NGO Report on Arbitrary Detention(in penal institutions, psychiatric hospitals
and immigration detention facilities)
among the issues included in the List of Issues regarding the 7th
Periodic Report of the Government of Japan based on ICCPR (including
counterarguments to the response the Government)Table of Contents
Section 1. Introduction ...........................................................................................................................1
Section 2.

Detention in penal institutions ............................................................................................3

1. Prolonged solitary confinement; arbitrary confinement in protection cells (LOI, para. 17) .......3
2.

Obstruction to external communications; persistent obstruction to confidential

communications with attorneys (LOI, para. 17) ...............................................................................73.

De facto life imprisonment without possibility of parole (LOI, para. 17) ................................ 11

Section 3.

Detention in psychiatric hospitals .................................................................................... 15

1. Progress made in establishing a National Human Rights Institution (LOI, para. 4) ................. 15
2. Necessity and proportionality of involuntary hospitalization; guarantee of safeguards （LOI,
para.15(a)) ......................................................................................................................................... 18
3. Monitoring and reporting system of abuses (LOL, para. 15(b)) ................................................. 23
Section 4.

Detention in Immigration Facilities (LOI, para. 21) ....................................................... 24

1. Prevention of ill-treatment during deportation (LOI, para. 21(a))............................................. 24
2. Alternatives to Detention (LOI, para. 21 (e)) ............................................................................... 29
Section 5. Ratification of OPCAT; Designation of NPMs (LOI, para. 4) ...........................................35
1. Introduction: Required ratification of OPCAT ........................................................................... 36
2. Detention facilities in Japan; Institutions with visiting functions for these facilities and suchinstitutions’ actual situations ........................................................................................................... 36

Section 1. Introduction
1. Who we are
Compared to other civilized countries, Japan is a society where a person’s liberty
is constrained based on extremely arbitrary standards, and means to restore liberty are
insufficient. Grave situations for personal liberty are emerging not only in one particulararea, but across several domains such as penal institutions, psychiatric hospitals andimmigration detention facilities.
NAAD is a network of human rights organizations working to improve situations
surrounding the human rights of persons deprived of their liberty in Japan. We
collaborated in preparing this report in order to argue detention issues in Japan from a1cross-sectoral point of view. Descriptions of each organization are provided in the
Appendix 1.
2.

Detention in police cells = substitutional detention system (“daiyo-kangoku”)
The use of police cells for pre-indictment detention in Japan is notoriously known

as “daiyo-kangoku”. Suspects are subjected to 23 days of police interrogation for the
charged offense without a pre-indictment bail system. By subdividing the charged offense
into several offenses, the detention period can be extended. Carlos Ghosn was arrestedby the prosecutor and was detained in a penal institution (not in a police cell), but thiscase involved the same problem as exists in “daiyo-kangoku” in that he was subjected tolengthy interrogation.
3.

Death penalty, indefinite imprisonment, and imprisonment for a definite term

up to 30 years
The Japanese penal system has penalties of death, indefinite imprisonment, andimprisonment for a definite term up to 30 years (having been raised from 20 years to 30
years in 2004). Although the number of crimes has been decreasing in recent years,
penalties have been becoming more severe. Out of 1,800 prisoners sentenced to indefinite
imprisonment, the number granted parole each year is less than 10, and the number ofprisoners who die in prison is more than that.
4.

Approximately 130,000 persons with mental disabilities are hospitalized without

consent in psychiatric hospitals
As of June 30, 2019, a total of 129,014 persons with mental disabilities aredetained in psychiatric hospitals, mostly in private hospitals, based on the consent of thefamily (without the person’s own consent) or by means of administrative involuntary
hospitalization. However, efforts for reintegrating such persons into society are
insufficient. The Psychiatric Review Boards established in each prefecture are designatedto conduct independent reviews as experts over the treatment of mentally disabled persons
to ensure adequate medical care and protection for them, while giving due respect to their
human rights. However, the Boards’ functions do not include on-site inspections, and the
independence of the Board members is questionable. The policy of isolating mentally2disabled persons is causing them fear toward psychiatric treatments, and constituting an
obstacle to their access to appropriate medical care.
5.

Hunger strikes in protest of indefinite and/or prolonged immigration detention

are spreading nationwide, with one even resulting in death from starvation
Foreign nationals who are determined or suspected by the immigration authority
to fall under the grounds for deportation under the Immigration Control and Refugee
Recognition Act (hereinafter “Immigration Act”) are detained in immigration detention
facilities. According to the Government’s view, such foreign nationals should be detainedin principle, and necessity and reasonableness of detention are not required. As there isno limit to the detention period under a written deportation order, there is no “extension”
of the detention either, which means that once a detention is initiated, no judicial review
is conducted at regular intervals to check the legality of continuation of detention.
Although provisional release used to be granted to some extent, it has rarely been granted
in recent years. As a result, the number of people detained for more than 6 months has
drastically increased, causing a serious situation: Hunger strikes in protest of prolonged
detention are occurring in detention facilities on a nationwide scale, even with a case ofdeath from starvation. In response to this situation, inhumane measures are being taken:
The authority continues a cycle of granting 1- to 2-week provisional releases to detainees
with deteriorating health conditions due to hunger strike and re-detaining them afterwards
before again granting provisional release and re-detaining.
6. Our wishes
NAAD

sincerely

hopes

that

the

Human

RightsCommittee

makes

recommendations to the Japanese Government based on the facts, and proposes reformsof the overall detention systems of Japan in according with such principles as prohibitionof arbitrary detention and prohibition of inhumane or degrading treatment.
Section 2. Detention in penal institutions
1. Prolonged solitary confinement; arbitrary confinement in protection cells (LOI,
para. 17)3

Recommendations that we request
State Parties should revise their current systems that allow confinement inprotection cells even in cases where the inmates are protesting to the penal
institution. State Parties should also thoroughly train staff members of penal
institutions in order to ensure that solitary confinement is implemented only as a lastresort.
(1) Solitary confinement
To this day, a number of sentenced prisoners who do not meet the requirements for“isolation” stipulated by law are designated as falling under “Class 4”, one of the four
categories of restriction established not by law but by an Order of the Ministry of Justice.
Class 4 restriction can be described as solitary confinement not based on the law, because
there are hardly any differences between Class 4 restriction and “isolation” under the law.
As of October 10, 2019, the total number of sentenced prisoners who were designated as
falling under Class 4 in penal institutions nationwide was 894 (2.1%). On the other hand,as of the same date, the total number of sentenced prisoners who were isolated under thelaw in penal institutions nationwide was only 4. 1
The following table shows the periods of solitary confinement of prisoners who have beenplaced under solitary confinement for more than 10 years.

1

Response by the Ministry of Justice.

4

Prisoners in Solitary Confinement for more than 10 years
Date of Research Nov. 10,2000 July 10,2001

Oct. 1,2002

Nov. 1,2005 April 10,2008 April 10,2012 April 10,2016

137y00m37y08m38y11m42y00m52y03m49y08m

54y00m2

36y07m37y03m38y05m

41y06m43y00m47y00m34y03m3

35y06m35y07m36y07m39y08m39y01m30y06m32y08mPeriod of4

34y11m35y05m29y01m38y07m35y10m30y04m31y03yIsolation

534y09m27y10m24y00m27y01m

26y06m27y10m27y10my=year6

27y10m22y10m23y07m26y08m26y05m27y04m24y05mm=month7

22y06m22y04m22y10m26y00m25y06m23y10m24y03m822y02m21y07m22y04m25y05m23y11m22y05m24y00m921y05m21y01m22y02m25y00m23y05m21y11m23y09m10

20y11m21y00m21y01m24y10m20y05m20y05m23y09m11

20y05m19y10m21y00m23y11m20y01m20y01m19y11m20y-29y11m 12

20y04m19y09m21y00m23y11m16y05m19y11m19y00m10y-19y11m 13

19y04m19y09m20y10m23y06m16y02m16y07m

16y06m14

19y03m19y07m20y09m21y07m16y00m15y09m16y00m15

19y01m

19y06m18y10m20y03m15y11m15y02m15y01m16

18y11m17y07m18y06m

19y08m15y09m13y03m14y04m17

18y10m17y03m16y01m18y05m13y01m12y07m13y08m18

17y00m15y10m15y09m17y01m12y08m11y07m13y07m19

16y07m14y10m13y10m16y01m12y06m11y02m12y10m20

15y02m14y07m13y10m15y09m11y11m10y05m12y09m21

14y05m12y10m13y00m15y03m11y09m10y03m12y07m22

14y02m12y07m12y02m15y02m11y03m23

13y11m11y09m12y01m14y01m12y04m24

12y02m11y00m

11y06m13y07m12y03m25

11y11m10y10m11y00m13y05m12y01m26

11y01m10y05m

10y06m13y04m11y11m27

10y04m10y04m13y04m

11y08m28

10y02m10y04m13y01m11y04m29

10y03m

10y06m11y01m30

10y00m10y00m10y07m≧30ｙ

12y05m31

10y02m32

10y01mNO.of Prisoners

28

26

30

30

22

21

32

These data are based on surveys conducted by Diet member on seven different occasions between 2000 and 20205

(2) Abusive confinement in protection cells
The Act on Penal Detention Facilities and theTreatment

of

InmatesandDetainees(hereinafter the “2005 Prison Act”) allows
for the confinement of inmates in protection
cells only when the inmate shouts or makes
noise despite a prison officer's order to cease
doing so, and when such confinement is“particularly necessary” (Article 79 (1)(ii)).2
However, despite such restrictions, abusive
Above is a picture of the Nepalese man referred
to in the text under confinement in a protection
cell in a detention facility. Penal institutions
have protection cells of similar structure.

confinement in protection cells has been
occurring frequently to this day. Certain
inmates have even been confined in protection
cells due to their protests against treatment in
the facilities.

Take for example a case of a Nepalese man who was arrested at Shinjuku Police Stationfor embezzlement of lost property in March 2017 for having possessed a credit card insomeone else’s name which he had picked up on the street. He tried to leave the detention
room without obeying a detention staff member’s instruction to return his futon to a
storage room – an instruction that he did not comprehend because he could not understandJapanese. It turned into an argument (he did not resort to violence against detention
officers) and eventually, four detention officers said, “You're making fun of us, aren’tyou?”, and forcibly confined him in a protection cell at approximately 6:52 a.m. forinsubordination. In addition, after placing him in a protection cell, about 15 staff members
surrounded him and put restraining devices on him (handcuffs affixed to the waist belt,
2

Article 79 (1) of the 2005 Prison Act: When an inmate falls under any of the following categories,
prison officers may confine the inmate in a protection cell by order of the warden of the penal institution:(i) the inmate is likely to self-harm;(ii)the inmate falls under any of the following sub-categories (a) through (c), and when suchconfinement is particularly necessary in order to maintain discipline and order in the penal
institution:(a) the inmate shouts or makes noise against a prison officer's order to cease doing so;(b) the inmate is likely to inflict injury on others;(c) the inmate is likely to damage or defile facilities, equipment or any other property belonging to thepenal institution.

6

along with restraining devices around his knees and ankles). He laid in the protection cell
restrained by the devices for about two hours. At 9:18 a.m. of the same day, the handcuffs
were removed and replaced with handcuffs used for escorting, and he was transferred tothe public prosecutor's office. One of the handcuffs was removed during the interrogation
at the public prosecutor’s office, and he died of traumatic shock caused by muscle crush
syndrome.3
The above case is merely one example. The Supreme Court has taken a stance that canbe seen as condoning abusive confinement in protection cells. In the Supreme Court
Judgement of October 25, 2018, Justice Masayuki Ikegami stated the following
supplementary opinion:
The requirement of “when such confinement is particularly necessary” is not limited tocases where the mental state of the inmate is extremely unstable. Even if the inmate shouts
intentionally as an act of protest and is capable of controlling himself/herself according
to circumstances, it is reasonable to understand that confinement in protection cells is
permitted if the inmate falls under any of categories (a) to (c) and if such measure ishighly necessary in order to maintain discipline and order in the penal institution.
According to this opinion, even inmates who chant protests against their treatment can be
confined in a protection cell. Confinement in protection cells is far from being used “onlyin exceptional cases as a last resort” (Mandela Rules, Rule 45(1)).
2. Obstruction to external communications; persistent obstruction to confidential
communications with attorneys (LOI, para. 17)
Recommendations that we request(i) State Parties should revise their systems so as to prohibit censorship of andinterference with the correspondence by letters between attorneys and sentenced
prisoners regarding any legal matters.
(ii) The State Party should reform their system so that even sentenced prisoners underconfinement in protection cells are allowed to meet their attorneys and to exchange
correspondence with their attorneys.
(1) Response by the Japanese government
3This case occurred in a police detention facility. The same regulations as those regarding protection
cells in penal institutions are stipulated for detention facilities (Article 214 of the 2005 Prison Act).

7

The following is a response by the Japanese government in this regard:“As a general rule, no staff member is supposed to be present during a meeting between
an inmate and an attorney who has undertaken a case regarding the treatment of theinmate (Articles 112 and 116 of the 2005 Prison Act), and a letter from such attorney
shall be examined to the extent necessary to confirm that it is a correspondence sent froman attorney who has undertaken a case regarding the treatment of the inmate (Articles 127
and 135 of the 2005 Prison Act)”.4
However, in reality, penal institutions have continued the practice of opening and reading
the contents of letters in any circumstances as the case detailed in (2) below illustrates.
Therefore, the confidentiality of correspondence between attorneys and sentenced
prisoners is not guaranteed at all. In addition, if a sentenced prisoner is confined in a
protection cell, even an attorney who has undertaken a case regarding the treatment or adefense attorney involved in the criminal case is prohibited from visiting the prisoner andexchanging correspondence.

4

Article 127 of the 2005 Prison Act (1) When it is deemed necessary for maintaining discipline andorder in the penal institution or for the adequate conducting of correctional treatment for a sentenced
person, or for any other reasons, wardens of penal institutions may have a designated staff member
examine the letters the sentenced person sends and receives.
(2) With regard to the letters set out under the following items, designated staff members are to examine
them to the extent necessary for ascertaining that the letters fall under any of the following items;
provided, however, concerning the letters set forth in item (iii), this does not apply where there are special
circumstances in which it is deemed likely to disrupt discipline and order in the penal institution:(i) letters a sentenced person receives from a national or local government agency;(ii) letters a sentenced person sends to a national or local government agency which conducts an inquiry
into the measures taken by wardens of penal institutions toward the sentenced person, or any othertreatment the sentenced person received;(iii) letters a sentenced person sends to or receives from an attorney (including a legal professional
corporation, hereinafter the same applies in this Subsection) who conducts the duty prescribed in Article
3, paragraph (1) of the Attorney Act with regard to the measures taken by wardens of penal institutions
toward the sentenced person, or any other treatment the sentenced person received.

8

(2) Censorship of letters
An attorney was retained by a sentenced prisoner to file alawsuit against the state to seek compensation for thetreatment the prisoner experienced in the penal institution.
The attorney sent a letter about the compensation case to
the prisoner, but the envelope was opened and the letter
was read by penal institution staff.
As shown in the picture, inside the envelope was a letter
wrapped with a cover paper, which said "Do not open: A
letter regarding the compensation lawsuit against Akita
Prison (this letter falls under Article 127(2)(iii) of the2005 Prison Act)". It was easily recognizable by glancing
inside through the cover’s slit that the envelope did not contain any prohibited items. In
addition, it could be confirmed from the description on the cover that it was acorrespondence from an attorney who had undertaken a case regarding the prisoner’s
treatment (i.e., a letter which falls under Article 127(2)(iii) of the 2005 Prison Act).
Nonetheless, the staff opened the envelope and read the letter. The prisoner filed a lawsuit
against the state seeking compensation, claiming the examination of the letter was illegal.
The Akita District Court ruled that the measure taken by the Akita Prison warden to
remove the cover paper and to examine the contents of the letter was illegal. However,the Akita Branch of the Sendai High Court, the appellate court, ruled that the examination
was legal and approved the penal institution's reading of the letter’s contents5, stating thateven if the cover paper stated the letter fell under Article 127(2)(iii) of the 2005 Prison
Act, it was nonetheless necessary to confirm the statement was true, and a possibility
existed that a letter unrelated to the case would be exchanged. Prior to this case, this Court
had issued a similar ruling in which it found that opening and reading a letter was lawful.6
However, if such a decision is accepted, examination of letters’ contents by penal
institution personnel will always be permitted despite any efforts to avoid examination.
(3) Restriction of external communication by prisoners confined in protection cells

5

The Akita District Court, Judgement of March 1, 2019 (Case No. (wa) 140, 2017), The Akita Branch of
the Sendai High Court, Judgement of May 27, 2020 (Case No. (ne) 16, 2019, (ne) 44, 2019).
6
The Akita Branch of the Sendai High Court, Judgement of February 4, 2019 (Case No. (ne) 34, 2018).

9

The 2005 Prison Act stipulates that an inmate may be confined in a protection cell when
the inmate shouts or makes noise and when it is particularly necessary for maintaining
discipline in the penal institution. However, the Act does not stipulate any restriction on
meetings between an inmate confined in a protection cell and a defense attorney orprospective defense attorney.
In this regard, the Supreme Court ruled that “even if a request to visit an unsentenced
person being confined in a protection cell has been made by a defense attorney orprospective defense attorney, the warden of the penal institution may reject such request
to maintain discipline and order in the penal institution if the unsentenced person falls
under category (ii) of paragraph (1) of said Article at the time of deciding whether toallow such visit”.7
Given this Supreme Court ruling, even a defense attorney can be restricted from visiting
an inmate confined in a protection cell. In addition, as mentioned above, Justice Masayuki
Ikegami stated in his supplementary opinion to the Supreme Court's ruling that confining
an inmate in a protection cell can be considered legal even when “the inmate shouts
intentionally as an act of protest”. According to this opinion, if an inmate is protesting thetreatment carried out in a penal institution, he/she is not only placed in a protection cell
but is also denied access to a criminal defense attorney or an attorney retained forprocedures to file a complaint regarding the treatment.
Such concern has already been realized, as the following cases illustrate:a) The case of Tochigi Prison
A prisoner sentenced to life imprisonment and detained in Tochigi Prison filed a civil
lawsuit regarding the treatment carried out by the penal institution and appointed an
attorney to represent him in the case. Subsequently, the inmate was confined in a
protection cell and was no longer allowed to meet with the attorney after a December 20,
2018 meeting. On July 2, 2019, the attorney submitted an application for human rights
relief to the Tochigi Bar Association, alleging that external communication with theprisoner had been blocked for more than six months. 8 The case is currently underinvestigation by the Tochigi Bar Association.

7

1st Petty Bench of the Supreme Court, Judgement of October 25, 2018 (Minshu Vol. 72, No.5, at 940).
Asahi Shimbun “Human relief application for a female prisoner: no permission to visit for 6 months”(July 2, 2019).
810b) A case in which a prisoner confined in a protection cell was not allowed to meet thecriminal defense attorney
This is a case where a sentenced prisoner's criminal defense attorney made a request on
three occasions to visit the prisoner who was being confined in a protection cell; eachrequest was denied. The Akita District Court held that not suspending the confinement in
the protection cell and not allowing the criminal defense attorney to meet with theprisoner were not illegal, because the requirements for the confinement in a protection
cell were satisfied at the times when such requests were made.9
3. De facto life imprisonment without possibility of parole (LOI, para. 17)
Recommendations that we request(i) The requirements for parole should be objectified, and subjective requirements
such as “public sentiment” and “sentiment of contrition” should be removed.
(ii) Periodic parole hearing system should be established.
(iii) The independence of the Regional Parole Boards should be strengthened andtheir composition should be reconsidered in order to ensure appropriateness andfairness of parole decisions.
(iv) (a) The disposition to deny parole should be implemented by a decision, (b) suchdecision should be notified in writing to the prisoner along with the reasons, and (c)application for examination of the disposition of parole denial should be allowed.

(1) Criteria for the granting of parolea)

The Penal Code sets forth two requirements for granting parole to prisoners

sentenced to life imprisonment: the prisoner has served at least 10 years, and the prisoner
evinces “signs of substantial reformation” (Article 28 of the Penal Code). The criteria for
deciding whether there are “signs of substantial reformation” are provided in Article 28of the Ordinance for Treatment within Society: “A prisoner shall be granted parole in acase where the prisoner has a sentiment of contrition and a willingness to reform andrehabilitate himself/herself, and there is no risk that the prisoner would commit crimes
again, and placing the prisoner under probation is deemed appropriate for his/her reform

9

The Akita District Court, Judgement of January 24, 2020 (Case No. (wa) 10, 2018).

11and rehabilitation; provided, however, that this shall not apply to a case where it isconsidered that the public sentiment does not approve of granting parole to the prisoner”.
b)

The first problem is that parole can be denied on the grounds of “public sentiment”

even if the prisoner’s rehabilitation has progressed sufficiently and there is no longer arisk of committing crimes again. It is inappropriate to consider the “public sentiment” inaddition to the requirement that the prisoner has served for a sufficient period of time
proportionate to the gravity of the crime committed.
c)

Another problem is that the “sentiment of contrition” is premised on an admissionof guilt, and a “sentiment of contrition” is likely to be denied in cases where a person
denied the facts charged in a criminal trial and seeks a retrial after the sentence becomes
final and binding. International standards only require that the prisoner is ready toreintegrate safely into society, and to meet this requirement, a “sentiment of contrition”(i.e., an admission of guilt and repentance) by the prisoner is not necessary.
d)

The requirements for parole need to be objectified.

In addition, it is necessary to strengthen the independence of the Regional Parole Boards
and reconsider their composition to ensure appropriateness and fairness of parole
decisions.
e)Also, there are procedural problems regarding parole. In particular, prisoners

cannot submit an application for examination of the disposition of parole denial, andprisoners are not even notified of the reasons for such disposition. This is because, while
the Rehabilitation Act provides that one may submit an application for examination of adisposition implemented by the decision of the Regional Parole Board pursuant to the
Administrative Appeal Act (Article 92 of the Rehabilitation Act), it does not provide thata disposition denying parole shall be made by a decision.
Introducing objection procedures is specified as a minimum standard in the Tokyo Rules.
Therefore, the Rehabilitation Act should be amended so that (1) the disposition to denyparole is implemented by a decision, (2) the prisoner is notified in writing of the decision,
along with the reasons for it, and (3) application for an examination of the decision isallowed.
(2) The number of parolees since 2014a)Among prisoners sentenced to life imprisonment, the number of those granted

parole was 7 in 2014, 11 in 2015, 9 in 2016, 11 in 2017 and 10 in 2018. Approximately
10 parolees each year is far too few. The number of parolees excluding “those who were
12

granted parole again after parole was revoked” (as cited in the Japanese government’s
response) was 6 in 2014, 9 in 2015, 7 in 2016, 8 in 2017, and 7 in 2018.10
The following is a table detailing the number of prisoners sentenced to life imprisonmentand related information, excerpted from a document titled “Status of execution of life
imprisonment and operation of parole regarding prisoners sentenced to life imprisonment”
published by the Ministry of Justice in December 2019.
1. Status of Execution of Life imprisonment(1) Number of prisoners sentenced to life imprisonment, etc.
Table 1-1 Number of prisoners sentenced to life imprisonment, prisoners sentenced tolife imprisonment and released on parole, and prisoners sentenced to life imprisonment
who died(2009-2018)
Number of

Number of

Number of

Number of

Average term Number ofprisoners

newly arrived prisoners

prisonersofsentenced toprisoners

sentenced tosentenced to

imprisonment sentenced tolifesentenced to

life

life

of (1)

imprisonment life
serving as ofimprisonment imprisonment

imprisonment and released

the end of theon parole

prisoners
life
imprisonment

and newly

who diedreleased onparole* …(1)

year
2009

1,772

81

6

6

30y 2m

14

2010

1,796

50

9

7

35y 3m

21

2011

1,812

43

8

3

35y 2m

21

2012

1,826

34

8

6

31y 9m

14

2013

1,843

39

10

8

31y 2m

14

2014

1,842

26

7

6

31y 4m

23

2015

1,835

25

11

9

31y 6m

22

2016

1,815

14

9

7

31y 9m

27

2017

1,795

18

11

8

33y 2m30“Status of execution of life imprisonment and operation of parole regarding prisoners sentenced to life
imprisonment” (p.1) published by the Ministry of Justice in December 2019.
http://www.moj.go.jp/content/001274998.pdf
10

13

2018

1,789

Total

25

10

7

355

89

67

31y 6mNote: “Number of prisoners sentenced to life imprisonment and newly released on parole”
represents the number of prisoners sentenced to life imprisonment and who were releasedon parole excluding “those who were granted parole again after the parole was revoked”.
The number of prisoners sentenced to life imprisonment as of the end of each year
remained roughly flat from 2014 to 2018, ranging from 1,842 individuals to 1,789, but
only approximately 10 were released on parole each year. Also, it is evident that theperiods of incarceration before the granting of parole were overly long considering thatthe average length of incarceration of the newly released prisoners was between 31 and33 years.
In addition, the number of prisoners sentenced to life imprisonment who died was 23 in
2014, 22 in 2015, 27 in 2016, 30 in 2017, and 24 in 2018. This means that those who havedied in prison totaled more than twice the number of parolees.
b)

As for the number of prisoners sentenced to life imprisonment by age as of theend of 2018, there were 358 (20.0%) prisoners in their 70s and 97 (5.4%) prisoners intheir 80s or older, which shows that a substantial number of aged prisoners are detainedin prison for indefinite terms.11
The aging of inmates imprisoned for indefinite periods is becoming a serious problem,and blame can be attributed to the rarity of parole. To solve this problem, the measures
mentioned in (1)(d)and(e) are indispensable.
(3)

Opaque parole procedures: the case of Fumiaki Hoshino 12

The extreme opacity of Japanese parole procedures is illustrated by the case of Fumiaki
Hoshino, an inmate imprisoned for an indefinite period in Tokushima Prison.
Mr. Hoshino was sentenced to life imprisonment for murder, arson of inhabited buildings,
obstruction of public duty, bodily injury, and unlawful assembly with weapons, and wastransferred to Tokushima Prison on October 30, 1987. Mr. Hoshino served more than 30
years of his sentence in Tokushima Prison, but the Shikoku Regional Parole Board denied“Status of execution of life imprisonment and operation of parole regarding prisoners sentenced to life
imprisonment” (p.3) published by the Ministry of Justice in December 2019.
http://www.moj.go.jp/content/001274998.pdf
12These facts are based on “Let’s get back Mr. Fumiaki Hoshino! National Retrial Liaison Conference”.
http://fhoshino.u.cnet-ta.ne.jp/
11

14

24
210

parole on March 25, 2019. On April 18, 2019, Mr. Hoshino was transferred to the East
Japan Correctional Medical Center, where he died of liver cancer on May 30, 2019.
Since 2018, Mr. Hoshino’s defense attorneys had been aware of his deteriorating healthand requested Tokushima Prison to conduct a medical examination. However, Tokushima
Prison did not accept their requests. On March 20, 2019, the attorneys submitted an
opinion to the Shikoku Regional Parole Board and insisted that Mr. Hoshino should be
released on parole to receive proper medical care, but the Board did not grant parole. On
April 15, 2019, the attorneys requested the Board to specify the reasons for its denial.
However, the Board did not respond to this request.
The procedural problem underlying the case of Mr. Hoshino goes beyond the lack ofdisclosure of the reasons for denying parole. Mr. Hoshino's behavior was highly
favorable: He was punished only seven times during his 32 years of imprisonment. The
details of his acts and related punishments are described in the Appendix 2. l were merely
trivial acts which any ordinary person takes for granted in daily life and which did notinterfere with the discipline and order of the prison. In particular, the seventh punishment
in May 2018 was imposed for the first time in eight years and occurred just before thecommencement of the parole hearing. His support group criticized this punishment as
being imposed to negatively impact the hearing. There are no reasonable grounds to dispel
such criticism given that no reason for rejecting his parole request has been specified.
Section 3. Detention in psychiatric hospitals
1. Progress made in establishing a National Human Rights Institution (LOI, para.
4)
Recommendation that we request
The Government should establish a National Human Rights Institution（NHRI）
in accordance with the Principles relating to the Status of National Institutions(the Paris Principles).
(1) Introduction
In Section 5 below, we will argue the necessity of ratifying the Optional Protocol to theConvention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment and an appropriate national human rights remedy system in line with15

international standards. This section deals with the human rights bodies of the Ministryof Justice of Japan, which the Japanese Government has been using as an excuse ininternational society until today. We will discuss the weakness of their legal basis and, as
illustrated by several case examples related to psychiatric treatment, their dysfunction.
The response of the Japanese Government submitted to the Committee states “theGovernment continues to conduct an appropriate review of the framework for a humanrights remedy system, while bearing in mind the discussions conducted thus far”, which
is a non-response in effect. On the other hand, in the follow-up submitted at the second
cycle of the Universal Periodic Review (hereinafter “UPR”), the Government provided
the following response to Recommendations 34, 60, 62, 63, 66, 79, 84, 87, 89, 92, 114,
115, 139, 142, 149, 161, 162, 163, 164 and 166: “The human rights bodies of the Ministryof Justice provide human rights counseling centers and other services for those who suffer
discrimination, and when they become aware of suspected human rights violations, thebodies investigate the cases without delay and take appropriate measures depending on
the cases”, as if the human rights bodies are alternative mechanisms of NHRIs. 13
However, their system is not the same as that of NHRIs, nor are they functioning as analternative mechanism of NHRIs.
(2) Legal basis of the human rights bodies of the Ministry of Justice
The legal basis for the human rights protection activities conducted by the Ministry ofJustice and the Legal Affairs Bureau is the Act for Establishment of the Ministry ofJustice, which provides that the Ministry of Justice has jurisdiction over matters related
to (1) investigation of human rights violation cases and remedies for and prevention ofhuman rights violations, (2) human rights awareness-raising and, in the private sector,
promotion of human rights protection activities, (3) human rights commissioners, and (4)human rights counseling.
Among the above-mentioned matters, the most important are the investigation of humanrights violation cases and remedies for human rights violations. However, even if anapplication for remedies is made, the Ministry has no authority to conduct a compulsory
investigation and cannot investigate without the cooperation of the person who allegedly
violated human rights, because the grounds for an investigation are merely provided in
13

The Government of Japan Mid-term Report on progress made in the implementation of therecommendations issued at the second cycle of the Universal Periodic Review, January 2017.

16

circulars titled “Rules for Investigating and Handling Human Rights Violation Cases”
and “Detailed Rules for the Investigation and Handling of Human Rights Violation
Cases”.
In addition, the jurisdiction set forth in the law is narrowly interpreted by thecirculars

and in practice. For example, to warrant an investigation, a human rights violation isrequired to constitute an illegal act under the domestic law, and in principle, aninvestigation shall not be commenced upon the lapse of one year from the date of thealleged human rights violation. Therefore, the Ministry of Justice’s human rights bodies
are far from capable of conducting investigations and providing remedies in human rights
violation cases.
(3) Dysfunction of the human rights bodies as illustrated by examples regarding
psychiatric treatment
Consequently, while the number of remedial proceedings newly initiated in 2019 was
15,420, the outcome was merely “instructions” imposed in 99 (0.6%) cases, inducing theother party to reflect on their actions, and “awareness-raising” implemented in 34 (0.2%)
cases, deepening the understanding of human rights by concerned parties or communities.
These numbers clearly reveal dysfunction within this mechanism14.
Also, in the cases of Mr. N and Ms. H, in which an application was submitted to seek
remedies for human rights violations regarding psychiatric treatment as detailed below(Japanese Lawyers and Citizens Network for the Medical Aid of Welfare and Human
Rights was involved in both cases), the Legal Affairs Bureau determined that “theexistence of human rights violations could not be confirmed”, that is “non liquet”,
because “as a result of the investigation, we could not determine that the facts constituted
violations of human rights”, even though the UN Working Group on Arbitrary Detention
had concluded that both were cases of arbitrary detention.
An application was submitted in October 2017 regarding “hospitalization for medical careand protection” (Article 33 of the Act on Mental Health and Welfare for the Mentally
15404 cases out of 15420 cases were dealt with by the bodies. The details are as follows. “Support”:
138233 (89.7%) cases, “Request”: 508 (3.3%) cases, “Instructions”: 99 (0.6%) cases, “Coordination”: 41(0.3%) cases, “Postponement of Measure”: 17 (0.1%), “Absence of Violation”: 5 (0.03%), “Non liquet”:
694 (4.5%), “Awareness-raising”: 34 (0.2%) cases. “Support” is to provide legal advice and introduce
administrative agencies concerned and public/private organizations concerned. “Request” is to request aperson who can effectively deal with relief or prevention of damage to take necessary measures.
“Postponement of Measure” means not to be taken measures in consideration of the gravity of the case,the extent of showing remorse, and the presence of disciplinary measures.
14

17

Disabled, hereinafter referred to as “the Act” in this Section), alleging that compulsory
hospitalization of a person with family members based on the consent of a mayor of amunicipality constitutes a human rights violation (compulsory hospitalization based on
the consent of a mayor is exceptionally permitted when the person in question does nothave family members). However, a conclusion is yet to be made in response to thisapplication. For another application submitted in June 2019 to the same effect, it wasdetermined that “the existence of a human rights violation could not be confirmed”
because they “could not determine that the facts constituted a violation of human rights”.
In response to an application submitted in May 2019 alleging that prohibiting a personfrom making phone calls to the Human Rights Bureau of the Ministry of Justiceconstituted a human rights violation, it was determined that “the existence of a humanrights violation could not be confirmed”.
In the case of Mr. T detailed below, an application was submitted in July 2019 alleging
that continuing the compulsory hospitalization of Mr. T despite the fact that he had neverreceived any treatment since the commencement of his hospitalization in 2015 constituted
a human rights violation. However, no conclusion has been made in response to thisapplication, and Mr. T is still being subjected to compulsory hospitalization.
An application submitted in August 2019 alleged that the following incidents constituted
human rights violations: The person in question was compulsorily transferred to a
psychiatric hospital by a private transfer company without legal basis, and theadministrator of public assistance forged an application document for public assistanceusing the name of the person to cover the transportation costs. In this case, it wasdetermined that proceedings would not be initiated due to the lapse of one year from thedate of the alleged human rights violation (Article 7 (1)(v) of the Detailed Rules).
2. Necessity and proportionality of involuntary hospitalization; guarantee ofsafeguards （LOI, para.15(a))
Recommendations that we request(i) The Government should recognize the actual situation in which a large numberof persons with mental disabilities are subjected to involuntary hospitalization
based on extremely broad requirements, and should amend the law or improve18

the practice so that the necessity and proportionality of involuntary
hospitalization are rigorously determined.
(ii) The Government should make efforts to provide broader means of access toremedies for violations of rights in the context of the initiation or continuation of
hospitalization.
(iii) The Government should amend the law or improve the practice so that thereasons for involuntary hospitalization are disclosed to attorneys working toprotect the rights of the patient.
(1) Introduction
The Government responded by stating that “the procedures at the time of hospitalizationand the review proceedings during hospitalization are strictly stipulated by the law”.
Nevertheless, there remains a number of obviously unnecessary involuntary
hospitalizations. The situation has not been improved despite the recommendations madein the previous Committee meeting. 15 In this regard, the problematic legal system
mentioned by the Government and the problematic operation of laws as well as
insufficient social systems regarding mentally disabled persons are to blame for such
unnecessary involuntary hospitalizations.
We will point out the problematic issues of the psychiatric medical system in (2) below,
and introduce examples illustrating such problems in (3).
(2) Problematic issuesa) Broad requirements
The requirement for involuntary hospitalization is the “risk” of causing self-injury or
harm to others due to mental disabilities (Article 29 (1) of the Act). Involuntary
hospitalization is initiated upon the decision of the prefectural governor, but the abovementioned requirement is interpreted and applied extremely broadly. “[H]arm to others”
refers to “an act that causes harm to the life, body, chastity, honor, property or social or
legal interests of others” (Ministerial Notification No. 125 of the Ministry of Health,Labour and Welfare, April 8, 1988, “The criteria specified by the Ministry of Health,Labour and Welfare based on Article 28-2 of the Act”). For example, an act of soiling a
bed in a hotel room due to sickness-induced diarrhea (the case of Ms. H as detailed below)
15

CCPR/C/JPN/CO/6, para. 17.

19

constitutes “harm to others” because the act causes harm to others’ property. In addition,
it is not evident how far into the future such “risk” should be predicted, and it is doubtful
whether such prediction can be made through psychiatric treatment. This requirement
inherently leaves room for arbitrary interpretations, and is actually applied in an arbitraryway.
b) Lack of rigorous consideration of necessity and proportionality
Even though segregating a person in a locked ward constitutes a serious restriction onhuman rights, the necessity of such measure is not considered rigorously enough. 16 As
described below, there are cases where involuntary hospitalization was implemented andcontinued for nearly three months following a minor harm to others, such as shopliftinga can of Coke (the case of Mr. N) or soiling a hotel room bed (the case of Ms. H). In
another case, a person who used violence against his family has been involuntarily
hospitalized for more than five and a half years to this day (the case of Mr. T). We mustsay that judgements of designated psychiatrists are made without considering lessrestrictive alternatives or the proportionality. It is problematic, in the first place, that thejudgement regarding necessity of involuntary hospitalization is made by anadministrative body without going through judicial procedures. In criminal cases, theimposition of involuntary detention as a form of punishment requires judicial judgment,
where evidence is produced by the public prosecutor and an attorney defends theaccused’s rights. Judgement on detention is made while giving importance to the
proportionality in light of the nature of the crime committed. Likewise, the necessity andproportionality of involuntary hospitalization must be examined more rigorously.
c) Inadequate remedies for violation of rights
Under the current system, there is no opportunity for an attorney to be involved in defenseof one’s rights before or immediately following the initiation of detention in psychiatrichospitals. Formally, there are some remedies available after initiation of forced
hospitalization, including filing a complaint to an administrative agency or to a court.
However, such remedies are not effective, as involuntary hospitalization is very rarely
found illegal. This is because the requirements set forth in Article 29(1) of the Act areinterpreted extremely broadly, and the discretion of designated psychiatrists who conduct
16

Cf. A/HRC/30/37, United Nations Basic Principles and Guidelines on Remedies and Procedures on
the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, Principle 13 andGuideline 14.

20

medical examinations is interpreted to be quite broad as well. In other words,
administrative bodies or courts pay too much respect to the judgement of the designatedpsychiatrist who approved involuntary hospitalization, even though such judgement is
not made after careful consideration of less restrictive alternatives or the proportionality.
Thus, under the current system, people are forcibly hospitalized even when deprivationof liberty is unnecessary. These problems have been repeatedly noted by the Committee
against Torture as matters to be improved.17d) Lack of notification of reasons for detention
The Act does not require administrative bodies to inform a detainee of the reasons theydecided that “risk” of self-injury or harm to others exists. Informing the reasons isrequired by neither the Ordinance for the Enforcement of the Act nor a guideline
established by the Ministry of Health, Labour and Welfare. Even if the detainee or his/her
attorney requests the hospital or administrative body to disclose administrative
documents, the crucial reasons which justified the involuntary hospitalization are
redacted upon disclosure. Therefore, there is no means by which the detainee or his/her
attorney can discover the reasons for the involuntary hospitalization. If notification ofreasons is ensured, examination of the necessity for involuntary hospitalization will be
conducted more carefully, and arbitrary judgement will be eliminated. The requirement
would also serve to release an individual from unnecessary hospitalization. In theory,administrative organs must demonstrate the necessity of involuntary hospitalization,
which involves restrictions of liberty, by specifying the dangerousness of the individual
based on concrete facts.18(3) Case Examples
Below are three cases illustrating each of the above-mentioned problems. We emphasize
to the maximum extent possible that these cases are only the tip of the iceberg.
(a) The case of Mr. N
In July 2017, Mr. N was forcibly hospitalized for approximately two months following
an attempted theft of a can of Coke and was not immediately discharged even after the17

CAT/C/JPN/CO/1, para. 26 and CAT/C/JPN/CO/2, para. 22.
The Committee on the Covenant of Liberty noted in General Comment No. 35 the importance of
notification of reasons upon deprivation of liberty. It also noted that outdated laws regarding the mental
health care system should be amended. CCPR/C/GC/35, paras. 24-28 and para. 19. Cf. A/HRC/30/37,
United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court, Principle 7 and Guideline 5.
18

21

forced hospitalization was terminated. At the time of the attempted theft, Mr. N was
receiving outpatient treatment for schizophrenia. However, the act was not attributed tohis mental disease. In fact, Mr. N thoughtlessly said to himself, “It won't be discovered”,
and attempted to steal a Coke from the store. Mr. N had no criminal record, and theamount of property loss was incredibly insignificant given that it was an attempted theftof a can of Coke. Therefore, a serious crime was not involved, and if the case had beenhandled via criminal procedures, Mr. N would not have been detained or would have beenreleased at an early stage even if detained. The Japanese system, however, allows for
involuntarily hospitalization of someone like Mr. N and the deprivation of liberty for a
substantial period due to mental disease and an attempted theft. This case was reported to
the Working Group on Arbitrary Detention (hereinafter “WGAD”), and WGAD adopted
an opinion in 2018 that the involuntary hospitalization of Mr. N and his continued
confinement constituted arbitrary detention.19(b) The case of Ms. H
In August 2016, Ms. H was involuntarily hospitalized for three months following an
incident in which she soiled a bed in a hotel due to sickness-induced diarrhea. This act
did not constitute a crime, because causing damage to property by negligence is not
subject to punishment under the Penal Code of Japan. This case was reported to WGAD,
which adopted an opinion in 2018 that the involuntary hospitalization of Ms. H and hercontinued confinement constituted arbitrary detention.20(c) The case of Mr. T
Involuntary hospitalization of Mr. T was initiated following a fight during which he usedviolence against his family. He is still involuntarily hospitalized to this date. However,
Mr. T has been living calmly in the hospital for five and a half years without committing
any violent act. Mr. T has had doubts about his mental disease since the beginning of thehospitalization, and has been refusing any treatment or examination other than responding
to physicians’ questions. Thus, he has never received treatment for five and a half years
in effect. There is no prospect that he will be discharged as long as he continues to refuse

19

A/HRC/WGAD/2018/8

20

A/HRC/WGAD/2018/70

22treatment or examination. In addition, Mr. T has not been discharged despite the spreadof COVID-19.21
3. Monitoring and reporting system of abuses (LOL, para. 15(b))
Recommendation that we request
The Government should acknowledge that the current systems are insufficientfor effectively investigating and sanctioning abuses, and should ensure aneffective and independent monitoring and reporting system regarding
psychiatric hospitals.
The Government mentioned current mechanisms such as the Psychiatric Review Board.
However, in the domain of psychiatric hospital detention, there is no mechanism such asa “Visiting Committee” that exists in the domain of criminal detention or immigration
detention. As explained in Section 5 below, these mechanisms also have problems interms of independence, but the lack of a mechanism in the first place is even more
problematic. In addition, the above-mentioned Psychiatric Review Board was notestablished for the purpose of effectively investigating and sanctioning abuses. The actual
situation of the Psychiatric Review Board is as follows: In one year from April 2018 toMarch 2019, the total number of discharge requests reviewed by the Psychiatric Review
Boards across all prefectures was 2,551, and only 2.0% of such requests were granted on
the grounds that “continuing the hospitalization was not appropriate”. As for the otherrequests, the Boards decided that “continuing the hospitalization in the current form wasappropriate” (91.8%) and “the form of hospitalization should be changed” (3.3%).22 Also,
the total number of requests for improvement of treatment reviewed by the Psychiatric
Review Boards during the same period was 577, and the Boards decided that “thetreatment was appropriate” (88%), “the treatment was inappropriate” (6.3%), and“unknown” (5.7%). Take for example the case of S, who was involuntarily admitted to a21

In response to the spread of COVID-19, international organizations have issued opinions and guidelines
regarding detention. These guidelines note that the assessment of necessity and proportionality of detention
must be conducted even more rigorously during public health emergencies. OHCHR and WHO, Interim
Guidance on COVID-19: Focus on Persons Deprived of Their Liberty, March 2020; WGAD, Deliberation
No. 11 on prevention of arbitrary deprivation of liberty in the context of public health emergencies, May
2020.
22
Ministry of Health, Labour and Welfare “Data regarding Mental Health and Welfare - 630 Survey(2019)”.

23

psychiatric hospital for nearly one year due to a minor malformation of the cerebellum, akind of developmental disorder, and inadequate intellectual capacity. The Psychiatric
Review Board decided that “continuing the hospitalization in the current form wasappropriate” even though the effectiveness of hospital treatment was questionable in thiscase. It is extremely rare that the Boards grant a discharge or find treatment to beinappropriate, and in most cases, the Boards merely approve the hospitalization initiatedbased on broad requirements without any judicial decision. The Committee against
Torture has also repeatedly made recommendations that all necessary measures should
be taken to ensure effective and thorough judicial control over detention procedures. 23
Section 4. Detention in Immigration Facilities (LOI, para. 21)
1. Prevention of ill-treatment during deportation (LOI, para. 21(a))
Recommendations that we request
The Government should take all appropriate measures to guarantee that immigrants
are not subject to ill-treatment during their deportation. In particular, theGovernment should (i) provide detainees the same level of medical care as provided
to the general public, and (ii) take measures to prevent violence against detainees.
(1) Response by the Governmenta)

The Government responded that “an applicant for recognition of refugee status

without status of residence is granted permission for provisional stay and not detained
unless he/she is recognized as falling under certain categories such as a case where he/she
is likely to flee” (para. 179). However, in practice, if a person applies for refugee
recognition immediately after arriving at an airport, it is most likely that permission forprovisional stay is refused on the grounds that “risk of flight exists” or any other reason.
In fact, permission for provisional stay was granted to only 38 persons in 2017 24 (while
939 persons were denied), and out of 133 persons who applied for refugee recognition at
the airport, none were granted permission for provisional stay. 25 Thus, the system for

23

CAT/C/JPN/CO/1, para. 26 and CAT/C/JPN/CO/2, para. 22.

24

http://www.moj.go.jp/content/001317678.pdf

25

https://www.sangiin.go.jp/japanese/joho1/kousei/syuisyo/196/toup/t196140.pdf

24

provisional stay permission is not functioning, and most applicants for refugee
recognition without status of residence are subjected to detention.
b)

The Government responded that “deportation is suspended during refugee

recognition procedures, and maximum consideration is given to people for whom
particular humanitarian considerations are needed, by flexible implementation ofprovisional release” (para. 180). However, as of August 2020, the Government is
attempting to amend the Immigration Act so as to allow for deportation of a person going
through refugee recognition procedures — an act against the principle of non-refoulement.
In addition, “flexible implementation of provisional release” is not the case at all. In
practice, due to a notice issued on February 28, 2018 requiring restrictions on provisional
release, the granting of provisional releases has declined and detention periods have been
prolonged.
(2) Significant facts
The following are examples of ill-treatment of detainees during detention underdeportation procedures which occurred after the previous recommendation.
(a) A case of a Vietnamese man who died (March 2017)
On March 25, 2017, a Vietnamese man in his 40s (Nguyen The Hung) died ofsubarachnoid hemorrhage at the East Japan Immigration Center. He had been detained in
the immigration center since March 15, 2017. He complained of poor health since March
17, 2017 and of severe pain in his head and chest since March 21 and eventually became
incapable of moving. However, immigration officials did not send him to a hospital, andhe was found dead in his room on March 25, 2017.26(b) A case of a Turkish man who suffered a fracture (July 2018)
On July 12, 2018, at the Osaka Regional Immigration Bureau, a Turkish man (Murat
Orhan) was angered by the attitude of an official who came to check his medication status
and threw a book against a wall. Immigration officials immediately took him to a solitarycell, and seven or eight officials held him down on the floor, handcuffed him behind his

26“Vietnamese died of stroke at Japanese detention center” (Appendix 3-1)

https://www.reuters.com/article/us-japan-detention-death/vietnamese-died-of-stroke-at-japanesedetention-center-official-idUSKBN1750F825

back, and continued to hold him down even though he did not resist. His right arm was
broken due to these assaults.27(c) A case of a Brazilian man who suffered injuries (October 2018)
On October 9, 2018, at the Tokyo Regional Immigration Bureau, a Brazilian man (Andre
Kussunoki) refused to be transferred to the East Japan Immigration Center and locked
himself in a bathroom. Some officials forcibly took him out of the bathroom, held him
down on his stomach, and handcuffed him. As a result of these excessive assaults, his
fingers bled and he sustained a left rotator cuff injury. 28(d) A case of a Kurdish man who suffered an assault (January 2019)
On January 19, 2019, at the East Japan Immigration Center, a Kurdish man (Deniz)protested against immigration officials who did not give him medicines. Following thisincident, ten to fifteen staff members came into his room and assaulted him with some ofthem straddling him and handcuffing him behind his back, twisting his arms behind hisback, and pressing his throat hard with their fingers29. After suffering these assaults, he
was confined to a disciplinary cell for five days. In response to his complaint, theImmigration Bureau admitted that it was an inappropriate act, but in the lawsuit, theBureau contends that that there was no illegal conduct.
(e) A case of a Nigerian man who died of starvation (June 2019)
On June 24, 2019, a Nigerian man in his 40s died of starvation at the East Japan
Immigration Center. 30 The man had been detained since November 2015, but refused to
be deported because he had a child in Japan, who has Japanese nationality. He had applied
for provisional release four times, but none succeeded.

27“Turkish man sues Japanese gov't, says immigration officials broke his arm” (Appendix 3-2)

https://mainichi.jp/english/articles/20180529/p2a/00m/0na/043000c
28“Brazilian man sues Japanese gov't for injuries at immigration center” (Appendix 3-3)https://english.kyodonews.net/news/2019/11/8fc08ce08c58-brazilian-man-sues-japanese-govt-forinjuries-at-immigration-center.html“Footage of Kurdish man's detainment submitted to Tokyo court” (Appendix 3-4)https://english.kyodonews.net/news/2019/12/307487cd8037-footage-of-kurdish-mans-detainmentsubmitted-to-tokyo-court.html
2930“Nigerian man died on hunger strike at Japan detention center: agency” (Appendix 3-5)

https://english.kyodonews.net/news/2019/10/974a20bc637c-nigerian-man-died-on-hunger-strike-atjapan-detention-center-agency.html

26

According to the Report of the Ministry of Justice,31 immigration officials became awareon May 30, 2019 that he had been refusing to eat for about a week. On the same day, theman appealed to officials saying, “Get me out of here, whether by means of provisional
release or deportation”. From June 1 to 4, officials took him to an external hospital to
give him an IV. The hospital told the officials that it was unnecessary for him to comeback to the hospital as he could receive IVs at the detention facility. The facility's
physician examined him on June 5, 7 and 17 and tried to persuade him to eat and receive
an IV, but he refused. He became almost bedridden in his room from June 18 on. Officials
tried to persuade him to eat and receive an IV, but he died on June 24. He weighed 46.6kg,
compared to 71kg in October 2019.
The Ministry of Justice explained in its report that granting provisional releaseshould not be have been given to him, because he had a criminal record, and because
provisional release is not necessary to restore the health of those who refuse to eat. The
Immigration Bureau issued an internal notice in 2001 which states that forced treatment
is available for those who refuse to eat. However, the notice was not communicated tothe physicians, and no treatment was provided to him.
In the end, the Immigration Bureau let him die without taking any effective measures,such as the provision of medical treatment, the granting of provisional release, ordeportation.
(f) A case of female detainees subdued by a group of officials (April 2020)
On April 25, 2020, at the Tokyo Regional Immigration Services Bureau, several female
detainees protested against the denial of their provisional release despite the COVID-19
pandemic, holding up written messages such as “Give us freedom”. Then, a number ofguards, including men equipped with helmets and shields, subdued them and locked themin their rooms, after having jumped on them, holding them on the floor, and choking
them.32 There were certain female detainees who were filmed while in their underwear,
or who were the targets of obscene words.
These women, subdued suddenly by armed male guards while standing silently, sufferedfrom fear and trauma thereafter.
31

http://www.moj.go.jp/content/001306650.pdf

32“2 foreign female detainees fearing COVID-19 file suit seeking release” (Appendix 3-6)

http://www.asahi.com/ajw/articles/13410625

27

(3) Immigration Detention Facilities Visiting Committees
The “Immigration Detention Facilities Visiting Committees” were established withregard to treatment in immigration detention facilities, but they are inadequate
mechanisms. These Committees was introduced in 2010. The Immigration Act stipulates
that Committees composed of a maximum of 10 members each are to be established ineastern Japan and in western Japan, and that Committee members shall conduct visits toimmigration detention facilities and give their opinions regarding the administration of
the facilities. However, the Committees’ independence is not guaranteed, and theirauthority is restricted to a large extent by the Immigration Bureau. For example, as the
Minister of Justice (i.e., the chief of the ministry supervising the Immigration Bureau)appoints Committee members, it is possible to avoid appointing persons who are criticalof immigration detention. In addition, general affairs of the Committees are handled by
the Immigration Bureau and, in effect, Committee members cannot freely choose the dateof a visit or the area(s) to be visited. The scope of their activity is also limited to “treatment
in immigration facilities” due to the Immigration Bureau’s adopted interpretation, and it
is considered that the Committees cannot refer to the permissibility of detention or mattersrelated to provisional release.
To strengthen the independence of the Immigration Detention Facilities Visiting
Committees, it is necessary that the Committees are guaranteed independence from the
Immigration Bureau’s control.
(4) Conclusion
Ill-treatment during deportation proceedings has not been ameliorated. On the contrary,
the situation is worsening due to prolonged immigration detention and a lack of respectfor human rights.33 In particular, incidents involving death due to neglect and failure toprovide required medical care have been occurring since 2014. Therefore, we request thesame recommendation as in previous recommendations that the Government should takeall appropriate measures to guarantee that immigrants are not subject to ill-treatment
during deportation. In addition, we request recommendations that the Government
provide detainees with the same level of medical care as that provided to the generalpublic, that measures should be taken to prevent violence against detainees, and that
33

“Japan's hidden darkness: Deaths, inhumane treatment rife at immigration centers” (Appendix 3-7)https://mainichi.jp/english/articles/20190709/p2a/00m/0fe/012000c

28

independence of the Immigration Detention Facilities Visiting Committees from the
Immigration Bureau should be guaranteed.
2. Alternatives to Detention (LOI, para. 21 (e))
Recommendation that we request
The Government should abandon the mandatory detention policy and ensure that
immigration detention is exceptionally implemented as a last resort. A maximum
period of detention should be stipulated by law, and prompt judicial review ofdetention should be introduced.
(1) Response by the Governmenta)

The Government responded that “if a detainee in an immigration detention

facility has an objection to that disposition, he/she has the right to file an administrative
lawsuit” (para. 193). However, there is no judicial review regarding the “necessity ofdetention”, because necessity is not a statutory requirement for immigration detention. It
is possible to file a lawsuit to challenge the grounds for deportation which is a prerequisite
for immigration detention, but it is a regular lawsuit which normally takes one or two
years to reach a conclusion.
The law currently prohibits deportation of applicants for refugee recognition. However,in July 2020, the Ministry of Justice released an opinion of its private advisory groupsuggesting an amendment of the law to establish partial exemptions from this prohibition.
The Government intends to amend the law in this way, which may lead to consequencesthat are against the principle of non-refoulement.
b)

The Government responded by stating that the Government ensures prompt

deportation so that the detention period is not prolonged, or it otherwise utilizes
provisional release flexibly (para. 194). However, as the Government tightened thecriteria for provisional release on February 28, 2018, the number of provisional releases
decreased and detention periods were prolonged until early 2020, when COVID-19
started to spread. (Since the beginning of the COVID-19 pandemic, the number ofprovisional releases has increased to prevent infection, and the number of detainees has
decreased by nearly half. However, certain people insist that the Government should redetain those who were granted provisional release after the pandemic comes to an end.)

29

c)

The Government stated that the Government is properly recognizing refugee

status (para. 195). However, the refugee recognition rate has been far below 1% for thelast five years, and it cannot be considered that refugee status is properly recognized.
There are many cases where those who are not recognized as a refugee reapply and are
subjected to prolonged detention.

Refugee applicants / Recognition rates in JapanYear

ApplicantProcessesdRefugee

Humanitaria

recognitio

nnprotection

Refugee
Total

recognitio

Protectio

protectednn raterate

2015 7,586

5,202

27

79

106

0.52%

2.04%

2016 10,901

9,632

28

97

125

0.29%

1.30%

2017 19,629

12,846

20

45

65

0.16%

0.51%

2018 10,493

16,596

42

40

82

0.25%

0.49%

2019 10,375

11,001

44

37

81

0.40%

0.74%

*Unit = person* “Processed” reflects the total number of people for whom any disposition (grant/refusal) at thefirst tier and review process was made* Source: Press release regarding refugee recognition in 2019 by Ministry of Justice(http://www.moj.go.jp/nyuukokukanri/kouhou/nyuukokukanri03_00004.html)d)Regarding the Government response para. 198, the inadequacy of medical care has

not been improved enough – a reality that even caused a death from starvation in 2019.
Moreover, improving medical care is not sufficient to ameliorate the situation, because
long-term detention over six months has become the norm, and the health of detainees
has deteriorated due to stress and lack of exercise. The only way to maintain their healthis to stop long-term detention.
(2) The Immigration Act’s mandatory detention policy
Matters regarding immigration detention are stipulated by the Immigration Act.
Provisions regarding immigration detention have not been changed since the last report
review. A person suspected of meeting any of the grounds for deportation will be detained30

for up to 60 days based on a written detention order, and detention after the issuance of awritten deportation order can be continued indefinitely until the deportation is
implemented. Both detentions are determined by administrative agencies and are notsubject to judicial review. The detentions can be implemented unconditionally as there
are no legal requirements such as “risk of absconding” for the detentions. There is asystem of provisional release, by which a detainee is released on condition of paying adeposit, but the granting of provisional release is determined not by a court but by the
director of the immigration detention center or supervising immigration inspector. They
have broad discretion in this regard, and the reasons for rejecting a request for provisional
release are not informed to the detainee. In addition, the judgement is not made promptly;
it generally takes two to three months, or even six months in some cases, after a request
for provisional release is made. It is possible to file a regular lawsuit to challenge thedecision denying provisional release, but reaching a conclusion takes one to two years.
The Immigration Bureau does not conduct regular reviews regarding whether detention
should be continued or not.
(3) Significant facts(a) Increase in the number of detainees; Prolonged detention
According to the Ministry of Justice, the number of detainees detained for more than six
months between 2014 and 2019 at the end of each year is as indicated in the following
table. There has been a significant increase since 2017 in the number of detainees detained
for more than six months.
Out of 942 detainees detained by a written deportation order as of the end of 2019, 438
had applied for refugee recognition.34 The measures taken between 2014 and 2019 by
the Immigration Bureau regarding detention are described in (b) to (f) below.

34

http://www.moj.go.jp/content/001314665.pdf

31

duration of detention in immigration facilities
0100

31/12/2014

199

31/12/2015

207

31/12/2016

214

31/12/2017
31/12/2018
31/12/2019

200

300

500

12
6 2 4
63 14
1 2 3
63 29
3 1 3
144

600

700

67

282
190
148

400

178

97
146

138

142

32 16
5
76

113

65
63

6 months～less than 1 year

1 year～less than 1 year 6 months

1 year 6 months～less than 2 years

2 years～less than 2 years 6 months

2 years 6 months～less than 3 years

3 years～

26
76* This graph is made based on data published by the Immigration Service Agency.
http://www.moj.go.jp/content/001313446.pdf* Unit: person(b) Restraint on the granting of provisional release for the sake of the Ise-Shima
SummitFrom April to September 2016, the G7 summit and related meetings were held in Japan.
On April 1, 2016, the Director General of the Immigration Bureau issued a circularrequiring restraint on provisional releases before and after the summit on the grounds that
foreign nationals on provisional release would cause insecurity to society.
Then, on April 7, 2016, the Director General of the Immigration Bureau issued a circularrequiring the efficient and effective expelling of “foreigners who cause insecurity tosociety” such as those staying illegally in Japan or those refusing to be deported, to realizea safe and secure society in preparation for the 2020 Tokyo Olympics and Paralympics.
Although this circular did not explicitly refer to restraint on provisional releases, it isassumed that the circular had an effect of limiting provisional releases in anticipation of
the Olympics, an international event like the summit.
(c) Revocation of status of residence and detention of applicants for refugee
recognition (published on January 12, 2018)
As mentioned above, almost no refugee applicants are recognized as refugees. As a result,
those who cannot return to their country due to fear of persecution have no choice but to32

reapply for refugee recognition. However, as described below, the Japanese Government,
without radically reforming the refugee status recognition practice, has begun to restrict
the residency of reapplicants or to deport them principally without the possibility ofprovisional release.
In 2010, in an effort to provide stability to the lives of refugee applicants, Japan started
granting a residential status of “designated activities” to refugee applicants who haveresidential status and allowing them to start working after six months.
However, from September 2015 on, the Immigration Bureau started revoking the statusof residence of those who have applied for refugee recognition 3 times or more with thesame claims as those submitted in previous applications, because according to the
Immigration Bureau, the number of refugee applicants had drastically increased due tothe aforementioned treatment and some refugee applicants were abusing the system tostay and work in Japan.
In 2017, the Immigration Bureau pressed forward with this policy by issuing an
instruction titled “Trial Measures to Facilitate the Return of Reapplicants who are
Abusing or Misusing the Refugee Recognition System (Instructions)” and conducted a
trial on the revocation of the status of residence of some reapplicants and detaining themat the same time without granting provisional release.
Subsequently, on January 12, 2018, the Immigration Bureau announced a policy ofprincipally revoking the status of residence for those who apply for refugee recognition
two or more times. Refugee applicants who submit two or more applications are thus
destined to be deprived of their status of residence and detained or, if not detained,prohibited from working.
(d)Restraint on provisional release based on an instruction issued on February 28,

2018
On February 28, 2018, the Director General of the Immigration Bureau issued a document
instructing the Immigration Bureau to restrain the granting of provisional releases. 35
The instruction stated that “those who are deemed inappropriate to be granted provisional
release shall, in principle and unless they are injured or sick and unable to bear detention,
35“About proper operations pertaining to provisional release measures for persons issued with mandatory

deportation orders and more thorough enforcement of behavior monitoring (instructions)” (February 28,2018) (Appendix 3-8)33

be detained until their deportation becomes possible, even if there is no prospect ofconducting such deportation, and efforts must be made to implement their deportation”.
The instruction listed eight categories as examples of “those who are deemed
inappropriate to be granted provisional release” , including those who worked while onprovisional release, those who changed their residence without prior notification to the
Immigration Bureau, and those who applied for refugee recognition two or more times.
(e) Two-week provisional releases for and re-detention of hunger strikers
Due to the series of aforementioned detention policies, the number of provisional releases
has significantly decreased and the period of detentions has become longer. As a result,
starting around May 2019, the number of detainees who went on hunger strike in protest
of prolonged detention increased. After a detainee died from starvation at the Omura
Immigration Center in June 2019, the hunger strike spread even more widely. In responseto this situation, the Immigration Bureau began granting provisional release on condition
that the detainee ends his/her hunger strike. The detainees were granted two-weekprovisional releases, and re-detained without extension of provisional release upon
expiration of the two-week period.36 Those who were re-detained suffered from mental
distress, and there are even individuals who suffered depression or committed self-harm.
(f) Future policy of the Government
The Government is attempting to adopt a policy of vigorously promoting deportation,
including deportation of refugee applicants, without taking radical measures to prevent
long-term detention.
After the death by starvation of Nigerian man, in October 2019, the government
mentioned that it would establish “Expert Group for Detention and Deportation” (theMOJ’s private advisory group) and examine the issue of long-term detention.
Nevertheless, the report submitted by the Expert Group in 14 July 2020 denied
establishment of a maximum period of detention and introduction of judicial review, on
the other hand, it proposed amendment of acts such as to make deportation of refugee
status applicants possible and to introduce punishments for persons who refused to returnto their own countries after the deportation order is issued37.

“Re-detention of asylum seekers in Japan, hunger strikes show strained immigration system”(Appendix 3-9) https://mainichi.jp/english/articles/20190902/p2a/00m/0fe/009000c
37"Ministry panel proposes new penalties for refusing deportation" (Appendix 3-10)
http://www.asahi.com/ajw/articles/13462363
36

34

Furthermore, in 1 October 2019, the government emphasized the negative influence ofprovisional release on society by gathering the cases of crimes committed by the detainees
who are on their provisional release (it included the false cases/information) andpublishing it38.
(4) Conclusion
As described above, the Government arbitrarily resorts to immigration detention forvague purposes such as ensuring the safety and security of society, or to suppress
applications for refugee recognition, or to force those who have been issued a deportation
order to voluntarily leave Japan.
The Government explains to UN agencies that “detention is conducted only in cases
where a risk of absconding exists”, as if deportation is used as an exceptional means.
However, this is not the case. Domestically, the Government has adopted a “principle ofmandatory detention” and insists that the purpose of detention is “to prohibit activities inJapan”.39

The Government says that it will continue to implement detention extensively,

including upon those who pose no absconding risk, unless they are injured or sick andunable to bear detention.
The Government’s response to hunger strikes – granting a mere two-week provisional
release to those for whom detention is not necessary, and re-detaining them after two
weeks – constitutes arbitrary detention, and it is an impermissible act which disregards
human dignity.
In conclusion, we request that the Committee recommend that the Japanese
Government (1) establish requirements for immigration detention by law so as to ensurethat detention is used only as a last resort, (2) establish the maximum duration of detention
by law, and (3) introduce prompt judicial review over immigration detention.
Section 5. Ratification of OPCAT; Designation of NPMs (LOI, para. 4)

38
39“Deleted website of Immigration Services Agency of Japan” (Appendix 3-11)“Sample of the statement paper by the state” (Appendix 3-12)35

Recommendations that we request
On the assumption that Japan ratifies OPCAT, we request the following
recommendations that the Government:(i) Establish an NHRI and enhance the complaint review functions;(ii) Enhance the independence of each Visiting Committee established for
detention facilities under the jurisdiction of the Ministry of Justice; and(iii) Establish a Visiting Committee for compulsory measures taken inpsychiatric hospitals and children’s self-reliance support facilities under
the jurisdiction of the Ministry of Health, Labour and Welfare.
1. Introduction: Required ratification of OPCATAs already mentioned in Section 3-1, and as pointed out in many reports, Japan
has not yet established an independent national human rights institution. In addition tothis problem, this Section deals with the necessity of ratification of the Optional Protocol
to the Convention against Torture (hereinafter “OPCAT”) and establishment of National
Preventive Mechanisms (hereinafter “NPMs”) for prevention of arbitrary detention.
The Committee against Torture urged Japan, in paragraph 26 of the Concluding
Observations on the Second Periodic Report of Japan, adopted by the Committee at its
fiftieth session (May 6 to 31, 2013), to accelerate domestic discussion and ratify OPCAT
as soon as possible, noting Japan’s commitment in the context of the UPR.
Also, in the procedures of the UPR third cycle (2017), a total of twelve countries– Slovenia, Guatemala, Georgia, Chile, Cabo Verde, Ukraine, Uruguay, Ghana, Denmark,Spain, Turkey and Yemen – recommended Japan ratify OPCAT, and Japan has accepted
these recommendations.
OPCAT consists of “two pillars” – international bodies and national bodies. As an“international body”, the Subcommittee on the Prevention of Torture, a subcommittee of
the Committee against Torture (hereinafter “SPT”), regularly visits the detention placesof State Parties and makes recommendations regarding the conditions of detention or
prevention of torture. On the other hand, State Parties are supposed to set up, designate,
or maintain one or several bodies (i.e., NPMs) which visit detention places.
2. Detention facilities in Japan; Institutions with visiting functions for these facilities
and such institutions’ actual situations

36

(1)

If Japan ratifies OPCAT, what kind of institution can possibly be designated as an

NPM?
The detention places with relevance to OPCAT are: penal institutions (prisons,detention houses); police detention centers; immigration detention facilities; psychiatrichospitals (medical institutions used for involuntary hospitalization or hospitalization for
medical care and protection); Designated Medical Institutions for Hospitalization underthe medical care and supervision system; juvenile training schools or juvenileclassification homes; and children's self-reliance support facilities which can implement
compulsory measures with family court permission.
(2)

The institutions with visiting functions for the above-mentioned facilities are: thePenal Institution Visiting Committee and the Complaints Investigation and Review
Committee (Complaints Review Committee) for penal institutions; the Detention
Facility Visiting Committee for police detention facilities; the Immigration Detention
Facilities Visiting Committee for immigration detention facilities; and Visiting
Committees for juvenile training schools and juvenile classification homes.
However, these institutions with visiting functions significantly lackindependence from the authorities. During the review of the third report of Japan by theCommittee against Torture, Mr. Alessio Bruni, a member from Italy, asked whether the
Penal Institution Visiting Committee was allowed to visit penal institutions without
prior notice, and the Japanese Government replied that the Visiting Committee is notlegally obliged to give prior notice, but its visitation is often arranged beforehand for thesake of effectiveness. As for the Penal Institution Visiting Committee and the Visiting
Committees for juvenile training schools and juvenile classification homes, persons
recommended by the Bar Association are always appointed as members, but with regard
to the Detention Facility Visiting Committee and the Immigration Detention Facilities
Visiting Committee, recommendations by the Bar Association can be exceptionallyrejected. In addition, the appointment of members other than lawyers and physicians isleft to the authorities relevant to each facility. Therefore, it is possible that members
who lack expertise or enthusiasm are appointed.
On the other hand, the Complaints Review Committee consists of academics(criminal law), lawyers, physicians, and former members of the Voluntary Interview
Committee with a higher level of expertise compared to the Visiting Committee members.
However, it lacks legal basis, as evidenced by its establishment as a provisional de facto
37body until an NHRI is established. In addition, only one Complaints Review Committee
exists in Japan, and it lacks its own secretariat. Therefore, it is not ready to conduct
investigations on its own, and general affairs of the Committee are handled by the
Secretarial Division of the Secretariat of the Minister of Justice.
(3)

As for psychiatric hospitals, Psychiatric Review Boards are established in eachprefecture. However, as stated in Section 3, even though these Psychiatric Review Boards
may visit hospitals to hear the opinions of persons concerned in the course of reviewing
the appropriateness of detention or treatment during detention, such visits are conductedbased on the voluntary consent of the director of such facilities. Boards do not have theright to conduct compulsory visits. Designated Medical Institutions for Hospitalization
under the medical care and supervision system do not have external institutions withvisiting or reviewing functions. Children's self-reliance support facilities have a third
party review system focused on their welfare services, but there is no external inspection
system focused on detention.
(4)

Whichever organizations are to be designated as NPMs, significant difficulties

must be overcome. As mentioned above, there is no visiting institution for certain
detention facilities. At the same time, however, designating visiting institutions for eachdetention facility as NPMs can be an opportunity to improve the existing institutions suchas Visiting Committees or the Complaints Review Committee, so that they become
human rights institutions of a higher standard which are truly independent from theauthorities and operate in accordance with UN norms.
For example, it will be possible for Visiting Committees all over the country to
make recommendations based on international human rights law rather than national laws,
and request implementation of international human rights standards in every detention
place in Japan. Subtle interpretations of national laws, which are far from international
standards, will become meaningless. This will have a significant effect on the
improvement of the legal system and human rights situation in Japan.

38