CAT Network JapanThe NGO Report on the Second
Periodic Report of the Japanese
Government under Paragraph 1
of Article 19 of the Convention
Against Torture and Other Cruel,
Inhuman or Degrading Treatment
or Punishment
April 20131

contents
About our Coalition and the Purpose of this Alternative Report: ..................................... 3
Contact Person about this Report........................................................................................ 3
Articles 1 and 4 ..................................................................................................................... 4
Articles 5 and 7 ..................................................................................................................... 6
Article2................................................................................................................................... 7
Article3................................................................................................................................... 9
Article16............................................................................................................................... 17
Prison Condition in Japanese Prison ................................................................................ 20
Life imprisonment and the system of Parole ................................................................ 20
Solitary confinement ....................................................................................................... 25
Disciplinary measures / Punishments (in prison)......................................................... 29
Health, Sanitation and Medical Treatment in Prison .................................................. 31
The Grievance Mechanism ............................................................................................. 34

2

About our Coalition and the Purpose of this Alternative Report:

The CAT Network Japan is a coalition of NGOs working domestically to protect andpromote human rights of persons deprived of their liberty in prisons, immigration
detention centers, and psychiatric hospitals. A brief introduction of each NGO follows.
This alternative report on the initial report of the Japanese government under theConvention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (hereinafter referred to as “the Convention”) was compiled for the purposeof rendering the additional information and our concerns relating the issues arisingunder the Convention to the Committee Against Torture (hereinafter referred to as“the Committee”). Because of our limited resources and experiences, this report mainly
focuses on issues concerning treatment of inmates in police detention cells, prisons andimmigration detention centers, and patients in mental health institutions. We would
be glad if this report would be one of the references of the Committee’s members.

Contact Person about this Report
is as Follows:

Ryosuke MATSUURA(Mr)The Center for Prisoners’ Rights Japan, c/o Amicus Law Office, Raffine Shinjuku #902,
1-36-5, Shinjuku, Shinjuku-ku, Tokyo, Japan, 160-0022
E-mail: cpr@cpr.jca.apc.org
Fax: +81(0)3-5379-5055

3

The Alternative Report on the Second Periodic Report of theJapanese Government by the CAT Network Japan
April 2013
CAT-Network Japan

Articles 1 and 4
Articles 1 and 4
1. Please provide information on steps taken to incorporate into domestic law the definition of
torture as contained in article 1 of the Convention, as recommended by the Committee in its
previous concluding observations (CAT/C/JPN/CO/1, para. 10). In particular, please provide
information on the definition of “mental torture” in the Penal Code and on the penalties for
related acts. Furthermore, please indicate if the Penal Code of the State party covers acts of all
types of public officials and individuals acting in an official capacity, including the situation ofindividuals acting at the instigation or with the consent or acquiescence of a public official orother person acting in an official capacity.

Comment:
1.

Japanese Government has not taken any step to incorporate into domestic law the definition of
torture as contained in article 1 of the Convention since previous CAT concluding observations.

2.

Although articles 194 to 196 of the Penal Code may be applicable to aggravated offence
categories including torture by Japanese special public officers, the government’s report doesn’tshow the specific statistical data concerning how many public officers have been prosecutedand sentenced by charging them with offences which result from acts of torture, and also towhat extent in public officers’ cases the gravity of the offences were taken into consideration atprosecution and in court. Thus, it will be difficult to assess whether implementation of the Penal
Code fully meets the requirements of the Convention in practice.

3.

Regarding mental torture, the government’s report says that“acts causing emotional distress to4

a detainee committed by a guard, etc. are considered as crimes of assault and cruelty by special
public officers”. But we don’t know such a case. The government should show such concrete
cases.

4.

Principal provisions on torture and ill-treatment cases such as Articles 194 to 196 of the Penal
Code are applicable only to certain special public officers, i.e. “a person performing or assistingin judicial, prosecutorial or police duties” or “a person who is guarding or escorting anotherperson detained or confined in accordance with laws”. It seems to be narrower than “a public
official or other person acting in an official capacity” under Article 1 of the Convention. For
example, whether or not all types of officials such as the Self- Defense Forces, immigration
detention centers and health-care settings can be included in the above terms is unclear. Also,“other person acting in an official capacity.” cannot be at least the principal under Articles 194
to 196.

5.

Whether or not “acquiescence of a public official” under Article 1 of the Convention is
included in the above crime categories is also undefined.

6.

If the suspects of the acts of torture are foreign public officers, they cannot be charged withaggravated offences such as articles 194 to 196 of the Penal Code, but can just be punished bycharging them with other ordinal types of offences, such as violence, injury, and others. Thus, it
doesn’t seem to meet the obligations of universal jurisdiction under the Convention.

7.

Thus, although the government’s report says that “the Penal Code of Japan covers all
individuals acting in an official capacity. Such individuals include public officials (regardless of
their types or categories) as well as individuals acting under instigation, consent or
acquiescence of public officials and other individuals acting in an official capacity.“, it isentirely doubtful.

8.

Specific incorporation of the Convention into the Penal Code is the best way to ensure fullcompliance with the Convention and its spirit. Furthermore, incorporation matters for the5interpretation and application of the law in concrete cases.

Recommendations to Japanese Government:
9.

Provide concrete statistics and cases to substantiate that torture and ill-treatment cases arecovered in practice under various existing provisions of crime , including principal provisions
on torture and ill-treatment cases such as Articles 194 to 196 of the Penal Code.

10. Incorporate the definition of torture in the Convention into the Penal Code in order to allow
persons to invoke the Convention directly in the courts, to give prominence to the Convention
and to raise awareness of the provisions of the Convention among members of the judiciary andthe administration.

Articles 5 and 7
Articles 5 and 7
10. Please indicate if the State party exercises universal jurisdiction for acts of torture.
Since the consideration of the previous report, please indicate whether the State party has
rejected, for any reason, any request for extradition by a third State for an individual
suspected of having committed an offence of torture, and thus engaging its own
prosecution as a result. If so, please provide information on the status and outcome ofsuch proceedings.

Comment:
11. “The obligation to prosecute provided for in Article 7, paragraph 1, is normally implemented in
the context of the Convention Against Torture after the State has performed the otherobligations provided for in the preceding articles, which require it to adopt adequate legislation
to enable it to criminalize torture, give its courts universal jurisdiction in the matter and makean inquiry into the facts.” ( The International Court of Justice (ICJ), BELGIUM v. SENEGAL,
20 JULY 2012, para.91). First of all, Japanese Law must adopt adequate legislation to enable
it to criminalize torture. As the government’s report says, Article 4-2 of the Penal Code provides
6

that the Penal Code shall apply to anyone who commits those crimes prescribed in the Penal
Code that are obliged under a treaty to be punished when committed outside Japan. But only
Article 4-2 is not sufficient to exercise universal jurisdiction in accordance with the Convention
because the Penal Code doesn’t provide“Torture crimes”to implement the Convention. Even
Principal provisions on torture and ill-treatment cases such as Articles 194 to 196 of the Penal
Code are not applicable to foreign public officers.

12. Japanese government seems to consider universal jurisdiction as “obligations erga omnes
partes” less serious. We can see this tendency from the treatment of the former president of the
Republic of Peru, Alberto Fujimori who stayed in Japan from 2000 to 2005. Fujimori wassuspected of gross human rights violations using his secret army during his presidency, and in2003 the Peru government requested the Japanese government to extradite him on grounds ofinternational legal standards including the Convention against Torture. Survivors and thefamilies of victims also urged his extradition.

13. However, the Japanese government rejected these requests because Fujimori was deemed aJapanese national and a domestic law prohibits extradition of its own citizens to foreigncountries. Additionally, the government didn’t move forward with the investigation process.
Indeed alleged violations including torture occurred before 29 July 1999, the date when theConvention entered into force for Japan. But this Fujimori case was an important issue to becontrary to the spirit and purpose of the Convention that the torturers cannot enjoy impunity.

Recommendations to Japanese Government:
14. Adopt adequate legislation to enable Japan to establish and exercise universal jurisdiction as“obligations erga omnes partes”. For the purposes Japan must incorporate into domestic law“Torture crimes”to be applicable to any foreign public official or other person acting in an
official capacity.

Article2
Article 27

6. Please indicate steps taken by the State party to establish an independent national
human rights institution, in accordance with the Paris Principles.

Comment:
15. The government submitted a bill concerning a creation of a human rights institution in 2012
which only failed and abandoned due to the change of the government after the general election.
The body proposed by the bill, however, fundamentally lacked the independence and key
functions required by the Paris Principle.

16. The body was supposed to be affiliated to the Ministry of Justice, the executive body governing
prisons and immigration centers, and who drafted the bill, and mainly designed to addresscomplaints, but had little function for responsibilities listed under the Article 3 of the Principle.
It did not have a sufficient power designed to review and advice about a human rights policy of
the government, and the bill did not have any reference to international human rights standards.
Even for the complaint handling, the body was designed to delegate its authority to local legal
affairs bureaus which are under the ministry.

17. A number of proposals were drafted by the civil society, including the JFBA and human rights
organizations. Among them, a group of academics proposed to set up such a body as a special
independent agency equivalent to the Board of Audit or the National Personnel Authority,
which is established outside the government control. Ministries and legislators are, however,stick to establish a quasi-judicial body within the current government executive framework,
contrary to the core direction of the Paris Principle.

Recommendations to Japanese Government:
18. The government should establish a truly independent body which can make sufficient advice tothe government policy by monitoring and reviewing the performance of the governmental
bodies, including the Ministry of Justice and Police Departments as required by the Paris
Principle.

819. The law to establish the body should have a key reference to international human rights
standards to make sure that the body can operate according to such norms independently fromthe government.

Article3
Article 3
7. With reference to the Committee’s previous concluding observations and the request
for clarification sent by the Rapporteur for Follow-up to Conclusions andRecommendations, please provide updated information on steps taken by the State party
to incorporate the principle of non-refoulement which constitutes the fundament ofarticle 3 of the Convention into domestic legislation so as to ensure that asylum-seekers
are not returned to countries where there are substantial grounds for believing that theindividual to be returned would be in danger of being subjected to torture(CAT/C/JPN/CO/1, para. 14).

Comment:
20. In 2009, Japan has amended Paragraph 3 of the Article 53 of the Immigration Control andRefugee Recognition Act to include the prohibition of the refoulement to certain countries
prescribed by the Convention. This was widely announced that Japan has improved its legalityof the deportation. The civil society, however, observes that the principle of non-refoulement
is not yet met from following reasons.

Lack of protective measures at the airport.
21. Arriving in an airport, a foreigner gets an examination of landing. If the arrival expressed that
she/he is under threat of torture or ill-treatment in her/his country or expressed her/his desire
to seek asylum, the asylum seeker will get examination of landing for temporary refuge. Bothexaminations are different from refugee recognition procedure, and if the landing is not
permitted after the hearing, she/he will be sent back to the original country within the
responsibility of the airline company. If the applicant protested against the decision to be sent

9

back, she/he will be subjected to deportation order. Therefore, it is not possible for them toapply for refugee status before getting the deportation order.

22. Examination for temporary refuge should be concluded within 7 days, therefore the applicant
gets intensive hearings. During the hearing, however, the attendance of a legal counsel is not
permitted and applicants cannot get assistance from lawyers or her/his supporters because noaccess to the outside is allowed. If the examination of the landing for temporary refuge isrejected, this will automatically be taken as a denial of a ground for refugee application, andshe/he will be deported by the airline company accordingly. Although the ordinance No.626
issued by Ministry of Justice on 14 Sept. 2006 states that the immigration office “may” accept
the application for landing for temporary refuge and the refugee application at the same time,
the practice does not follow such procedure.

23. Applicants are not informed that either examinations of landing are not the application forrefugee status. Refugee application for a person who was denied for landing is only possible
when the person resisted against the deportation (the civil society has learned number of cases
the applicants physically confront the immigration officers) and she/he was detained in a
facility to get the application form.

Lack of a safeguard not to execute deportation to a country/region where she/he may
face a torture or ill-treatment

24. The amended act refers to "a country that has a substantive ground to believe that there is afear of torture" but this vague concept does not have any definitive guideline. In Japan, theburden of proof on this lies on the applicant, and even the refugee inquirer does not makeinquiry nor a risk assessment on the situation of original country, which means there is a large
risk to be defined having no fear in the country, even she/he was a torture victim or still
having a substantive fear to be subjected to torture. The Article 53 is not effective at all in thisrespect.

10

Recommendations to Japanese Government:
25. Provide sufficient information regarding Refugee Recognition procedure and the procedure forlanding for temporary refuge while examined for landing.

26. For those expressed their demand for refuge, stipulate specifically in respective ordinances toprovide refugee application form at the time when examination of landing for temporary
refuge is carried out.

27. Create a guideline to ensure that the country of destination for the deportation is not fallingunder the category defined by respective conventions, and set up an binding administrative
procedure not to deport to such countries.

9. (a) Please provide detailed information on steps taken to ensure due process in asylum
applications and deportations proceedings, including access to counsel, legal aid and aninterpreter.

Comments:
28. Followings are points raised as concerns over protection for torture victims and asylum
seekers.

Lack of protection for torture victims.
29. Immigration Control and Refugee Recognition Act does not have a clause to protect torture
victims. Victims may seek asylum, but if they failed to be defined as refugees, even a torture
victim may be expelled from the immigration procedure.

30. In a case of a woman who applied for refuge because of her experience of being subjected totorture, the refugee recognition procedure denied her refugee status even after she presented
the medical report which has been filed by a doctor just after the torture, and even a special
permission for stay, which the Minister of Justice has the discretional power, was not granted.

11

She filed a complaint against the decision but she is waiting for her interview for already three
years without getting a legal ground for her stay.

31. Legal counsel or any other supporter is not permitted to attend the first instance hearing for the
refugee recognition procedure.

Lack of understanding about mental aspects of torture victims.
32. A person who is suffering from a mental disorder caused by torture or ill-treatment, such as
PTSD, is not assumed to be handled by the immigration procedure, which is completely
lacking the understanding of such nature. If a contradiction was found during the inquiry, sucha behavior would be regarded as a testimony against the applicant.

Translation and interpretation
33. Although the application itself may be written in applicant's original language, all otherdocuments are required to be translated into Japanese. Therefore, a person who only has
insufficient funds to be used for translation cannot submit efficient proof.

34. The immigration office appoints interpreter for interviews but following points are argued.
The quality of interpretation varies person by person, and no systematic quality check is made.
There is no recording of each interpretation which makes the check impossible afterwards.
Interpreters appear to be not neutral. No guideline for the appointment of a interpreter.
Applicants are required to sign on the statement, but in some cases, they are forced to sign oneven they thought the interpretation was insufficient.

The notification of the objection is insufficient.
35. The notification is written both in Japanese and in English, but in case of objection, theattached explanatory document of the reason of the objection is only written in Japanese. The
content of the document usually informed to the applicant through the interpreter, but there is
no way checking whether the applicant fully and correctly understood the meaning. The
reason provided by the document is too simple and stereotypical so it may not fit the situation12

of the applicant. Most of the reason are expressed as "non-credibility" and it is hard to knowwhether the specific situation in the original country was properly assessed.

Recommendations to Japanese Government:
36. Proper safeguard and guidelines to protect victims of torture in the procedure should be clearlystated in the law or in the ordinance.

37. Specific reference should be made to cases which the mental disorder is suspected.

38. Proof and evidences written in languages other than Japanese should be accepted and assessed.

39. Systematic standard for interpreters and regular check on their quality should be provided. Allinterviews should be recorded to ensure later checking.

40. In case of objection, the comprehensive and sufficient explanation should be provided bydocument with references to adequate sources. This information should be fully andadequately informed to the applicant in her/his own language.

(b) Please describe measures taken to establish an entirely independent appeal
mechanism to review decisions by immigration officials. In this respect, please indicate if
refugee examination counselors are independently appointed and have the power to issuebinding decisions.

Comments:
41. The quality and competence of refugee examination counselors are under questions. The
average recognition rate of 1997-2004 when the counselors system was not existing was 1.6%
(16 among 1,019), while the rate of 2005-2011 was 4.1% (83 among 2,045). You may see thetotal number of appeal itself has largely increased these years so the increase of the percentage
should not be overestimated. Furthermore, the rate was firstly higher when introduced but later13

than 2007 it has dropped to 2-5%, which indicates not so much difference can be expectedfrom the introduction of the system (see the Table below).

Table: Refugee recognition rate after appeal

42. Two visit committees for immigration centers for east and west were established, but theappointment of members is under the discretion of the Ministry of Justice, and so far, not somany changes has been observed yet.

Recommendations to Japanese Government:
43. The clear tribunal system should be introduced as soon as possible for appeal cases and therefugee recognition counselors should be appointed widely and independently from thecompetent members of the civil society to ensure the due process of the procedure.

44. The visit committee should meet the requirement set by the Optional Protocol.

(c) Please provide information on steps taken to guarantee access to judicial review for
all asylum-seekers. In this respect, please indicate steps taken to address the reports of14

rejected asylum-seekers being deported immediately before they could submit an appeal
against the negative asylum decision.

Comments:
45. In 2009, Japan has amended Paragraph 3 of the Article 53 of the Immigration Control andRefugee Recognition Act to include the prohibition of the refoulement to certain countries
prescribed by the Convention. This was widely announced that Japan has improved its legalityof the deportation. In 2010, however, the civil society was warned that any deportation itself
may amount a torture or ill-treatment in Japan, as officers are regularly using excessive force
while executing deportation.

46. The guideline provided by the immigration authority for use of force and restraint instruments
in deportation is just only an internal guidance and not defined under the law. Officers often
ignore such guidelines and in number of cases, lawyers and members of the civil society
observe excessive use of instruments of restraint. These include, chain gangs using handcuffs tolegs, using towels which are not defined as a tool for restraint under the guideline, and bondage
bands also not defined under the guideline.

47. In a trial concerning a deportation case of a migrant from Ghana, the immigration authority
officially stated in oral that because the guideline is an internal regulation, using a different
method to restrain a person is permitted by law and it is not illegal even using the method which
is prohibited under the guideline. This clearly shows that in Japan there is a serious lack ofbinding safeguard to prohibit and prevent torture or ill-treatment while executing deportation.

Recommendations to Japanese Government:
48. The Government should provide official and binding standard as a law to prevent torture during
the execution of deportation. It must also conduct a human rights training to officers handlingthe deportation to ensure their compliance to the international standard.

15

(d) Please indicate if the State party has made public the information concerning therequirement for detention after the issuance of a written deportation order.

Comments:
49. The Immigration Control Act stipulates that a person under the deportation order should be
detained till the time of deportation. For instance, a person having no nationality has no original
country to be deported, and therefore, such a person should be detained without a definite term.
The government reply says "the purpose of this detention is to secure custody prior todeportation and prohibit any activity during his/her stay", but this does not have any legal
ground, and there is no check whether there is truly a "need of custody".

50. A research conducted by a medical doctor during 2007-2011 indicates that an average length ofdetention was 13 months (varies from 2 months to 47 months) and this is not different from thelength observed before 2007. As of Feb.2013 the longest is a Somalian who stays there for 48
months.

51. The authority may grant temporary release on request from the detainee, but a standard for thisdiscretion is not disclosed. There are some possible considerable aspects shown on the websiteof the Immigration Bureau, but in cases of objections, the reason is not specified and even in acase having families, therefore having no reason to escape, the detention continues. For instance,in East Japan Immigration Center, it usually takes 50 to 60 days for examination for the request,
and it is extremely rare to get permission of temporary release with the first request.

Recommendations to Japanese Government:
52. Adopt a policy of diversion by applying alternative measures to detention, and review the needof detention regularly and systematically. The detention should be the last resort. In cases oflong detention, it should be defined as deportation is not possible, and therefore such detainee
should be released accordingly.

53. The decision of temporary release should be concluded within 14 days, and in cases of16

objection, the specific reason for the decision should be clearly disclosed.

Article16
Article 1621.
(a) In light of the Committee’s previous concluding observations, please provide
information on steps taken to improve the conditions of detention in landing
prevention facilities and immigration detention centres, inter alia, by addressing theallegations of violence and the lack of access to proper health care (CAT/C/JPN/CO/1,
para. 14). Information should also be provided on steps taken to ensure that minors
are kept separate from adult detainees in these facilities.
(b) Please describe steps taken to address the concern about the length of detention forrejected and case-pending asylum-seekers. Statistical information should also be
provided on the length of detention for asylum applicants in 2008 and 2009,
disaggregated by age, gender, nationality, and location of detention. Furthermore,
please provide information on the number of applicants in 2007, 2008 and 2009 who
benefited from the special considerations of age, health conditions, and otherhumanitarian reasons and have been provisionally released despite pending
deportation orders.

Comments:

54. In cases of detaining a whole family or a minor, if the minor is under the age of 18, in practice,and not by law or ordinance, she/he will be sent to foster home through a Child Consultation
Office. However, if the age of the child is uncertain the child may sent to the adult facility andkept in the same room with adults. There was a case of 17 years old boy, who has noaccompanying parents, detained in a same room with an adult for about 10 months, and his
mental condition got extremely worse.

Recommendations to Japanese Government:17

55. Stipulate by law or ordinance not to detain minors.
56. Provide an official procedure to define the age of minors, and in unsure case, the person should
be taken as a minor.

27.
In light of the Committee’s previous concluding observations, please provide information
on steps taken to ensure effective and thorough judicial control over detention
procedures in public and private mental health institutions (CAT/C/JPN/CO/1, para.
26).

Comments:
57. There are two main laws in the current Japanese mental health system; The Mental Health andWelfare Law, and The Medical Observation Law on Mentally Incompetent Person.

58. The involuntary hospitalization procedure provided in the Mental Health and Welfare Law wasseen as a most problematic aspect of the Japanese system for a long time.

59. The current Mental Health and Welfare Law has two types of involuntary hospitalization.
a)Article 29 is ordered by the Prefectural Governor:
Two designated psychiatrists examine the patient and based on their report the Governor’sOrder comes out.
b) Article 33 is implemented in a manner following the procedure below; One designatedpsychiatrist examines the patient and he requests family (mainly parent) to consent patient’s
hospitalization.

60. So, there is no chance for detained patient at the time of admission to be heard by outside
agencies. Thus, for the detained patient, there is no appeal system against her/his original
detention but the detained patient has a right to apply to a Psychiatric Review Board asking
reconsideration of their detention and to discharge her/him immediately.
18

61. In case of a), the detained patient may have a possibility to file a complaint based on
Administrative Appeal Law to overturn the decision of hospitalization. The procedure is,however, not realistic as the law itself is not well known and it is quite impossible to go throughwith this procedure without the assistance of lawyer, whom the patients are hard to accessbecause of the hospitalization. The “habias corpus” may be another possible solution but theprocedure is extremely limited to use against the procedural flaw. So far, there was only one
case which the procedure applied to a hospitalization case; i.e. Utsunomiya Hospital Case in1984.

62. In case of b), no remedy process exists for patients who are demanding to be discharged fromthe hospitalization. So either detained patients use the Psychiatric Review Board system, toseek a discharge, which has not worked so well for a long time. It is hard to get through withthis process and in 2009, only 2.2% of detained patients applied for this procedure.

63. The Board is consisted of 5 members and 3 of them are psychiatrists. Only one member isdefined as a legal professional and the chairperson is a psychiatrist. Applicants has no
assistance from lawyers and legal aid programme is not provided. Furthermore, the Board isalso responsible for renewing the detention periodically. Japan still keep 330,000 psychiatricbeds, about 37% of them occupied by detained patients, so this renewal work is a heavy
workload for the Board, who has a meeting only once a month.

Recommendations to Japanese Government:
64. Set up the Tribunal system based upon the third party examination system, which enables tointervene the procedure from the first point. This may lead the government to accede the
Optional Protocol as soon as possible.

65. To ensure the third party agency to function well, the excessive number of psychiatric beds may
become a real burden. The government should review the standard for psychiatric medical
policy to define the adequate number of psychiatric beds.
19

Prison Condition in Japanese PrisonLife imprisonment and the system of Parole

66. The Number of Prisoners serving the Life Imprisonment is growing, and periods of such lifers
actually serving in prisons are becoming longer.

67. The number of new prisoners sentenced to life conclusively in 2011 was 43, while the numberof prisoners released on parole in the same year was only six. The number of life sentences isincreasing, and moreover, the average period of imprisonment of lifers is becoming longer. The
number of lifers released on parole, however, has been markedly decreasing these years.

68. Since April 2009, prisoners serving more than 30 years in prison are due to be examined forparole automatically.

69. A decade from 2002 to 2011, lifers who are released on parole were 56 in total (excluding
prisoners granted more than twice because of revoking former parole). In 2002, the average
period in prison was 23 years and 5 months, but in 2011 it became 35 years and 2 months.
Those lifers died in prison in this decade were 147, far more than those who were released onparole. (See “Statistical Data” below).

70. As for the treatment, at the end of December 2011, there were eight lifers who have been
imprisoned for more than 50 years (See “Statistical Data” below). Long imprisonment will
deteriorate prisoners’ health physically and mentally, and therefore it may consist of inhumanunder the Convention.

71. What is worse is that the Public Prosecutor’s Office issued an administrative ordinance in 1998
which actually limit the opportunity for parole to prisoners sentenced to life (in cases of very
serious offences or widely reported cases). This ordinance has virtually created a new type of20

punishment, a life imprisonment without a possibility of parole, without introducing a new law.

72. There is no clear and substantive criteria for parole disclosed to prisoners and the parole
granting procedure is carried out only by officers. After long years, prisoners often lackexpectation to return to their own community, and non-governmental organizations regularly
receive letters from prisons expressing their distress.

73. If there is truly no possibility, no programs, no proper procedure to follow and no fair criterion
for lifers to get parole, we must say life sentence is arbitrary and inhuman, and therefore aviolation of international human rights standard.

Statistical Data
(1)Number of prisoners sentenced to life imprisonment
Year

1994

1995

1996

1997

1998

1999

2000

2001

2002

Number

894

909

923

938

968

1,002

1,047

1,097

1,152

Year

2003

2004

2005

2006

2007

2008

2009

2010

2011

Number

1,242

1,352

1,467

1,596

1,670

1,711

1,772

1,796

1,812

Source: Annual Report on Corrections(2)

The situation of life sentenced prisoners（2002～2011）
The number of

The Number of prisoners

The number of life

new prisoners

who had been sentenced tosentenced prisoner in Jailwho had been

life imprisonment andsentenced to life

released on parole

The number of lifeYearsentenced prisoners
died in jail

2002

1,152

75

5

18

2003

1,242

114

13

11

2004

1,352

119

8

15

21

2005

1,467

134

3

12

2006

1,596

136

4

15

2007

1,670

89

0

13

2008

1,711

53

4

7

2009

1,772

81

6

14

2010

1,796

50

7

21

2011

1,812

43

6

21

Total

-

894

56

147

Source: White Paper on Crime in Japan by the Ministry of Justice and The Ministry of Justice Situation of besentenced to life and life sentenced prisoners are released on parole(3) life sentence prisoner - period of imprisonment （The end o f 2011）
The period of imprisonment

The number of（year）

prisoner

Proportion

The average age（year）

Less than10 years

948

52.3%

48.8

From 10 years to 20 years

402

22.2%

56.1

From 20years to 30 years

347

19.2%

62.7

From 30 years to 40 years

87

4.8%

64.8

From 40 years to 50 years

20

1.1%

69.6

More than 50 years

8

0.4%

78.1

1,812

100.0%

54.2

Total

Source: The Ministry of JusticeSituation of be sentenced to life and life sentenced prisoners are

released on parole(4) Number of prisoners who had been sentenced to life imprisonment and released on parole by
the period of imprisonment
Year (the period

Within 12

Within 14

Within 16

Within 18

Within 20

Beyond 20

years

years

years

years

years

years

Total
of imprisonment22

by the release)
Average number
51.0

0.8

7.6

24.2

11.0

4.2

3.2

46.4

1.2

9.6

18.4

10.8

3.8

2.6

1986

28

－

3

15

6

2

2

1987

25

2

2

12

7

2

－

1988

11

－

1

5

2

1

2

1989

13

－

－

5

1

3

4

1990

17

－

－

5

3

4

5

1991

33

－

1

12

8

6

6

1992

21

－

－

6

1

6

8

1993

16

1

－

4

5

4

2

1994

15

－

－

－

8

3

4

1995

15

－

－

1

5

4

5

1996

9

－

1

－

－

5

3

1997

13

－

1

－

－

4

8

1998

14

－

－

－

－

5

9

1999

9

－

－

－

－

3

6

2000

6

－

－

－

－

－

6

2001

14

－

1

－

1

－

13

2002

5

1

－

－

1

－

3

2003

13

－

－

－

－

－

13

2004

8

－

－

－

－

－

8

2005

3

－

－

－

－

－

3

2006

4

－

－

－

－

－

4

2007

0

－

－

－

－

－

－

2008

4

－

－

－

－

－

4

2009

6

－

－

－

－

－

6

during 1976-80
Average number
during 1981-85

23

2010

7

－

－

－

－

－

7

2011

6

－

－

－

－

－

6

Source: White Paper on Crime in Japan by the Ministry of Justice

Recommendations to the Japanese Government;
74. Specific and objective criterion and procedure should be established to set up an adequate
parole program.

75. An opportunity to been assessed for examination for parole should be given regularly andsystematically to all prisoners serving more than 10 years in prison.

76. The examination hearing for parole should be observed by prisoner and her/his lawyer, andonce the parole was rejected, the prisoner should be eligible to make complaint against thedecision.

77. Arrangement and adjustment on environments of parolee’s life, such as accommodation after
the release, should be enhanced, in order to ensure those most difficult prisoners get proper
opportunity for parole.

24Solitary confinement

Issue
78. In the past, solitary confinement was used without clear criteria. The new law clarified thecriteria for “isolation.” As a result, the number of sentenced inmates who are given thetreatment of complete isolation from other inmates for 24 hours a day has decreased
dramatically. The number of prisoners who are given the treatment of “isolation” decreased
from 148 people in October 2006 to 16 people in April 2012.

79. However, many prisoners who do not meet the criteria for “isolation” are placed in solitaryconfinement, which is virtually the same as isolation, by being designated as a particular typein the new classification system of inmates called “security categories.” The only differences
between this treatment and isolation are merely that there is a possibility for bathing andexercising with other inmates and that the inmates can, in accordance with a directive, come incontact with others twice a month (which used to be once a month before the review of the
New Law in 2011). As of 10 April 2012, 2,190 prisoners are designated as type 4 in the
security categories, accounting for 4.01% of the total.

80. Even though the number of prisoners designated as type 4 decreased, there still remains
tendency to use the type 4 in the security categories to keep prisoners isolated. There areseveral prisons which actively use the type 4 in the security categories. (About this detail, see
Table1.)

Points relating to the Convention
81. No legally-established criteria for solitary confinement of type 4 in the security
categories.
The most of solitary confinement has no legally-established criteria. Although the new law has
clear criterion for isolation, the criterion cannot be applied on the type 4 in the security
categories.
25

82. Solitary confinement is often used as retaliation.
The civil society has received reports on many cases which the prisoners were detained insolitary confinement when they brought a lawsuit against the prison authorities.
83. No legally-binding complaint procedure.
In 2008, the Human Rights Committee recommended that "The state party should discontinue(omission) the practice of segregating certain inmates in "accommodating blocks" without
clearly defined criteria or possibilities of appeal." Japanese government answered that"treatment in a single room throughout day and night is covered by a complaints mechanism."

84. “Application for Examination”, one type of grievance mechanism can be applied to “isolation”.
However, it cannot be applied to the type 4 in security categories. Although “Filing ofComplaints”, another type of grievance mechanism can be applied to the type 4 in security
categories, “Filing of Complaints” is absolutely ineffective in practice.

(Table 1). The list of prisons in which the number of prisoners who are designated as Type 4 inthe security categories is more than twice the national average
Number ofprisoners
Total number ofName of Prison

Percentage of total
designated as Typeprisoners

number4 in the security
category

Kitakyusyu Medical Prison

263

64

25.50%

Gifu Prison

846

139

16.75%

Asahikawa Prison

298

44

16.18%

Tokushima Prison

741

74

10.32%

Saijo Branch Prison

39

4

10.26%

Miyagi Prison

993

92

10.20%

Okazaki Medical Prison

214

21

10.10%

Hachioji Medical Prison

229

21

9.33%

26

Kakogawa Prison

983

86

9.06%

Kumamoto Prison

607

52

9.03%

2,667

218

8.61%

Himeji Juvenile Prison

300

25

8.42%

Akita Prison

497

38

8.05%

Fuchu Prison

85. Especially we are concerned that there are about 20 prisoners each year, who have beendetained in solitary confinement for more than 10 years as a sum total. Several prisoners havebeen detained for over 30 years and the longest one has been for 49 years.

(Table 2). The number of prisoners who are detained in solitary confinement for more than 10
years and their period(The data resulted from 6 times research by one of the Diet members from 2000 to 2012)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

Research on
November
10th, 2000
37Y 00M*
36Y 07M
35Y 06M
34Y 11M
34Y 09M
27Y 10M
22Y 06M
22Y 02M
21Y 05M
20Y 11M
20Y 05M
20Y 04M
19Y 04M
19Y 03M
19Y 01M
18Y 11M
18Y 10M
17Y 00M
16Y 07M
15Y 02M
14Y 05M
14Y 02M
13Y 11M

Researchthon
July 10 ,2001
37Y 08M
37Y 03M
35Y 07M
35Y 05M
27Y 10M
22Y 10M
22Y 04M
21Y 07M
21Y 01M
21Y 00M
19Y 10M
19Y 09M
19Y 09M
19Y 07M
19Y 06M
17Y 07M
17Y 03M
15Y 10M
14Y 10M
14Y 07M
12Y 10M
12Y 07M
11Y 09M

Research on
October 1st,
2002
38Y 11M
38Y 05M
36Y 07M
29Y 01M
24Y 00M
23Y 07M
22Y 10M
22Y 04M
22Y 02M
21Y 01M
21Y 00M
21Y 00M
20Y 10M
20Y 09M
18Y 10M
18Y 06M
16Y 01M
15Y 09M
13Y 10M
13Y 10M
12Y 12M
12Y 02M
12Y 01M
27

Research on
November 1st,2005
42Y 00M
41Y 06M
39Y 08M
38Y 07M
27Y 01M
26Y 08M
26Y 00M
25Y 05M
25Y 00M
24Y 10M
23Y 11M
23Y 11M
23Y 06M
21Y 07M
20Y 03M
19 Y 08M
18 Y 05M
17 Y 01M
16 Y 01M
15 Y 09M
15 Y 03M
15 Y 02M
14 Y 01M

Research on
April 10th,2008
52Y 03M
43Y 00M
39Y 01M
35Y 10M
26Y 06M
26Y 05M
25Y 06M
23Y 11M
23Y 05M
20Y 05M
20Y 01M
16Y 05M
16Y 02M
16Y 00M
15Y 11M
15Y 09M
13Y 01M
12Y 08M
12Y 06M
11Y 11M
11Y 09M
11Y 03M

Research on
April 10th,2012
49Y 08M
47Y 00M
30Y 06M
30Y 04M
27Y 10M
27Y 04M
23Y 10M
22Y 05M
21Y 11M
20Y 05M
20Y 01M
19Y 11M
16Y 07M
15Y 09M
15Y 02M
13Y 03M
12Y 07M
11Y 07M
11Y 02M
10Y 05M
10Y 03M

24
25
26
27
28
29
30
Total
numberofpersons

12Y 02M
11Y 11M
11Y 01M
10Y 04M
10Y 02M

11Y 00M
10Y 10M
10Y 05M

11Y 06M
11Y 00M
10Y 06M
10Y 04M
10Y 04M
10Y 03M
10Y 00M

13 Y 07M
13 Y 05M
13 Y 04M
13 Y 04M
13 Y 01M
10 Y 06M
10 Y 00M

28

26

30

30

22

21

“Y” refers to year and “M” refers to month.

Recommendation to Japanese Government:
86. Inhumanely strict discipline and order, including prevalent use of solitary confinement, should
be lifted.

28

Disciplinary measures / Punishments (in prison)

Issue
87.

Para.17 of the concluding observations recommended not to use leather handcuff as a meanof punishment, but the most concerning issue now on this is that the procedure forpunishments are not fair and meeting the due process. Reports received by the Center for
Prisoners’ Rights Japan indicates that a lot of inmates are not satisfied with the procedure.
Complaint procedure, even it exists, is not functioning as it is very hard to file a complaint
when getting a punishment.

88.

The Law has a lack of clarity about the conducts constituting a “disciplinary offence”
because what kind of conducts should be subject to disciplinary measures and whether aprisoner should be imposed or not are mostly supposed to depend on each warden/prison
governor’s discretion.

(cf. Rule 29 of the Standard Minimum Rules for the Treatment of

Prisoners)

89.

Furthermore, concerning the procedure for imposing disciplinary measures, it does not
fully guaranteed due process.

The prisoners cannot examine the details of their own cases

and are not guaranteed the right to call witnesses or appoint a counsel (or other independent
representative) for their defense. The Panel to examine the cases and make a judgment also
consists of prison officers.

An assistant person from the prison officers is supposed to assist

or represent the prisoner. According to a result of investigation by one of the Diet members
in 2002, there was no record which shows that this “assistant officer” insisted to not impose
the punishment for the prisoner. Eventually, prison officers are supposed to play roles ofprosecutor, judge, and defense attorney.

90.

In addition, this process has a lack of transparency.

Under the old Prison Law, mostjudicial decisions said that the procedure for disciplinary measures is different from that for
criminal punishment as the case infra, but some decisions also said that it should guarantee
29due process as much as possible. Moreover, the Human Rights Committee raised concernsthat “lack of fair and open procedures for deciding on disciplinary measures” in theConcluding Observation of 1998 (para.27(c) of the Observation).

91. The most serious disciplinary measure is almost the same as solitary confinement.

The

prisoner shall be limited in taking a bath and exercise. Additionally, the prisoners might behave more restrictions imposed on them depending on the governor’s discretion such as workand contact with outside. The Human Rights Committee raised concerns that “use of harshpunitive measures, including frequent resort to solitary confinement” in the Concluding
Observation of 1998, but after that, disciplinary measure by solitary confinement has beenmostly used. This harsh type of measure should be avoided as much as possible.

92.

Practically, those who are likely to get punishment repeatedly are said to be long term
inmates, foreign inmates, inmates with mental disability. These category of inmates are having
difficulties in making communication, therefore it is concerned that whether efforts were
invested to obtain their understanding.

Recommendations to Japanese Government:
93. Criterion for application of punishment should be specific and clear.
94. Transparency of the application of the punishment should be ensured.
95. Ensure to raise effectiveness of the complaint. Establish a system of consultation inorder to make it possible for those inmates getting punishment to seek assistancefrom lawyers and supporting organizations.

30

Health, Sanitation and Medical Treatment in Prison

Issue
96. The areas of health, sanitation and medical treatment are some of the domains whose problems
remain unsolved even with the Act on Penal Detention Facilities and Treatment of Inmates andDetainees (hereinafter called “the New Law”). The root cause of the problem lies in the factthat medical services rely on the security system in place in the penal institutions. Security
requirements are prioritized over anything else, making it extremely difficult to provide
adequate medical services.

97. The lack of medical staff, of doctors in particular, is serious. As of April 2012, in Japan, thequota of doctors in full time employment in penal institutions is 226, however only 187 doctors
are assigned. There are twelve institutions who has no full time doctor, and sixteen institutions
that are falling below the quota. (Yomiuri Shimbun 27 Dec. 2012)

98. As a result of the lack of doctors, assistant nurses are charged with the responsibility to judge
the necessity and urgency of medical examination by a doctor. Since assistant nurses arethemselves prison guards who acquired their qualification at the prison's medical facility, they
have a natural tendency to prioritize security requirements.

99. Medical examination by a doctor is frequently deemed unnecessary, causing delay in medical
attention, and resulting in symptoms that cannot be treated at the penal institution.

100. There are cases when even though medical facilities and treatment available at the institution
are inadequate, the decision to transfer the inmate to an outside hospital is not made, leading toworsening symptoms, or even death. In February 2012, a male prisoner in his seventies
detained at Toyama Prison died of disease because of the unreasonable delay in receiving
medical treatment.

31

101. In February 2008, a group of 22 inmates including relatives of a deceased inmate andex-prisoners in Tokushima Prison filed a criminal complaint against the medical chief doctor,
the former prison governor, and a guard in its medical section, saying that they had suffered
abuse by a prison doctor while practicing from May 2004 to November 2007.

102. Some inmates said that the doctor injured them by placing his finger into their anus when there
was no apparent need for a rectal examination and without their consent. In one case, an inmate
who suffered dizziness was pinched on his inner thighs, had his ankle stepped on and was givena rectal check, causing an infection that required surgery at a private hospital. Moreover,another inmate who was wasting away because of high fever requested intravenous feeding but
was refused by the prison governor at that time and after that. This inmate later killed byhimself.

Points for discussion
103. “The State party should ensure that adequate, Independent and prompt medical assistance be
provided to all inmates at all times. The State party should consider placing medical facilities
and staff under the jurisdiction of the Ministry of Health.” (concluding observations 2008)

104. In July 2011, Japanese government answered to a question of committee against torture whichis concerned with the second Japanese government report.

105. “The transfer of the medical department of penal institutions to the Ministry of Health, Labourand Welfare has not been implemented due to a number of problems, including the problem of
securing doctors, the necessity of maintaining a framework that ensures the provision of
medical treatment within institutions from the perspective of securing the custody of inmatesand protecting privacy and the necessity of maintaining a framework that ensures the prompt
handling of emergency cases by securing doctors who can attend to penal institutions in timesof emergency. However, efforts have been made to secure medical staff, including doctors, andto improve medical facilities so as to ensure that adequate medical treatment is provided toinmates. Moreover, measures have been taken to have inmates attended to or admitted at an
32

outside medical institution if necessary.”

106. However, fundamental institutional reformation to increase the number of full-time doctors
has not achieved. The number of full-time doctors has actually been decreasing.

Recommendations to Japanese Government:
107. Inmates should receive adequate medical treatment and live in a healthy and sanitaryenvironment.

108. The State party should consider placing medical facilities and staff under the jurisdiction of
the Ministry of Health.

33

The Grievance Mechanism

Issues and points relating to the Convention

109.

In the first concluding observation, following 3 points were advised about the Grievance
Mechanism110.

The State party
should consider establishing an independent mechanism, with authority to promptly,
impartially and effectively investigate all reported allegations of and complaints about acts of
torture and ill-treatment from both individuals in pre-trial detention at police facilities or penal
institutions and inmates in penal institutions.

should take all necessary measures to ensure that the right of inmates to complain can be fully
exercised, including the lifting of any statute of limitations for acts of torture andill–treatment; ensuring that inmates may avail themselves of legal representation to filecomplaints; establishing protection mechanisms against intimidation of witnesses; andreviewing all rulings limiting the right to claim compensation.

should provide detailed statistical data, disaggregated by crime, ethnicity, age and sex, on
complaints relating to torture and ill-treatment allegedly committed by law enforcement
officials and on the related investigations, prosecutions, and penal or disciplinary sanctions.

111.

However the government report 17-18,23(b) is not mentioned on measures taken
subsequently to enhance effectiveness of the Grievance Mechanism.

112. Regarding observation 1), if the Minister of Justice determines that such a filing is groundlessand therefore should be dismissed, before the final decision is made, the Minister is to ask foradvice to the Review and Investigation Panel on Complaints by Inmates in Penal Institutions
34

(the Study Group on Review of Appeals Filed by Inmates of Penal Facilities), which
comprises of 5 outside members.

113.

However, this final step is not stipulated in law. Moreover, the Panel does not have its own
secretariat and therefore is unable to conduct its own investigation. Since the investigation is
primarily based on what is provided in writing, it is extremely difficult for the Panel to reverse
a decision made by the regional correction headquarters.

114.

Even when the Panel determines that grievances are reasonable, its opinion is anyway notlegally binding, which means that the Ministry of Justice may decide to dismiss the grievanceas originally proposed.

115.

Of the 217 cases examined in 2010, 2 cases were found by the Panel not to be dismissed(in other words, the request made by the inmate is found to be reasonable); 0 case out of 224
in 2011.

116.

Regarding observation 2)., the Grievance Mechanism still basically should be do inmate
itself ( they can ask the help to staff but not to ask people and lawyer on the outside ) then they
got only outcome or even nothing. The Center for Prisoners’ Rights Japan got many lettersfrom inmates such as “I did the Grievance Mechanism but nothing. Is there any way torelieve?”, “The Grievance Mechanism is not effective against human rights violation”.

117.

Regarding observation 3), published statistics include no detailed date as the concluding
observation requested.

118.

In addition, the government report 36 says they consider to establish inspection committees
at reformatory too. But the law for setting up have not passed diet yet.

119.

Basically there is not big change from NGO report at first summarize. Once again wewould point out issue of the Grievance Mechanism as follow.
35

120.

Under the present law we have 3 type grievance mechanism stipulated by prison law.
Application for Examination and Stating of Facts which is in the case grievance was accepted
then to relief impose an obligation on the institution . These has a limit to what can begrievance. Filing of Complaints dose not have a limit to grievance but we could ask only to
improve and not obligation.

121.

The former two systems require that the Application (or Stating of Facts) be made within
30 days and for any of the systems, application made by a representative is not permitted.

122.

Application for Examination can only be made for a limited range of measures. For
instance, what can often be a serious problem, such as rejection of visits and rejection ofdelivery and purchase of articles, is not subject to such application.

123.

The Application for Examination and Stating of Facts are to be made to the superintendentof the regional correction headquarters. When the headquarters determine that there are no
illegal or unfair facts after conducting their investigation, then a request can be filed to the
Minister of Justice within 30 days.

Recommendations to Japanese Government:
124. Emphasize again the same point made in the last concluding observations.

36