision
cannot be infringed by anyone (even the government).
As mentioned above, the Death Penalty Retrial Petitioner appointed thePlaintiffs (Death Penalty Retrial Defense Counsel) and made the fourth
petition for death penalty retrial and sought a judicial (court) decision thereon.
In addition, what was being sought from the court is a central important partof the legal system and a central part of the public mission of the Death
Penalty Retrial Defense Counsel which is “to right wrongful convictions andrestore faith in the legal system."
However, due to the death (killing) of the Death Penalty Retrial
Petitioner by the Defendant, it became extremely difficult for the Plaintiffs(Death Penalty Retrial Defense Counsel) to provide the proof in the petition
for death penalty retrial.
The Death Penalty Retrial Petitioner was the source of the Plaintiffs'
fact-finding. All defense activities, from the final trial stage to the fourth
petition for death penalty retrial, were developed based on fact-finding
regarding the Death Penalty Retrial Petitioner. The Death Penalty Retrial
Petitioner himself was the one and only person who had value as evidence
and was indispensable for the Plaintiffs' defense activities.
The Defendant killed the one and only person. As a result, the Death
Penalty Retrial Petitioner as well as the one and only evidence of a first-handexperience with this petition was forever lost. The Plaintiffs became unable
to prove the facts depending on the Death Penalty Retrial Petitioner(destruction of evidence). It is no longer possible for the Plaintiffs to confirm
the facts with the Death Penalty Retrial Petitioner regarding the evidence andinformation collected and obtained other than from the Death Penalty Retrial
Petitioner (sabotage of evidence). In this way, the loss of the Death Penalty
Retrial Petitioner made it impossible for the Plaintiffs to carry out further
activities for proof in the lawsuit. The execution of the Death Penalty Retrial
Petitioner is an act of obstructing testimony by the State.
Moreover, considering that the "State" was not just the institution thatcarried out the death penalty, but was the respondent in the retrial petition7

hearing, it is an act which makes it impossible (at least extremely difficult) topetition for the retrial due to the execution, which is a remarkably unjust act
against the Plaintiffs by the other party (the respondent), which is the"eradication" of the other party by one party in the proceedings, and which is
the greatest obstruction of justice.
2.

Infringed rightThe execution of the Death Penalty Retrial Petitioner is a direct
infringement of the right to counsel for the Death Penalty Retrial Defense
Counsel.
In particular, while the defense counsel in a death penalty case has theduty to right a wrongful conviction and save the life of a prisoner sentenced
to death and to restore faith in the legal system and there is a duty to realize
the public interest aiming for a fair legal system that goes beyond personal
interests of the prisoner sentenced to death, the execution by the State has
made it impossible to carry out that duty.
It also interfered with the performance of the Defense Counsel's
mission, as it undermines the retrial petition of the prisoner sentenced to death.
It must be said to be obstruction of justice by the administrative authority, andits illegality is high.

3.

Damages
The execution of the Defendant on December 27, 2018 is an illegal
act against the right to counsel of the (Plaintiffs Death Penalty Retrial
Defense Counsel).
It has been made difficult or impossible to pursue the mission to rightthe wrongful conviction and restore faith in the legal system for the Plaintiffs,
as the Death Penalty Retrial Defense Counsel. In addition, the purpose of
the retrial petition to save the "life" entrusted by the Death Penalty Retrial
Petitioner can no longer be fulfilled.
To compensate for this, the amount of money for each Plaintiff is notless than 5 million yen as consolation money.
In addition, since it became necessary to institute this Case andappoint counsel, there is also the attorney fee of 500,000 yen as the damage
caused by the Defendant's illegal act.

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Therefore, that is why the Plaintiffs (Death Penalty Retrial Defense
Counsel) seek compensation of damages from the State that executed theretrial petitioner during the petition for retrial as stated in the Object ofClaim.

9Issues in this Case (Illegality of Execution during Retrial
Petition)In this case, the Defendant will seemingly also argue as a defense that execution
during a retrial petition is legal. Therefore, to clarify the important issues in this Suit fromthe beginning, we will clarify the Defendant's arguments (defenses) that are expected, andwe will present the Plaintiffs' rebuttal of such arguments in advance.
I.

Expected Arguments of Defendant
1.

Legal provisions
Article 442 of the Code of Criminal Procedure stipulates that “Thepetition for a retrial shall have no effect to suspend the execution of sentence;
provided, however, that the public prosecutor of the public prosecutor’s officecorresponding to the competent court may suspend the execution of sentence
until a decision on the petition for a retrial is made.”
Article 475, Paragraph 2 of the Code of Criminal Procedure stipulates
that “The order set forth in the preceding paragraph (execution order of the
Minister of Justice) shall be rendered within six months from the date when
the judgment becomes final and binding; provided, however, that, where apetition to restore the right to appeal or a petition for a retrial, or an applicationor petition for an extraordinary appeal or a pardon is made, the period before
these proceedings have finished shall not be included in this period. Neither
shall the period before the judgment becomes final nor binding for persons
who are co-defendants be included in this period.”

2.

Legal interpretation
In the proviso of Article 475, Paragraph 2 of the Code of Criminal
Procedure, there is no effect after six months has passed from the date when
the judgment becomes final and binding. That only means that the retrial
petition period is not included in the period being “six months has passed
from the date when the judgment becomes final and binding.” Conversely,
the six months provision does not affect the retrial petition after six months
have passed. If that was not the case, execution would be impossible andpunitive authority could not be exercised. There is not a suspensive effect for
execution after six months based on Article 475, paragraph 2.

10Rather, the main text of Article 442 of the Code of Criminal Procedure
clearly stipulates that “The petition for a retrial shall have no effect to suspend
the execution of sentence.” This provision is a provision for all criminal
sentences and this provision also applies for death sentences.
The balancing of rights between guaranty of the right to petition for
retrial and the securing punitive authority is made with the six months
provision of the main text of Article 472, Paragraph 2 of the Code of Criminal
Procedure.
Therefore, execution in accordance with the six months
provision of the Code of Criminal Procedure will not be illegal.
3.

Broad discretionary power of the Minister of Justice
Under the provisions of Article 442 and Article 475, Paragraph 2 of theCode of Criminal Procedure, once the adjustment period of six months passes,
executing when and which prisoner sentenced to death is solely left to thebroad discretion of the Minister of Justice. However, the discretion is notwithout limitation and is required to be exercised appropriately in accordancewith the Code of Criminal Procedure. For example, Article 479 of the Codeof Criminal Procedure stipulates the prohibition of execution for a person ina state of insanity (Article 479, Paragraph 1) and pregnant women (Article
479, Paragraph 2). The Minister of Justice selects a person to be executed
upon carefully investigating that the person is not a person falling under the
grounds for suspension of execution from among the prisoners sentenced todeath.
It is also clear in the history of criminal justice in Japan that somepeople who have been sentenced to death have been subsequently acquitted
by a retrial. Therefore, among prisoners sentenced to death, persons to be
executed are selected after the actual situation of the petition for retrial being
investigated in detail, and careful investigation determining how likely it isthat the final death sentence will be overturned by the retrial even for persons
making a petition for retrial.
In this way, in selecting a person to be executed, appropriate discretionis exercised in accordance with the purpose of each of the articles of the Codeof Criminal Procedure.

4.

In this case11

This case is not a case of a person in a state of insanity (Article 479,
Paragraph 1) or a pregnant woman. In addition, since the final trial decision,
the issues have always been the charges and the number of charges i.e.,“robbery murder (murder with an intention of taking money)” or “robbery
and murder (an intention of murder occurred after the robbery).” This was nota case where the findings would be overturned, such as claiming that
Okamoto was not the murderer or that his actions did not constitute a crime.
In view of this, the fact that Okamoto was selected as a person to be executed
does not show any deviation or abuse in exercising discretion.
Also, as mentioned above, the Minister of Justice has broad discretionas to “when” to have an execution. No deviation or abuse of discretionary
power can be recognized for the date and time selected in this case.
(translation omitted)
II.
Rebuttal of Plaintiffs (Rebuttal 1)….. International Covenant on Civil andPolitical Rights Violation
In this case, the Death Penalty Retrial Petitioner (Okamoto) was executed on
December 27, 2018, when the fourth retrial petition case was pending with the Osaka
District Court as mentioned above.
However, the execution during petition for retrial in this case violates Article 6of the International Covenant on Civil and Political Rights and must be said to be illegal.
1. International Covenant on Civil and Political Rights (ICCPR)
The International Covenant on Civil and Political Rights (“ICCPR”)
is a treaty that was adopted by the United Nations General Assembly on
December 16, 1966 and came into effect on March 23, 1976. Japan ratified
it on June 21, 1979, and it came into effect on September 21, 1979.
ICCPR Article 6 provides as follows.
(translation omitted)
As will be described in detail below, ICCPR Article 6.4 is interpreted
to include a prohibition on executions during a petition for retrial. Therefore,
execution during a petition for retrial falls under “arbitrary deprivation of life”
in violation of international law.
This is an international human rights standard (global standard) bywhich the courts of Japan are bound.

122. Protection of human rights is not a domestic issue but rather requires
an international understanding
Under ICCPR Article 6, death sentences and executions are strictly
limited to only exceptional cases, so the right to take all procedures to avoid
death sentence and execution such as retrial petition, pardon, and special
pardon procedures is guaranteed for the person sentenced to death. Not being
executed during such procedures is an internationally established basic
human right, and the execution of the Death Penalty Retrial Petitioner(Okamoto) is an illegal act that violated fundamental human rights in light ofsuch international human rights standards.
As will be described later, the main text of Article 442 of the Code of
Criminal Procedure of Japan stipulates that “The petition for a retrial shallhave no effect to suspend the execution of sentence.” If this also applies topetition for retrial for death sentences3, the conflict with the ICCPR, which
prohibits executions during retrial, becomes an issue. Therefore, the article
will be interpreted as conforming to the ICCPR, which is higher thandomestic law, or is invalid to the extent it is related to execution of death
sentences as a domestic law violating international law.
As will be described later in II. 8., based on the history of human rights
violations and the development of basic human rights concepts, these days,
the guarantee of basic human rights is not left to the policies andinterpretations of each country as a domestic issue. The human rights
protection of each country is to be administered internationally and is under
the supervision of international organizations. In other words, as long as
execution during a petition for retrial is prohibited by international law, Japanis not allowed to take measures contrary to international law, even on the basisof domestic law, as to whether or not to allow execution of a death sentence
during a petition for retrial.
In this section, we first argue that execution of a death sentence during
a petition for retrial is prohibited under international human rights law and

Article 442 is a provision for all crimes and applies to fines and imprisonment withwork and other punishments. The argument of the Legal Team is that it does not apply
to death sentences.
3

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make it clear that this provision under international law is a human right thatis guaranteed domestically regardless of the provisions of domestic law.
3. Right to life/prohibition of arbitrary deprivation of life
ICCPR guarantees the “right to life” as “Every human being has theinherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life.” in Article 6.1 and requires States Parties toestablish the legal framework required to ensure the enjoyment of the right tolife and furthermore prohibits the arbitrary deprivation of life.
This “right to life” is the foundation of all rights and without effective
protection, the protection of other rights is meaningless, and it is the supremeright.
For this reason, Article 6 is provided for at the opening of Part III of the
ICCPR which sets forth substantial rights. The Human Rights Committee,
which was established as the enforcement body of the Covenant, makes clearthat the right to life is a “fundamental right” “whose effective protection is
the prerequisite for the enjoyment of all other human rights” in the “General
Comments” which are the interpretative guideline of the ICCPR (Plaintiff’s
Evidence C 14 Paragraph 2). The ICCPR tolerates a certain level of humanrights restriction “in time of public emergency which threatens the life of thenation” in Article 4, however, the human rights stipulated in ICCPR Article
6 are non-derogable rights even during public emergency (ICCPR Article 4.2).
States Parties owe a duty to take positive measures to ensure the right tolife (ICCPR 2.2, second sentence of 6.1) and ICCPR 6.1 includes arequirement to establish by law sufficient systems and procedures to ensurethat all people have the right to not be arbitrarily deprive of life for States
Parties.
4. Position towards the death penalty of the UN… International trend
toward abolition/restriction of execution of the death penalty
Here, we will describe what kind of stance the United Nations has
towards the death penalty system.
ICCPR Article 6 itself is not a requirement for the States Parties to
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abolish the death penalty.
However, the United Nations stated in the Second Optional Protocol to
the International Covenant on Civil and Political Rights adopted by the 44th
General Assembly in December 1989 (generally called, the “Convention on
Abolition of the Death Penalty”) in the opening, “Believing that abolition of
the death penalty contributes to enhancement of human dignity andprogressive development of human rights…Noting that article 6 of theInternational Covenant on Civil and Political Rights refers to abolition of thedeath penalty in terms that strongly suggest that abolition is desirable,
Convinced that all measures of abolition of the death penalty should beconsidered as progress in the enjoyment of the right to life, Desirous toundertake hereby an international commitment to abolish the death penalty”
and the States Parties which abolished the death penalty after ratifying theSecond Optional Protocol, etc. are prohibited from reintroducing the death
penalty and are not permitted to scrap the Second Optional Protocol(Plaintiff’s Evidence C 15 Paragraph 34).
In fact, there are countries which have ratified the ICCPR and have not
ratified the Second Optional Protocol to the International Covenant on Civil
and Political Rights and have a death penalty system (Japan is one of those).
Also, ICCPR Article 6.1 prohibits “arbitrary deprivation of life” and indicatesthat “deprivations of life which are not arbitrary” are possible, so it seems thatthe death penalty is also likely permissible although based on strict conditions.
However, according to the Human Rights Committee, “the death penalty
cannot be reconciled with full respect for the right to life, and abolition of thedeath penalty is both desirable and necessary for the enhancement of humandignity and progressive development of human rights.” (Plaintiff’s Evidence
C 16 Paragraph 50). Therefore, ICCPR Article 6 allows “deprivation of life
which is not arbitrary” in Paragraph 1, and as “Nothing in this article shall be
invoked to delay or to prevent the abolition of capital punishment by any State
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Party to the present Covenant.” in Paragraph 6, the ICCPR does not actively
tolerate the death penalty system. And that is made clear from “the position
that states parties that are not yet totally abolitionist should be on an
irrevocable path towards complete eradication of the death penalty, de facto
and de jure, in the foreseeable future” (Plaintiff's Evidence C 17 Paragraph50). On November 17, 2020, the Third Committee of the United Nations
General Assembly adopted a “resolution calling for moratorium on the death
penalty.”
ICCPR Article 6 imposes strict restrictions on the States Parties thatcurrently retain the death penalty on the premise that it is necessary to abolishthe death penalty due to the importance of the right to life. It demands thatdeprivation of life by the state (execution) “must be carried out only inextremely exceptional cases.”This is the attitude the United Nations has towards the death penalty.
5. Application/authority of execution of the death penalty of the Japanese
government is strictly restricted
ICCPR Article 6.2 and below imposes strict restrictions on theapplication and enforcement authority for the death penalty in countries
where the death penalty is retained as follows.
Given the overall structure of ICCPR Article 6, the death penalty isunderstood to be the last resort after other alternatives have been exhausted
or such alternatives are considered inadequate considering that the “right tolife” set forth in Paragraph 1 is a significant right underlying all basic humanrights and the application and execution of the death penalty in countries withthe death penalty “must be construed narrowly” as follows: (Plaintiff's
Evidence C 18 Paragraphs 12, 33).
(1) ICCPR Article 6.2
First, ICCPR Article 6 states that the death penalty be imposed “onlyfor the most serious crimes” “in accordance with the law in force at the

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time of the commission of the crime and not contrary to the provisions of
the present Covenant and to the Convention on the Prevention andPunishment of the Crime of Genocide” and execution is only possible witha “final judgement rendered by a competent court.”
Due to the inherently incompatible nature governing the applicationof the death penalty in the Covenant that guarantees the right to life, therequirements stipulated in paragraph 2 must be narrowly interpreted(Plaintiff's Evidence C 19 Paragraphs 33, 35).
(2) ICCPR Article 6.4
ICCPR Article 6.4 furthermore guarantees the right to seek a special
pardon or commutation of the sentence for a person for whom a death
penalty judgment has become final. It is guaranteed as a human right that
execution is avoided as much as possible even in the death penalty phase.
As will be described below, ICCPR Article 6.4 directly prohibits“execution during a petition for retrial.”(3) ICCPR Article 6.5
ICCPR Article 6.5 prohibits the imposition of the death penalty forcrimes committed by persons below eighteen years of age and the carryingout of the death penalty on pregnant women.
(4) Application of the death penalty will not violate ICCPR (Articles, 9,10, 14, etc.)
ICCPR Article 6.2 does not permit the death penalty unless “thelaw…not contrary to the provisions of the present Covenant,” for example,
the imposition of the death penalty by a court which does not satisfy thedue process requirements of ICCPR Article 14 violates Article 14 of theCovenant and Article 6 of the Covenant. Death sentences based on
information obtained through torture or cruel, inhumane, or degrading
treatment also violate Article 7 of the Covenant and Article 6 of theCovenant (Plaintiff’s Evidence C 110 Paragraph 52-55).
(5) Execution of death penalty will not violate ICCPR (Article 7, etc.)
Even if the death sentence itself does not constitute an ICCPR
violation, its enforcement may violate the ICCPR. For example, not giving
timely notifications to death row prisoners about the execution date is a
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form of torture of death row prisoners and can violate Article 7 of theCovenant (Plaintiff's Evidence C 1 11 Paragraph 13 and Plaintiff's
Evidence C 412).
(6) Application and execution of the death penalty will not be“arbitrary”
ICCPR Article 6.1 prohibits “arbitrary deprivation of life,” The
execution by the state is a “deprivation of life,” and it must not be carriedout “arbitrarily.” Along with Articles 6.2, 6.4 and 6.5, and Article 6.1 is a
restriction on the execution authority of States Parties (Plaintiff's Evidence
C 213).
This concept of “arbitrary” has a very broad meaning.
A. Being irreconcilable with domestic law is arbitrary
The “deprivation of life,” which has no legal basis or isincompatible with other life-protecting laws and procedures, is, inprinciple, “arbitrary.” For example, the death penalty issued after
a procedure that violates the criminal procedure code is illegal andarbitrary (Plaintiff's Evidence C 114 Paragraph 11). Execution of aperson whose guilt has not been proved a reasonable doubt is also
an arbitrary deprivation of life (Plaintiff's Evidence C 1 15
Paragraph 43).
B. Violation of international law is arbitrary
The “deprivation of life” is, in principle, arbitrary if it isincompatible with international or domestic law, and therefore,
even if it complies with domestic law, it violates international law
and is “arbitrary” (Plaintiff's Evidence C 116 Paragraph 12). For
example, not notifying the execution date mentioned in (5) is aviolation of ICCPR Article 7, even if it is not a violation ofJapanese domestic law, therefore, there is a possibility of violating
ICCPR Article 6 as an “arbitrary deprivation of life.” If a crime
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Concluding observations on the 6th periodic report of Japan

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Nowak’s CCPR Commentary 3rd Ed.

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that is subject to the death penalty under Japanese criminal law
cannot be said to be “the most serious crime,” that may violate
ICCPR Article 6.
C. Violation of due process such as being inappropriate/unfair isarbitrary
Moreover, the concept of “arbitrariness” is not limited toviolations of domestic and international law, but must be
interpreted more broadly to include elements of inappropriateness,injustice, lack of predictability, and due process of law, as well as
elements of reasonableness, necessity, and proportionality. The“deprivation of life” including the death penalty, must be the lastresort after all other alternatives have been exhausted or they havebeen deemed inadequate (Plaintiff's Evidence C 117 Paragraph 12).
(7) What is required of countries which retain the death penalty
The countries which retain the death penalty have only the authority
to apply and enforce the death penalty to the extent that it does not violate
all of the above restrictions. In addition, they are obliged to prepare
domestic laws to prevent the arbitrary application and enforcement ofdeath penalty, including violations of the provisions of the Covenant(ICCPR Article 6.1, protection of life by law).
In Japan as well, these are required in view of international humanrights law and human rights codes.
6. Protection of “the right not to be executed during retrial petition” of a
prisoner sentenced to death
Based on the above, we will clarify in this section that “right topetition for retrial for a person sentenced to death” is guaranteed and“execution during petition for retrial will not be permitted” under ICCPR
Article 6.4.
(1) Interpretation of ICCPR and the importance of the views of
the Human Rights Committee
As will be described later in II. 7., after the ICCPR came into effect,
the Human Rights Committee was established as the enforcement body of17General Comment No.36
19

the Convention and was given the role of monitoring the implementation
status of the Convention and clarifying the content of the Convention(ICCPR Article 40).
The Human

RightsCommittee received

1245 individual

communications in the last ten years from 2009 to 2019 alone and has
adopted 1178 views (as of January 2020) and has been interpreting theCovenant. In addition, through the accumulation of cases of the individual
communications system, General Comments showing the interpretation
guidelines of the text have been published and revised.
The “General Comments” and “Views” of the Human Rights
Committee have become the standards for interpretation of the ICCPR.
(2) Right to petition for retrial of a prisoner sentenced to death
ICCPR Article 6.4 provides that “Anyone sentenced to death shallhave the right to seek pardon or commutation of the sentence. Amnesty,
pardon or commutation of the sentence of death may be granted in allcases.”ICCPR Article 6.4 does not include “retrial” in the language but it
is interpreted that it also includes the guarantee of the right to petition for
retrial.
The Human Rights Committee has stated in its “General Comments”
in which it presents the interpretation guideline for the ICCPR that States
parties must take all feasible measures in order to avoid wrongfulconvictions in death penalty cases to review procedural barriers toreconsideration of convictions and to reexamine past convictions on thebasis of new evidence, including new DNA evidence. (Plaintiff's Evidence
C 118 Paragraph 43). That is because ICCPR Article 6 requires the State
party to review the procedural barriers to retrial, and it is assumed that theopportunity for retrial is guaranteed for a prisoner sentenced to death under
ICCPR Article 6.4. As for the guarantee of the right to life, even for death
penalty by a final judgment, to avoid the execution as much as possible,
18

General Comment No.36
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procedures for avoiding the execution are guaranteed, and further theStates Parties are to constantly review whether such guarantee issubstantive and if there are any barriers to retrial.
Article 6 was established on the premise that each country has its
own legal system for the review of the final judgment. Therefore, the“pardon” and “commutation of the sentence” referred to in Article 6.4 of
the Covenant cannot be narrowly interpreted as being limited to the“special pardon” and “commutation of the sentence” under the Pardons
Act made by the government in Japan and naturally includes “retrial,”
which is a review of sentence (commutation).
As mentioned above, ICCPR Article 6 prohibits “arbitrary
deprivation of the right to life” in Paragraph 1, and even the death sentence
and execution by a country where the death penalty is retained must be
avoided as much as possible. In light of that, the right to appeal isguaranteed in Paragraph 2 and the death penalty cannot be carried out
unless by a final judgment. In addition, to allow those who have beensentenced to death to file any procedure to avoid execution to eliminate thepossibility of wrongful conviction and avoid execution as much as possible,
what has recognized the right to petition for any procedure to avoid
execution is ICCPR Article 6.4. If so, the right guaranteed to a prisoner
sentenced to death in ICCPR Article 6.4 is interpreted to mean the generalprocedures that can be taken to avoid execution. This includes “petition
for retrial” under the Japanese legal system (Plaintiff's Evidence C 619 inregard to the above).
(3) Right not to be executed during retrial petition is protected
It is also clear from the view of the Human Rights Committee thatthe execution of a death sentence during the procedures for pardon etc.
violates ICCPR Article 6.4.
In regard to the case where Dimitri Chikunov, who was sentenced
to death on January 24, 2000, in Uzbekistan, applied to the presidential
office for a special pardon, but before the decision was made, he was
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An article by a Japanese criminal procedure law professor.
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executed, the Human Rights Committee accepted the individual
communication and expressed the view that execution while filing anapplication for pardon etc. violates ICCPR Article 6.4 (Chikunov v.
Uzbekistan (Case No. 1043, 2002): Plaintiff's Evidence C 620).
The judgment on the application for “pardon or commutation of thesentence” guaranteed by ICCPR Article 6.4 is different from the case ofconvictions other than the death penalty, and if the death penalty is carriedout life itself is lost so it must be done before the execution. Therefore, it
is interpreted that ICCPR Article 6.4 also includes a guarantee that thedeath penalty will not be carried out while the procedure for petitioning
for a pardon and commutation of sentence (including the petition for retrial
as mentioned above) is pending.
The States Parties are required “to ensure that sentences are notcarried out before requests for pardon or commutation have been
meaningfully considered and conclusively decided upon according toapplicable procedures” in General Comment 36 which is the most recent“General Comment” adopted by 124th Session of the Human Rights
Committee (Plaintiff’s Evidence C 1 Paragraph 47).
As a State Party to the ICCPR, Japan is also required to comply withthe guarantee of the right not to be executed during petition for retrial. It
is an international human rights standard that the death penalty must not
be carried out during a petition for retrial, and that cannot be changed by
Japan's own unique interpretation.
(4) Provisions of the American Convention on Human Rights
In addition, in Article 4, Paragraph 6 of the American Convention
on Human Rights, it is specified that “Capital punishment shall not be
imposed while such a petition is pending decision by the competentauthority” continuing the guarantee of the right to seek amnesty, special
amnesty, and commutation of the sentence. Professor Nowak, aninternational human rights law expert, introduced this provision as “Thisself-evidence consequence” (Plaintiff's Evidence C 2 21 Page 158,
Footnote 315) in an article-by-article commentary on the ICCPR.
(5) Recommendations for the Government of Japan20

An article by a Japanese criminal procedure law professor

21

Nowak‘s CCPR commentary 3rd Ed.
22

Since 1999, Japan has proceeded with executions of prisoners
sentenced to death, even while petitioning for a retrial. In response, the
Human Rights Committee has repeatedly issued the following
recommendations to Japan so that petition for retrial and the petition forpardon will have the effect of suspending execution.
A. Fifth periodic report of Japan (October 30, 2008)
Concluding observations (Plaintiff’s Evidence C 3)
The Committee notes with concern…that requests for retrial or pardon
do not have the effect of staying the execution of a death sentence. (arts.
6 and 14)The State party should introduce a mandatory system of review incapital cases and ensure the suspensive effect of requests for retrial or
pardon in such cases. Limits may be placed on the number of requests
for pardon in order to prevent abuse of the suspension….
(translation omitted)
B. Sixth periodic report of Japan (July 23, 2014)
Concluding observations (Plaintiff’s Evidence C 4)
The Committee notes, furthermore,…that requests for a retrial or
pardon do not have the effect of staying the execution and are noteffective.
(translation omitted)
The State party should:[(a)～(c) omitted ]…
(d) In light of the Committee’s previous concluding observations (see
CCPR/C/JPN/CO/5, para. 17), establish a mandatory and effective
system of review in capital cases, with requests for retrial or pardon
having a suspensive effect,…〔(e)…
(translation omitted)
C. Seventh periodic report of Japan
List of Issues (Plaintiff’s Evidence C 5)
11. With reference to the previous concluding observations (para.13)
and the Committee’s evaluation of the follow-up replies of the State
party (see CCPR/C/116/2 and CCPR/C/120/2), please:23

[(a)～(b)omitted]…
(c) Clarify whether a mandatory and effective system of review has
been established in capital cases and the conditions under which
requests for retrial or pardon have a suspensive effect;…〔(d)…
(translation omitted)
As mentioned above, in the periodic reports of the Human Rights
Committee, Japan has been repeatedly recommended to rectify
executions during the petition for retrial (rectification of violation of
ICCPR Article 6), that is, the petition for retrial or pardon having asuspensive effect.
(6) Summary
As described above, ICCPR Article 6.4 prohibits execution of a
prisoner sentenced to death during a petition for retrial, and execution
contrary to this is illegal. Execution in violation of ICCPR Article 6.4 isan “arbitrary deprivation of life” and also violates ICCPR Article 6.1.
7. Why “international” human rights?
As mentioned above, focusing on the ICCPR, it has been stated that
execution during petition for retrial in violation of ICCPR Article 6 is illegal.
This court might think that human rights are fully guaranteed by Japan's
domestic law and it is not necessary to bring up international human rights
law, or that it can interpret human rights treaties independently because thecourts have authority to interpret domestic law. Therefore, we would like toconfirm once again why the concept of international human rights wasestablished.
(1) The necessity of international human rights law
The concept of international human rights arose from theremorseful repentance of World War II. Prior to World War II, humanrights were a domestic (internal affairs) issue of sovereign nations, and it
was not permissible for other nations to interfere with human rights
abuses committed within sovereign nations as internal affairs interference.
However, the nations that caused the unparalleled tragic war ofWorld War II were totalitarian nations that disregarded the human rights24

of individuals, and the Holocaust caused by Germany during World War
II (the Jewish genocide) was the tipping point for this idea. In particular,
while each country noticed that the Jewish massacre was legally carriedout under the Weimar Constitution, which was said to have the mostcomplete human rights provisions at the time, and that the persecution ofJews had begun, while each country continued to ignore that as a domestic
issue and this had a great impact on the establishment of the concept ofinternational human rights.
In this way, human rights and peace are inextricably linked fromthe remorseful repentance which paid for too many sacrifices during
World War II, and to truly protect peace, human rights cannot be kept as
a “domestic problem.” The lesson was shared by each country that itshould be protected internationally. The United Nations, which wasestablished after World War II, has set the goal of ensuring human rights,
and by stating this in the Charter of the United Nations, human rights havebecome an international concern.
What we would like to confirm here is that human rights may not
be always secured by entrusting them to domestic law, and it is necessary
to place human rights guarantees under international surveillance toeffectively secure human rights. From that, international human rights
were established and are functioning to this day under this philosophy.
(2) Establishment of ICCPRThe United Nations adopted the Universal Declaration of Human
Rights in 1948 as a common standard to be achieved by all people and allnations. Then, to make each country legally obliged to secure humanrights, in 1966, the International Covenant on Economic, Social andCultural Rights, (ICESCR) and the International Covenant on Civil andPolitical Rights (ICCPR) were adopted. In Japan, these two internationalcovenants on human rights came into effect on September 21, 1979
(ICCPR Article 49.2, ICESCR Article 27.2, and the Vienna Convention
on the Law of Treaties Article 24.1).
The ICCPR is the most important international human rights
document at the core of international human rights law and is part of theInternational Bill of Human Rights along with the Universal Declarationof Human Rights. In particular, the Universal Declaration of Human
Rights was a “declaration,” but the ICCPR has been enacted as a “legal

25

norm” with legal effect. That is, the ICCPR, as a legal norm, binds theStates parties.
(3) Ensuring enforcement of ICCPR and the importance of the Human
Rights Committee
After the ICCPR came into effect, with each nation entrusted withthe operation and interpretation of the ICCPR, the purpose of making
human rights an international concern and guaranteeing human rights
internationally would be frustrated. Therefore, the ICCPR established the
Human Rights Committee as the enforcement body of the Covenant andgave the Human Rights Committee the role of monitoring theimplementation status and clarifying the contents of the treaty (ICCPR
Article 40) upon having established the three systems of the Inter-State
Communication System (ICCPR Articles 41 and 42), Individual
Communication System (First Optional Protocol), and the government
periodic report (ICCPR Article 40) as the means for ensuring theperformance of the Covenant. The Human Rights Committee deliberates
on government reports submitted by each State Party through dialogue
with the government, publishes concluding observations, reviews
individual communications, and issues views and monitors theimplementation status of the Covenant and clarifies the contents of theCovenant, which is the above role, by adopting the ICCPR interpretation
guidelines which are called General Comments (ICCPR Article 40.4).
The Human Rights Committee, as the enforcement body of the
ICCPR, has already repeatedly reviewed the reports of all States Parties
for nearly 40 years, and has announced the concluding observations after“constructive dialogue” with the States Parties. The concluding
observations are to interpret the ICCPR through dialogue with the States
Parties.
In addition, the Human Rights Committee has received 1,245
individual communications in the last ten years from 2009 to 2019 alone
and has adopted 1178 (as of January 2020) views and has beeninterpreting the ICCPR. The views adopted by the Human Rights
Committee “exhibit some important characteristics of a judicial decision.
They are arrived at in a judicial spirit, including the impartiality andindependence of Committee members, the considered interpretation of the26language of the Covenant, and the determinative character of thedecisions.” (Plaintiff's Evidence C 722 Paragraph 11).
In addition, the General Comments adopted by the Human Rights
Committee provide guidance on how to interpret the text through theseyears of government periodic reports and the accumulation of thousandsof individual communications. Therefore, the General Comments, which
are published based on the accumulation of concluding observations andviews, have served as the most authoritative and important interpretation
guideline for the ICCPR (Plaintiff's Evidence C 823 Page 20, Plaintiff's
Evidence C 1024 Page 697).
This is also clear from the International Court of Justice (ICJ) citingof the views and the General Comments adopted by the Committee uponstating “it believes it should ascribe great weight to the interpretation
adopted by this independent body that was established specifically tosupervise the application of the Covenant” after stating that theinterpretation of the Human Rights Committee was “established practice”
in Advisory Opinion concerning the Palestinian Wall and in light of theinterpretations of the ICCPR accumulated by the Committee through theindividual communication system and the General Comments especiallyin the case which cited the concluding observations to Israel and in the
judgment of the Diallo case (Plaintiff's Evidence C 1025 Paragraph 693).
The views and General Comments of the Human Rights Committee
are, so to speak, a normative guideline common to all States parties andare treated as a major authoritative document in the interpretation of theCovenant. In this way, it is hoped that the international guarantee ofhuman rights will be realized by unifying the interpretation of the ICCPR.
The above-mentioned General Comment 36 on ICCPR Article 6(Plaintiff's Evidence C 1) is also the most authoritative and importantinterpretation guideline of the ICCPR.
8. ICCPR as a legal norm
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General Comment No.33

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A Japanese textbook of international human rights law

24

An article by a Japanese international human rights professor

25

An article by a Japanese professor of international human rights law
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(1) Treaty ratification (acceptance) and binding effect on states
The Convention is accepted by the State Parties’ agreeing that theState Parties are bound by the Convention (ratification). The ratification
procedure of the treaty requires the approval of the Diet (Japan’s
parliament) (legislative branch) (Article 73, Item 3 of the Constitution).
The democratic legitimacy of the treaty is guaranteed even within the
country by examining and approving of the treaty by the Diet, which iscomposed of representatives of the people.
By the way, there is a treaty that stipulates the rules of internationallaw concerning treaties (establishment, effect, interpretation method, etc.
of treaties). This is the Vienna Convention on the Law of Treaties(“Convention on the Law of Treaties”).
In the preamble of the Convention on the Law of Treaties, it isacknowledged that the principles of free consent and of good faith and the“pacta sunt servanda” rule are universally recognized. This principle is a
maxim of international law (Plaintiff's Evidence C 1126 Pages 304-305).
The treaties that come into effect bind the parties in accordance withsuch basic principles, and the parties are obliged to implement them ingood faith (Convention on the Law of Treaties, Article 26). In addition, it
is not possible to use the domestic law of one's own country as a basis forevading the treaty obligations (Plaintiff's Evidence C 2 27 Paragraph 4).
This is well established in international case law, with the Permanent Courtof International Justice (PCIJ) saying, “it is certain that (France) cannot
rely on her own legislation to limit the scope of her international
obligations.” (Plaintiff's Evidence C 1128 Page 305).
(2) State binding effect of ICCPR
Since the ICCPR has also been ratified after approval by the Diet,
Japan, a party to the ICCPR, must comply with the rights and obligations
stated in the ICCPR (Preamble and Article 26 of the Convention on the
Law of Treaties).
It is stipulated in ICCPR Article 2.1 that the States Parties to the
ICCPR are obliged to “respect and to ensure to all individuals within its
26

An international human rights law textbook by Japanese scholars

27

Nowak’s CCPR commentary 3rd Ed.

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An international human rights law textbook by Japanese scholars
28territory” the rights stipulated in the Covenant. In other words, the States
Parties to the ICCPR have a legal obligation to ensure the realization of all
human rights stipulated in the ICCPR immediately after becoming a State
Party. This obligation must be fulfilled in good faith in accordance withthe principles of Article 2 of the Convention on the Law of Treaties(Plaintiff's Evidence C 1229 Paragraph 3).
The ICCPR obligations that should be performed are not limited tothe central government. The ICCPR obligations (especially Article 2) arebinding on the States Parties as a whole. That is, it binds not only thegovernment but also all public institutions such as legislature, judiciary,and local institutions (Plaintiff's Evidence C 1230 Paragraph 4). That is,the courts are no exception.
Given that the Japanese government has accepted the system forensuring the international performance of the ICCPR and its system, theinterpretation of the ICCPR must be according to international standards(interpretation presented by the Human Rights Committee), and the courts
cannot ignore this and have an arbitrary interpretation.
(3) ICCPR as domestic law in Japan
A. Domestic effect of ICCPR
Since Japan has also ratified the ICCPR, it is naturally bound by the
ICCPR as a nation. However, how to incorporate the treaties concluded by
the government into domestic law is left to the provisions of theconstitution of each country.
In Japan, all substantive treaties require the approval of the Diet
(Article 73, Item 3 of the Constitution), the approved treaties areautomatically promulgated by the Emperor (Article 7, Item 1 of theConstitution), and treaties and established international laws must be
observed (Article 98, Paragraph 2 of the Constitution), so a treaty isimmediately accepted as a domestic law by promulgation without
requiring any special legislative measures (general acceptance method).
Therefore, the ICCPR has had domestic effect from the day it cameinto effect in Japan after ratification. In regard to that, in the case of the
ICESCR, since budgetary measures and legal grounds are required to29

General Comment No.31

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General Comment No.31
29

realize the rights like the right to social security, rather than specific rights
being given to individuals, it is understood that the obligation stipulated is
to make the best efforts toward the realization of rights (so-called“progressive implementation”).
B. The position of ICCPR in domestic law
What kind of domestic legal status is granted to treaties is basicallyleft to how treaties and international law are positioned in the constitutionsof each country. In the case of Japan, it is understood that the treaty ishigher than general laws because it is stipulated in Article 98, Paragraph 2of the Constitution that “The treaties concluded by Japan and establishedlaws of nations shall be faithfully observed.” This is the prevailingconstitutional view and the view of the Japanese government.
Then, since the treaties are positioned as a norm higher than thedomestic statutes, domestic laws that violate the treaties are logicallyinvalid or must be amended or abolished.
C. Judicial normativity of ICCPR
Even if a treaty has domestic legal effect, whether it is applied
directly or not, or whether it is applied (realized) only after first legislationor other measures being required is discussed as an issue of direct
applicability of the treaty (note that the terms "automatic enforceability"and "self-enforcement" of treaties are sometimes used with almost thesame meaning as direct applicability).
Since the wording of the ICCPR itself regards the individual as the
subject of rights, with the exception of provisions that appear to impose
legislative obligations on the legislature, such as ICCPR Article 20.2(“Any advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence shall be prohibited bylaw.” ), the direct application of the Covenant is possible and has judicial
normativity (Plaintiff's Evidence C 231 Page 2).
The Government of Japan also responded as follows in the first
periodic report of Japan submitted to the Human Rights Committee on
October 24, 1980 under ICCPR Article 40 and the answer of theRepresentative of the Government for the review of the 12th regular

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Nowak’s CCPR commentary 3rd ed.
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session of the Human Rights Committee which was the review session andgave an answer recognizing the precedence over domestic law of theCovenant and the direct application of the Covenant (Plaintiff’s Evidence
C 932 Paragraph 2).
“In Japan, treaties were not transmuted into ordinary Japanese law. In
practice, however, treaties had long been regarded as forming part ofJapan’s legal framework and had been given the appropriate force; inother words, the administrative and judicial authorities were obliged
to comply and ensure compliance with treaty provisions. Treaties
were deemed to have a higher status than domestic laws. That meantthat such laws as were held by the court to be in conflict with a treaty
must be either nullified or amended. In view of the greatinconvenience that would be caused by such a situation, theGovernment and the Diet scrutinized proposed treaties most carefully
to ascertain whether there was any discrepancy between them andexisting domestic law.”
D. Direct application and legal precedence being recognized by the
courtsThe direct applicability and legal precedence of the ICCPR has beenrecognized in numerous court cases.
a. Court cases which directly applied ICCPR and which
recognized the effect to give precedence in law
As court cases in which the ICCPR was directly applied andthe effect was recognized to have precedence over Japanese law,the courts in the cases of claiming national compensation for
obstructing inmates' interviews and the case of refusing
fingerprinting ruled as follows.
(a) Case claiming reparation for obstructing prisonerinterviews Takamatsu High Court (November 25,1997)
Tokushima District Court (March 15,1996)(translation omitted)

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International human rights textbook by a Japanese professor
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(b) Case of the refusal of fingerprinting (Judgment of the
Osaka High Court, October 28,1994)(translation omitted)
b. Supreme Court cases where violation of law was recognizedwhich refer to or cite ICCPR
The following cases are examples of cases in which theSupreme Court can be considered to have relied on international
human rights law, including the ICCPR to reach decisions on
unconstitutionality.
(a) Decision of unconstitutionality of the Nationality
Act (Judgment of the Supreme Court of Japan June 4,
2008)(translation omitted)(b) Decision on the share in the inheritance of an illegitimate
child (Judgment of the Supreme Court of Japan,
September 4, 2013)(translation omitted)
10. Summary
As mentioned above, human rights must be common
internationally, and for that purpose, human rights guarantee(interpretation) cannot be entrusted to each country. With this common
understanding of human rights as a foundation, a system forguaranteeing and implementing human rights internationally is
stipulated in each human rights treaty. The ICCPR was adopted tolegally bind the States Parties with the trend of internationally
guaranteeing human rights, and Japan ratified it with the approval of the
Diet.
Under the Constitution of Japan, the ICCPR has direct
applicability both in terms of language and nature, and its legal status
as a treaty is higher than that of Japanese laws and Japanese laws that
violate the ICCPR must be nullified or interpreted to conform to the32

ICCPR. It is established judicial precedent that a Japanese law contrary
to the ICCPR is denied effect to that extent.
Regarding the interpretation of the ICCPR, the Views and General
Comments presented by the Human Rights Committee are important
guidelines. From the perspective of international protection of humanrights, the interpretation of the ICCPR must be interpreted in a unified
manner internationally. It is not possible for the courts of Japan to makean original interpretation judgment different from the Views and General
Comments presented by the Human Rights Committee.

III.

Rebuttal of Plaintiffs (Rebuttal 2)…. ICCPR violation and domestic law
1.
ICCPR Article 6 and its effectAs mentioned in II., ICCPR Article 6.4 prohibits executions during
a petition for retrial, and if contrary to that, there is an "arbitrary
deprivation of the right to life" of ICCPR Article 6.1 and it is illegal as an
ICCPR violation.
As well, in Japan, the ICCPR has direct effect as domestic law andmoreover has an effect taking precedence over Japanese laws. That was
clearly held by Takamatsu High Court on November 25, 1997 and by
Tokushima District Court on March 15, 1996 and is established judicial
precedent.
2.

If there is a conflict between ICCPR and domestic law
In this way, if the ICCPR, which has direct effect as a domestic law
and has an effect taking precedence over Japanese law, conflicts with thedomestic law, it must be interpreted that the lower domestic law conforms
to the higher ICCPR or if it is not possible to change the interpretation ofdomestic law, that domestic law is null to the extent that it violates the
ICCPR and must be amended.
It has been considered in the same way in Japanese practice. That isclear from the following statements by the Government of Japan.
(1) October 1981 First periodic report of Japan

33

The memorable first periodic report of Japan was reviewed in
October 1981 after the report was submitted to the United Nations in
October 1980 (Plaintiff's Evidence C 1333).
Akinori Tomikawa, Secretary of the Planning and Coordination
Division, United Nations Bureau, Ministry of Foreign Affairs, West
German Ambassador Matsuo, and Secretary Yagi attended the review
as representatives of the Government of Japan and Representative
Tomikawa stated the following (Plaintiff's Evidence C 1434 Pages 62,
87).
“As had been pointed out by Sir Vincent Evans, in Japan treaties
were not transmuted into ordinary Japanese law. In practice,
however, treaties had long been regarded as forming part of Japan’s
legal framework and had been given the appropriate force; in otherwords, the administrative and judicial authorities were obliged tocomply and ensure compliance with treaty provisions. Treaties
were deemed to have a higher status than domestic laws. Thatmeant that such laws as were held by the court to be in conflict witha treaty must be either nullified or amended. If an individual
brought an action against the Government on the ground that thelatter had violated a treaty, the court would usually find somedomestic legislation relevant to the individual’s claim and handdown a verdict on the basis of that legislation. In the rare cases
where there was no relevant domestic legislation, the court would
directly invoke the treaty and render its verdict on the basis of thetreaty’s provisions. If the court found a conflict between domestic
legislation and the treaty, the latter prevailed.”(2) July 1988 Second periodic report of JapanThe second periodic report of the Government of Japan was
submitted to the United Nations on December 24, 1987 and wasreviewed in July 1988. Mr. Kunieda of the Human Rights and Refugees
Division of the Ministry of Foreign Affairs and Mr. Fujita (Counselor
seconded from the Ministry of Justice to the Ministry of Foreign

33

Japanese article about the periodic report34

Japanese article about the periodic report34Affairs) of the Legal Affairs Department of the Permanent Mission ofJapan in Geneva attended the review. Representative Kunieda stated:“Regarding the first point (a), according to Article 98 of theConstitution of Japan, the treaties concluded by Japan must be
observed in good faith. Treaties take precedence when they conflictwith domestic law. Prior to becoming a party to a treaty, Japan willreassess any potential problems and, if any, will take the necessary
legislative steps to resolve them”(3) Summary
These statements made by the representatives of Japan at theUnited Nations are official opinions of Japan.
In other words, the Government of Japan expressed at theUnited Nations as a formal opinion that if domestic law conflicts with
the ICCPR, the conflicting domestic law must be amended orinterpreted so that the domestic law does not conflict with the ICCPR.
3.

What should the Interpretation of domestic law concerning execution be?
(1) Article 442 of the Code of Criminal Procedure
Article 442 of the Code of Criminal Procedure stipulates that “Thepetition for a retrial shall have no effect to suspend the execution ofsentence; provided, however, that the public prosecutor of the publicprosecutor’s office corresponding to the competent court may suspend theexecution of sentence until a decision on the petition for a retrial is made.”
ICCPR Article 6.4 prohibits execution during a petition for retrial.
“The petition for a retrial shall have no effect to suspend the executionof sentence.” of Article 442 of the Code of Criminal Procedure means
execution of a sentence other than the death penalty (imprisonment withwork, imprisonment without work, fine, etc.) is appropriate, but if thedeath penalty is also to be applied, that violates the ICCPR Article 6.
For that reason, it must be interpreted that “execution of sentence”
of Article 442 of the Code of Criminal Procedure does not include“execution of the death penalty.”(2) Article 475, Paragraph 2 of the Code of Criminal Procedure
Article 475, Paragraph 2 of the Code of Criminal Procedure
stipulates that, "The order set forth in the preceding paragraph (theexecution order of the Minister of Justice) shall be rendered within six

35months from the date when the judgment becomes final and binding;provided, however, that, where a petition to restore the right to appeal ora petition for a retrial, an extraordinary appeal, or an application or petition
for a pardon is made, the period before these proceedings have finishedshall not be included in this period. Neither shall the period before thejudgment becomes final nor binding for persons who are co-defendants be
included in this period.”
A. The main text of Article 475, Paragraph 2 of the Code of
Criminal Procedure is an advisory provision
The main text of Article 475, Paragraph 2 of the Code of
Criminal Procedure provides that “The order set forth in the preceding
paragraph (the execution order of the Minister of Justice) shall berendered within six months from the date when the judgment becomes
final and binding,” however, the government also acknowledges that
this is an advisory provision without mandatory force (Reply of the
Minister of Justice to the Question of Member of the House ofRepresentatives), and that has also become clear in the case law.
(Judgment of the Tokyo District Court, March 20, 1998).
B. The proviso to Article 475, Paragraph 2 of the Code of Criminal
Procedure is important
To conform to the interpretation of ICCPR Article 6, it should
be interpreted that “Depending on the outcome of the procedures forpardon application and petitioning a retrial, the final judgment of thedeath penalty may be affected. Therefore, it is clear from the purposethat an execution order must not be issued until these procedures arecompleted. In addition, if there is a legal reason for not carrying out
the execution, the execution must not be ordered, and as long as theprocedure such as pardon or petition for retrial has not been completed,or the judgment does not become final for a person who was a codefendant, the execution order itself should not be issued. “4.

International human right standards (global standard) prohibiting
execution during retrial petition
As of the end of December 2020, 142 countries around the world
have abolished the death penalty (including countries which haveeffectively abolished it), and the death penalty is entirely abolished in the36

EU. There are only 56 retentionist countries. Only the United States andJapan retain the death penalty among so-called developed countries.
In the United States, one of the few countries where the death
penalty is retained, 22 of the 50 states and Washington DC have abolishedthe death penalty, and there are 28 states which retain the death penalty(three of which are death penalty moratorium states). In these retentionist
states, as will be described below IV 2., there are strict regulations on
executions after the death sentence becomes final, and the application of
the death penalty and executions must be avoided as much as possible andthe international human rights standard (global standard) that executions
are prohibited during procedures for avoiding the carrying out of the death
penalty is observed.
5.

Summary
As mentioned above, ICCPR Article 6, which is the international
standard for human rights, states that "execution during a petition for
retrial is illegal." State Party, Japan (including judicial authority), is boundby this, and the Code of Criminal Procedure, which is a domestic law, must
be construed to comply with this.

IV.
Rebuttal of Plaintiffs (Rebuttal 3) ….. Infringement of the Right to Obtain
Judicial Decision (Right to Access to Justice)1.

The judicial authority has exclusive jurisdiction over the retrial
petition and the administrative authority cannot decide it
In Japan, the decision for a petition for retrial is exclusively for the
judicial authority (Article 438 of the Code of Criminal Procedure), and it
is clear that the administrative authority itself does not have the power todecide this.
Moreover, the right to petition for a retrial for a prisoner sentenced
to death is a right to a decision of the judicial authority (the right to accessto justice), which is the “the right of access to the courts” guaranteed by
Article 32 of the Constitution, and it is protected by the legal procedure
guarantee of Article 31 and respect of the individual and respect for theright to life, liberty and the pursuit of happiness in Article 13 of the37Constitution, and the administrative authority cannot deprive the decisionon such a petition for retrial. The usurping of this means the infringementof judicial power by the administrative authority.
In this regard, in the United States, which is one of the few countries
where the death penalty is retained, there is a deep relationship between
executions and petition to the judiciary, and access to the justice isguaranteed for a prisoner sentenced to death.
2.

Right of access to justice of a prisoner sentenced to death in the
United States
In the United States, which has states where the death penalty isretained under a similar constitution as Japan, there is an important
relationship between execution (the authority of the state governor) andpost death penalty conviction lawsuits.
In Carol S. Steiker (Professor, Harvard University) and Jordan M.
Steiker (Professor, University of Texas) “Death Penalty andConstitutional Rules: Comparison of America and Japan” (Horitsu Jiho
Vol. 91, No. 4, Page 96: Plaintiff’s Evidence D 2 ), the actual situation in
the United States is clarified as follows.
(1) Three stages of litigation after death penalty judgment in the
United States
In the United States, the procedure for a death penalty case goes
through three stages after the defendant is found guilty and sentenced
to death at trial. There are (1) direct appeal procedures in state courts,(2) post-conviction procedures in state courts, and then (3) habeas
corpus procedures in federal courts.
If sentenced to death in the first instance trial, it is possible to
make constitutional and legal claims based on the trial record in the
direct appeal procedure. For example, it is possible to dispute whether
the submission of confession evidence in court or the instruction to
the jury was appropriate.
After the direct appeal is concluded, in the post-conviction
proceedings in the state court, arguments based on evidence outside
the trial record can be made. Prosecutor misconduct (such asconcealment of evidence of innocence) and evidence that defense
attorney did not defend effectively at the trial stage (for example, the38

defense attorney at the trial stage did not investigate the mitigation
circumstances and did not submit mitigation evidence that would begrounds for sentencing to a lighter sentence than the death penalty).
A prisoner sentenced to death can file a record-based or new
evidence-based motion in federal court, even if the motion has been
dismissed in a direct appeal or state post-conviction procedure. A
federal district court judge then decides whether the state court's
decision should be upheld. The federal habeas corpus procedures
further "check" for compliance with the standards of the United(2)States Constitution.
Three stages of litigation and execution is not possible duringthat period
It is not appropriate for a state to set an execution date andtime in the middle of this three-stage process if the sentenced person
files the motion by the deadline. The Federal Supreme Court has
never ruled that this three-stage review process is required under the
US Constitution. However, many people share the idea that each ofthese three stages is essential to ensuring the fairness of the death
penalty procedure. All states which retain the death penalty
guarantee a direct appeal and post-conviction procedures, andCongress also has legislated that state convictions be examined by
the federal government.
As mentioned above, some motions can only be filed after the
direct appeal procedure is completed. For example, there is anobjection to the capacity to be sentenced and execution method of a
prisoner sentenced to death. All jurisdictions provide procedures forfiling these motions prior to execution, and the death penalty is not
usually carried out if such motions are filed. It is expected in thedeath penalty procedure that the petition of the sentenced person will
be disposed of in an orderly manner. Both state and federal courts
are aware of such fact when the date and time of execution is set andsettle all pending suits before execution (or allow a stay of execution
to ensure a decision on the pending suits).
(3) Right to seek a judicial decision and infringement of such right.
not being permissible

39

The sentenced person’s right to seek a decision on a motion isoften protected in state courts by a state constitution guarantee of"access to courts." In federal courts, due process provisions
guarantee the right to seek court decision on a motion prior to
execution. However, as in the above-mentioned three stage
procedure, the operation that the death penalty will not be carried out
is deeply rooted in the past, and this point is rarely a problem.
As a case deviating greatly from the standard on this point, it ispossible to mention a death penalty case in the State of Texas. In 2007,
on the date that Michael Richard was executed, the Federal Supreme
Court determined to decide the constitutionality of the protocol for
drug injection in another case. The defense counsel for Mr. Richardsought a stay of the execution from the Texas Court of Criminal
Appeals which is the highest court of the criminal courts in the Stateof Texas to make the same motion in regard to drug injection.
However, when the defense counsel of Mr. Richard submitted the
motion, the time was after 5 p.m. Presiding Judge Sharon Keller of the
Texas Court of Criminal Appeals refused to decide on the motion. It
was because the court “closed at 5.” Mr. Richard was executedwithout an opportunity to have a decision on the motion. The actionof Presiding Judge Keller has been greatly criticized and was found to
be a violation of Texas state law. There was also the suggestion of
the Federal Supreme Court that there is the possibility that there weregrounds for a motion under the Federal Constitution in the motion of
Mr. Richard. Presiding Judge Keller who refused to consider the
motion of Mr. Richard was subject to disciplinary proceedings. The
great criticism of Presiding Judge Keller in the case of Mr. Richard
reinforces the dominant standard which is the decision of the courton all motions must be presented prior to proceeding with the death
penalty.
As stated above, in the states which retain the death penalty in
the United States, it is natural that execution cannot be carried out
while a motion for an objection in the three stages is pending(including the case which such is anticipated). Execution during the
judicial decision procedure is an important matter being a “contempt40

of justice” which is “obstruction of justice” of “not making a judicial
decision.”In the above paper, in the United States, even after the defendantis found guilty and sentenced to death at trial, the procedure for thedeath penalty case will proceed through the three stages of (1) direct
appeal procedure in the state court, (2) post-conviction procedure in
the state court, and (3) habeas corpus procedures in the federal court,
however, in addition, (1) there is a first instance, an appeal and acertiorari appeal to the Federal Supreme Court in ordinary stateprocedure; (2) state habeas corpus procedure has a first instance, anappeal, and a certiorari appeal to the Federal Supreme Court and (3)Federal habeas corpus procedure has a first instance, an appeal, and acertiorari appeal to the Federal Supreme Court and it is possible todispute in three stages for each of the three stages, and it becomes anine stage procedure.
This is the "super due process" for the death penalty in the
United States (Plaintiff's Evidence D 335).
3. Execution during retrial petition of prisoners sentenced to death inJapan(1) Execution during retrial petition in Japan
A. Start of execution during retrial petition in 1999
Execution during petition for retrial in Japan started withthe execution of Teruo Ono, a prisoner sentenced to death, by
Minister of Justice Hideo Usui on December 17, 1999.
The answer (opinion) of the Cabinet in this regard was:“The Minister of Justice has the authority and obligation
to issue execution orders, and to fulfill that obligation,
the Minister of Justice examines whether there are
grounds for retrial, etc., and if it is found that there is noneed for starting a retrial, the Minister of Justice willorder the execution to be carried out” “If it is found that
there is no need to start a retrial, for example, petitions
35

An article by a Japanese criminal procedure law professor, “Death Penalty

and Due Process”
41for retrial may be repeated frequently for exactly thesame reasons, and it has to be expected that there will
naturally be a dismissal in such case and it is consideredunavoidable to order the execution.”(Reply to the Question of Member of the House ofRepresentative) (Plaintiff’s Evidence D 5-1, 5-2)
B. Execution of July 13, 2017
In continuation of this, Masakatsu Nishikawa, a prisoner
sentenced to death who was petitioning for retrial, was executedby Minister of Justice Katsutoshi Kaneda.
C. Executions by Minister of Justice Yoko Kamikawa
Thereafter, executions during petition for retrial wererepeatedly carried out by Minister of Justice Kamikawa:
December 19, 2017
Teruhiko Seki and Kiyoshi Matsui, prisoners sentenced to deathJuly 6, 2018
Chizuo Matsumoto, Kiyohide Hayakawa, Yoshihiro Inoue,
Tomomitsu Niimi, Masami Tsuchiya, Tomomasa Nakagawa andSeiichi Endo, prisoners sentenced to deathJuly 26, 2018
Masato Yokoyama, Yasuo Koike (Hayashi), Kazuaki Okasaki,
Toru Toyoda, and Kenichi Hirose, prisoners sentenced to death(2) Official position of the government of Japan
As mentioned in II., the Human Rights Committee stated in the
concluding observations of the 2016 periodic report of Japan that itrecommended to the Japanese government to “establish a mandatory andeffective system of review in capital cases, with requests for retrial or
pardon having a suspensive effect.”
The Government of Japan responded to this recommendation as
follows.
12
In capital cases, counsel must be appointed in theproceedings before the judgment on the case is confirmed, andunder the strict rules of evidence, the determination of fact and thedecision to select the death penalty are made after careful
proceedings. In addition, a three-tiered judicial system is ensured
for the defendant before the judgment becomes final and conclusive.

42

A death sentence that has been finalized after these strict and careful
proceedings is rigorously executed, in principle.
13
On the other hand, if any execution order were suspended
during requests for a retrial, etc., the execution of the death penalty
would never be carried out as long as the inmate sentenced to death
repeatedly files requests for a retrial, etc., making it impossible toachieve the outcome of a criminal trial.
14 In issuing an order for the execution of the death penalty, theMinister of Justice fully and carefully inspects the relevant recordsof each case and deliberately examines whether or not there are any
grounds for commencing a retrial as stipulated in the Code of
Criminal Procedure.
15 From these viewpoints, the Government of Japan considers
that it is not appropriate to establish a system of suspending theexecution of the death penalty without exception whenever a request
for a retrial, etc., is filed.
(6)

Infringement of judicial authority and infringement of right toaccess to justice by the administrative authority
The above-mentioned Japanese government's counterargument isthat the execution of the death penalty is legal because the Minister ofJustice, who is the head of the administrative authority, examines thegrounds for the retrial and carries out the execution upon deciding there
are no grounds for retrial.
However, since the decision on retrial is the exclusive right of thecourt, which is the judicial authority, the Minister of Justice's decision on
the existence of the grounds for the retrial (the above View 14 of theGovernment of Japan) is an infringement of the judicial authority by theadministrative authority. That is, it is a violation of the separation of
powers (Articles 41, 65, and 76 of the Constitution).
Furthermore, for a prisoner sentenced to death, the petition for
retrial is a petition seeking a court decision and this is guaranteed by
Article 32 of the Constitution as the right to access to the courts, Article
31 of the Constitution which recognizes due process, and Article 13 of
the Constitution which recognizes the dignity of the individual so

43execution during a petition for retrial is also an infringement of the
judicial access right of a prisoner sentenced to death.
Therefore, the execution of the death penalty during the petition
for retrial violates Article 31 of the Constitution that recognizes due
process, and Article 13 of the Constitution that recognizes the dignity of
the individual, as well as, Article 32 of the Constitution as a violation of
the separation of powers.
4. Even Japan followed the global standard prior to 1999
Execution during a petition for retrial in Japan began in 1999. Until
then, even in Japan, under the post war 36 Constitution of Japan, theMinistry of Justice (Minister of Justice) did not carry out the death penalty
during a petition for retrial.
That was a policy on the death penalty that was made from thefollowing interpretation of the Japanese government.
This is clear from the following circulars.
(1) September 5, 1951 No. 31555 (From Director-General of the
Criminal Affairs Bureau to Prosecutor-General, Superintending
Prosecutor, and Chief Prosecutor) “Regarding report in the casethere is a retrial petition for a prisoner sentenced to death”(Plaintiff’s Evidence D6)
In this note, it stated:“There is no clear textual basis for suspending the execution when
there is a petition for a retrial of a prisoner sentenced to death,
however, it is considered appropriate to postpone the issuance of thedeath penalty execution order until the conclusion of the retrial casefor the prisoner sentenced to death and if there is a retrial petition
from a prisoner sentenced to death under the Criminal Related Report
Rules Supplement No. 4 Administrative Report 9 based on suchstance, a report concerning that from the head of the publicprosecutor office to which the prosecutor who should direct theexecution belongs is required, however, the above report is related tothe preparation for the execution and is required promptly, so it
36

The current constitution of Japan was written during the US occupation afterWorld War II and came into effect in 1947.
44

should be made as soon as possible. Notice based on the above(2)

order.”
December 27,1951 public prosecutor's assistant officer No. 8287
(From Director-General of the Criminal Affairs Bureau toSuperintending Prosecutor and Chief Prosecutor) “Treatment in
the case there is retrial petition from a prisoner sentenced to deathprior to execution after the issuance of the execution order”(Plaintiff’s Evidence D7)
In this note, it stated:“It is understood that when there is a petition for retrial, a petition
for restoration of the right to appeal, or an application for pardon
after the issuance of a sentence execution order and before the startof execution, it is not naturally always the case that the execution
should be suspended, however, executions of capital sentence areconsidered to require particularly careful handling, so if a petition
like the ones above is filed, the direction of the Attorney General(homusosai) is to be sought. If there is not enough time to seek thedirection of the Attorney General due to the time limit set forth in
the Code of Criminal Procedure, Article 476 37 , it is desirable tosuspend the execution of the death penalty and immediately seek thedirection of the Attorney General.
Then, in the case where the execution is carried out under the
direction in accordance with commission of a public prosecutor who
should direct the execution, if the above-mentioned petition is filed
after the commission and before the execution, the public prosecutor
who was commissioned for the direction of the execution will
immediately contact the public prosecutor who made suchcommission to such effect (“Commissioning Public Prosecutor”) andmake a report to the Attorney General or if there is not enough time
to contact the Commissioning Public Prosecutor, the execution willbetentatively

suspended,

andimmediately,contacttheCommissioning Public Prosecutor to such effect and report to the
Attorney General and in such case, the Commissioning Public
Prosecutor who was contacted will immediately take measures to37

Article 476: When the Minister of Justice orders the execution of the death penalty, the death
penalty shall be executed within five days.

45

seek the direction of the Attorney General as stated in the above(3)

paragraph. Notice based on the above order.”January 28, 1957 No. 1538 (To: Director-General of the
Criminal Affairs Bureau, Prosecutor-General, Superintending
Prosecutor, Chief Prosecutor) “Regarding report in the there is a
retrial petition for a prisoner sentenced to death” (Plaintiff’s
Evidence D8)“A stance to postpone the issuance of the death penalty execution
order until the conclusion of the retrial case was adopted when there
is a petition for retrial for a person sentenced to death, however, of therecent persons sentenced to death, there seems to be a tendency topetition for retrial repeatedly without substantive retrial grounds andbecause of that there is a significant obstacle to execution. Therefore,
the Criminal Affairs Bureau considers that it is unavoidable toexecute despite being while the retrial case is pending in some cases,
however, in regard to this point, it is necessary to understand thesubstance of the retrial petition for the individual cases and to decide
the propriety of the above execution upon careful consideration, so
in future, at your office, it is desirable to attach the purport of thegrounds for such petition in making a report of the petition for retrial,or to attach the transcript of the decision in making a report on thedecision on such petition, in accordance with the Criminal Related(4)

Report Rules”
There were no executions during retrial petitions prior to 1999
Until around 1960, as mentioned above, there was no
execution if there was a petition for retrial.
Around 1960, it was announced that the execution during thepetition for retrial might be sometimes unavoidable ((3) above), buteven so, before 1999 no execution was carried out during petition
for retrial (Plaintiff's Evidence D 9).
The status of executions at that time is as follows.
1960
1961
1962
1963
1964

39 people
6 persons
26 persons
12 persons
0 persons
46

1965
1966
1967
1968
1969
1970
1971
1972
1973

4 persons
4 persons23 persons
0 persons18 persons
26 persons
17 persons
7 persons
3 persons

1974
1975
1976
1977
1978
1979
1980
1981
1982

4 persons17 persons
12 persons
4 persons
3 persons
1 person1 person1 person1 person

1983
1984
1985
1986
1987
1988
1989
None from 1990 to March 1993
1993
1994

1 person1 person
3 persons
2 persons
2 persons
2 persons
1 person

1995
July 11, 1996
December 20, 1996
August 1, 1997
July 11, 1998
November 19, 1998
September 10, 1999
December 17, 1999

6 persons
3 persons
3 persons
4 persons
3 persons
3 persons
3 persons
2 persons47

7 persons
2 personsSince 1996, executions have been carried out almost twice a year,
but the persons executed were only prisoners sentenced to death who had
not petitioned for retrial.
(5) 1999 Policy Change – However, there was no reason for the change
In Japan, for more than 50 years after the war 38, there were no
executions during petition for retrial.
However, in 1999, there was 180-degree change in policy to“execution during petition for retrial.”“The Minister of Justice has the authority and obligation to issue
execution orders, and to fulfill that obligation, the Minister of Justiceexamines whether there are grounds for retrial, etc., and if it is foundthat there is no need for starting a retrial, the Minister of Justice willorder the execution to be carried out” “If it is found that there is noneed to start a retrial, for example, petitions for retrial may be repeatedfrequently for exactly the same reasons, and it has to be expected that
there will naturally be a dismissal in such case and it is consideredunavoidable to order the execution.”
However, it is clear in the context of the legal system that the
Minister of Justice does not have "the authority to judge the existence ofgrounds for retrial." That also did not change before and after December
1999.
Also, in December 1999, there was no urgent need of “having to
execute during petitioning a retrial,” and there was no change ofcircumstance but rather only a change of policy of “not executing during
petition for retrial.” As mentioned above, the Ministry of Justice executed
prisoners sentenced to death not petitioning for a retrial every year, anduntil 1999, there were two execution a year.
There was no need for the Minister of Justice to execute the death
penalty by selecting prisoners sentenced to death who are petitioning for
retrial in violation of ICCPR Article 6 and Articles 32, 31 and 13 of theConstitution.
There was no reason for the 1999 policy change.

38

WWII, which ended in 1945
48

5.

Summary
Even in Japan, executions were restricted according to the global
standard until 1999. This was changed, and the execution of the death
penalty during the petition for retrial, which is considered to be a violationof international law, was started in 1999.
However, there was no reason for such a policy change.

V.

Conclusion
As mentioned above, the arguments of the Defendant violate the ICCPR andviolate Articles 32, 31 and 13 of the Constitution which is an infringement of the rightto receive judicial decisions (justice access right).
From any viewpoint, “executions during petition for retrial” which have been
carried out since 1999 are illegal and unacceptable.

49