Just one day inside prison probably seems a long time for an innocent man. Imagine then what it feels to be on death row for 53 years for a crime you haven’t committed.
Iwao Hakamada, a Japanese ex-boxer, might know. Earlier this month the high court in Tokyo ordered a retrial for the 87-year-old, who has languished behind bars for more than five decades after a conviction his lawyers say was based on a forced confession and fabricated evidence.
The case has again shone a spotlight on a darker side of Japan.
Scratch lightly at the veneer of exquisite aesthetics, etiquette, and sleek modernism and you become aware of something more sinister – hinted at by the excessive deference and rigid hierarchies. Nowhere is it more apparent than in the country’s criminal justice system.
Japan’s strange acquiescence in the face of its brazen and brightly tattooed mafia gangs is well known. So are the 90 per cent conviction rates of criminal suspects who go to trial. While many cases are dropped before they reach a courtroom, the problem of suspected forced confessions of people (like Iwao Hakamada) whose lawyers are not present during interrogation, suggests a litany of injustices could be happening.
Hakamada was convicted of murder in 1966 of a company manager and three family members. He was sentenced to death two years later. He initially denied the accusations then confessed, forced out of him, he says, by a violent police interrogation.
The Tokyo High Court finally acknowledged last week that key evidence consisting of supposed blood-stained clothing, found more than a year after his arrest, may have been fabricated by investigators. “We won his retrial. I’m so glad, and that’s all I can say,” said his 90-year-old sister Hideko, who has devoted her life to proving her brother’s innocence.
Amnesty International says Hakamada is the world’s longest-serving death row prisoner. Currently, 106 remain on death row. Concerns have long been raised about the cruel way inmates are notified that they are to be killed. Notice often comes just hours before execution, despite the usual, decades-long wait for the penalty to be administered. As such inmates have little chance to meet lawyers or relatives before the sentence is carried out.
The Japanese system is not without its defenders. Chiyo Kobayashi, founder of the Japanese lobbying firm Washington CORE based in the US, told a Center for Strategic and International Studies discussion paper: “Like most legal systems that exist around the world, the Japanese judicial system is tough but fair. Importantly, it works as designed: to keep criminals off the street and create one of the safest nations in the world.”
Professor Bruce Aronson, formerly of Hitotsubashi University and now with the US Asia Law Institute at New York University, noted in 2020: “It is hard to call Japan’s system a ‘failure’ when Japan has among the lowest rates of crime, incarceration and gun ownership in the world.”
Japan’s criminal justice system began as an inquisitorial system imported from Germany, hinging on a preliminary investigation conducted by an investigating magistrate or prosecutor as a means of seeking the truth; in such systems defence lawyers play a relatively minor role, and this is still evident today (despite a nominal post-war switch to a more Anglo-Saxon adversarial system) given that when cases go to trial, prosecutors have a 99 per cent success rate. The prosecutors remain very much, judge and jury.
So, what of those who find themselves on the wrong side of the system?
Kanae Doi, the Japan Director of Human Rights Watch, which is due to bring out a critical report this spring on Japan’s “archaic” system, said criminal suspects were often refused bail, questioned without the presence of their lawyer, and denied family visits. “The hostage justice system, which is designed to coerce confessions, should be consigned to the dustbin of history,” she said.
Unique among advanced democracies, Japan allows the authorities to hold suspects for 23 days without bail – and then to repeat this process over and over by adding new charges, which were deliberately withheld the first time around.
Shinya Takeda, a campaigner at Amnesty Japan, said: “It leads people into being pressured into saying things they don’t want to; 23 days is a long time by yourself in this situation.”
Numerous examples show how poor people, in particular, fall victim. In January 2020 in Osaka, a man was arrested for allegedly causing the death of a two-month-old child by shaking. The police had no clear evidence – medical or otherwise – that shaking was the cause of death. The man and his wife were investigated for nearly 10 months prior to the man being arrested. He remained in custody for nearly nine months and was told that if he didn’t confess, his wife would be prosecuted. He was finally acquitted.
In Tokyo, a man with cancer was charged with fraud. His family told Human Rights Watch that his health worsened in custody as the jail authorities refused to give him the medication prescribed by his doctor or allow the doctor to assess his health. He was kept in custody for 156 days, during which his bail request on medical grounds was rejected at least seven times. He died of cancer shortly after being released.
But there are people even below the usual blue-collar workers in the pecking order – the refugees bold enough to seek asylum in Japan.
Japan’s refugee acceptance rate is already by far the lowest of any G20 nation, with only 74 applications accepted in 2021 and more than 10,000 believed to have been rejected – indicating a success rate of less than 1 per cent.
Mr Takeda told i there was something about Japanese traditions that reinforced hostility towards foreigners and migrants.
“We have this term ‘gaijin’ or outsider,” he said. “Comedians often joke: ‘We’re not racist, because for us anyone – of any race – who’s not Japanese will always be gaijin.’”
Based on interviews with current and former immigration facility detainees, officers from the Immigration Services Agency, and NGO workers, Amnesty has found that human rights violations within the system included arbitrary and indefinite detention, ill-treatment by immigration officers – including beatings and the use of solitary confinement – and poor medical care. One detainee said: “I saw a person who tried to cut his throat in an attempt to kill himself. I saw many other people who had taken [swallowed] detergent in an attempt to kill themselves.”
But things may get worse, not better. The Japanese parliament is considering an amendment to the country’s Immigration Control and Refugee Recognition Act, which would allow the authorities to detain irregular migrants indefinitely – effectively life in prison for refugees. This would include people who enter Japan to seek asylum or attempt to seek asylum after entering the country. Mr Takeda said it could pass as soon as June this year.
The government first submitted the bill in early 2021 but withdrew it amid a public outcry over the death of 33-year-old Ratnayake Liyanage Wishma Sandamali, an asylum-seeker from Sri Lanka, in detention. Ms Sandamali was repeatedly denied medical treatment despite complaining about being in pain.
Hideaki Nakagawa, Amnesty International Japan’s Director, said: “Far from being helped in their hour of need, migrants speak of being subjected to arbitrary, endless detention in prison-like immigration facilities.
“Their testimonies make clear that Japan’s immigration detention system needs reform, but instead the Japanese authorities are attempting to pass an amendment bill that will enable them to carry on detaining asylum-seekers and other irregular migrants by default.”
On 31 January this year, the Working Group of the United Nations Human Rights Council issued a raft of recommendations for Japan to implement to bring it in line with 21st Century standards, including the abolition of the death penalty and radically better treatment of detainees.
Motoji Kobayashi, president of Japan Federation of Bar Associations, called on his government to implement them. “Japan is considered to be lagging behind the international human rights standards. In order for it to occupy an honourable place in international society, we strongly request that concrete efforts be initiated as soon as possible,” he said.