HUMAN RIGHTS COMMITTEE Ninety-fourth session Geneva, 13-31 October 2008
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT
Concluding observations of the Human Rights Committee
Japan
1. The Human Rights Committee considered the fifth periodic report submitted by Japan (CCPR/C/JPN/5) at its 2574th, 2575th and 2576th meetings (CCPR/C/SR.2574, 2575 and 2576), held on 15 and 16 October 2008, and adopted the concluding observations below at its 2592nd, 2593rd and 2594th meetings (CCPR/C/SR.2592, 2593 and 2594), held on 28 and 29 October 2008.
A. Introduction
2. The Committee welcomes the State party’s comprehensive fifth periodic report and written replies to the list of issues and the detailed answers given by the delegation to the Committee’s oral questions. It notes, however, that the report was submitted in December 2006, although it was due in October 2002. The Committee appreciates the presence of a large high-level inter‑ministerial delegation and of a large number of national non-governmental organizations, showing a strong interest in the dialogue.
B. Positive aspects
3. The Committee welcomes the adoption of several legislative and institutional measures designed to advance the equal enjoyment of rights by men and women, in particular:
(a) The adoption of the Basic Law for a Gender-Equal Society in 1999;
(b) The appointment of a Government minister for gender equality;
(c) The approval by the Cabinet in 2005 of the Second Basic Plan for Gender Equality, which sets the objective that women shall occupy at least 30 per cent of leadership positions in all fields of society by 2020;
(d) The establishment of a gender equality bureau, which promotes the Basic Plan for Gender Equality and coordinates basic policies for the development of a gender-equal society.
4. The Committee notes the measures taken by the State party to protect and assist victims of gender-based violence and exploitation, including domestic violence, sexual violence and trafficking in persons, such as the establishment of spousal violence counselling and support centres, women’s consulting offices and women’s protection facilities; the increase in the number of protection orders and the extension of their scope under the revised Act on the Prevention of Spousal Violence and the Protection of Victims; and the adoption in 2004 of a plan of action on measures to combat trafficking in persons and the establishment of an inter‑ministerial liaison committee (task force) to combat trafficking.
5. The Committee welcomes the State party’s accession to the Rome Statute of the International Criminal Court in 2007.
C. Principal subjects of concern and recommendations
6. The Committee is concerned that many of its recommendations made after the consideration of the State party’s fourth periodic report have not been implemented.
The State party should give effect to the recommendations adopted by the Committee in the present as well as in its previous concluding observations.
7. The Committee notes the absence of information on domestic court decisions, other than Supreme Court judgements finding no violation of the Covenant, which make direct reference to provisions of the Covenant (art. 2).
The State party should ensure that the application and interpretation of the Covenant form part of the professional training for judges, prosecutors and lawyers and that information about the Covenant is disseminated at all levels of the judiciary, including the lower courts.
8. The Committee notes that one of the reasons why the State party has not ratified the first Optional Protocol to the Covenant is the concern that such ratification may give rise to problems with regard to its judicial system, including the independence of its judiciary.
The State party should consider ratifying the Optional Protocol, taking into account the Committee’s consistent jurisprudence that it is not a fourth instance of appeal and that it is, in principle, precluded from reviewing the evaluation of facts and evidence or the application and interpretation of domestic legislation by national courts.
9. The Committee notes with concern that the State party has still not established an independent national human rights institution (art. 2).
The State party should establish an independent national human rights institution outside the Government, in accordance with the Paris Principles (General Assembly resolution 48/134, annex), with a broad mandate covering all international human rights standards accepted by the State party and with competence to consider and act on complaints of human rights violations by public authorities, and allocate adequate financial and human resources to the institution.
10. While taking note of the State party’s explanation that “public welfare” cannot be relied on as a ground for placing arbitrary restrictions on human rights, the Committee reiterates its concern that the concept of “public welfare” is vague and open-ended and may permit restrictions exceeding those permissible under the Covenant (art. 2).
The State party should adopt legislation defining the concept of “public welfare” and specifying that any restrictions placed on the rights guaranteed in the Covenant on grounds of “public welfare” may not exceed those permissible under the Covenant.
11. The Committee reiterates its concern about discriminatory provisions in the Civil Code affecting women, such as the prohibition for women to remarry in the six months following divorce and the different age of marriage for men and women (art. 2 (1), 3, 23 (4) and 26).
The State party should amend the Civil Code, with a view to eliminating the period during which women are prohibited from remarrying following divorce and harmonizing the minimum age of marriage for men and women.
12. The Committee notes with concern that, despite numerical targets for the representation of women in public offices, women hold only 18.2 per cent of the seats in the Diet and 1.7 per cent of Government posts at the level of directors of ministries, and that some of the numerical targets set in the 2008 programme for accelerating women’s social participation are extremely modest, such as the 5 per cent target for women’s representation in positions equivalent to directors of ministries by 2010 (art. 2 (1), 3, 25 and 26).
The State party should intensify its efforts to achieve equitable representation of women and men in the National Diet and at the highest levels of the Government and in the public service, within the time frame set in the Second Basic Plan for Gender Equality adopted in 2005, by adopting special measures such as statutory quota and by reviewing numerical targets for women’s representation.
13. The Committee is concerned about reports that women hold only 10 per cent of management positions in private companies and earn on average only 51 per cent of men’s salaries, that women account for 70 per cent of informal workers and as such are excluded from benefits such as paid leave, maternity protection and family allowance, are vulnerable to sexual harassment owing to their unstable contractual situation, and that they are often forced to work as part-time workers to sustain family life (art. 2 (1), 3 and 26).
The State party should take measures to promote the recruitment of women as formal workers and to eliminate the gender wage gap, including (a) require all companies to take positive action to ensure equal employment opportunities for women; (b) review any deregulation of labour standards resulting in longer working hours; (c) further increase the number of child-care facilities, with a view to enabling women as well as men to balance work and family life; (d) relax the conditions for equal treatment of part-time workers under the revised Part-Time Workers Law; (e) criminalize sexual harassment at the workplace; (f) extend the prohibited forms of indirect discrimination under the Law on Equal Opportunity and Treatment of Men and Women to include the different treatment of employees on the basis of their status as heads of household or as part-time or contract employees; and (g) adopt effective measures to prevent indirect discrimination.
14. The Committee notes with concern that the definition of rape in article 177 of the Criminal Code only covers actual sexual intercourse between men and women and requires resistance by victims against the attack, and that rape and other sexual crimes cannot be prosecuted without a complaint filed by the victim except in cases where the victim is under 13 years of age. It is also concerned about reports that perpetrators of sexual violence frequently escape just punishment or receive light sentences, that judges often unduly focus on the sexual past of victims and require them to provide evidence that they have resisted the assault, that the monitoring and enforcement of the revised Prison Law and the guidelines of the National Police Agency for victim support is ineffective, and that there is a lack of doctors and nurses with specialized training in sexual violence, as well as of support for non-governmental organizations providing such training(art. 3, 7 and 26).
The State party should broaden the scope of the definition of rape in article 177 of the Criminal Code and ensure that incest, sexual abuse other than actual sexual intercourse, as well as rape of men, are considered serious criminal offences; remove the burden on victims to prove resistance against the assault; and prosecute rape and other crimes of sexual violence ex officio. It should also introduce mandatory gender‑sensitive training in sexual violence for judges, prosecutors and police and prison officers.
15. The Committee is concerned that sentences for perpetrators of domestic violence are reportedly lenient and that violators of protection orders are only arrested in cases of repeated violations or when they ignore warnings. It is also concerned that there is a lack of long-term assistance for victims of domestic violence, and that the delays in granting foreign victims of domestic violence residence status effectively bar them from applying for stable employment and from having access to social security benefits (art. 3, 7, 26 and 2 (3)).
The State party should review its sentencing policy for perpetrators of domestic violence, detain and prosecute violators of protection orders, increase the amount of compensation for victims of domestic violence and of child-rearing allowances for single mothers, enforce court orders for compensation and child support, and strengthen long-term rehabilitation programmes and facilities, as well as assistance for victims with special needs, including non-citizens.
16. While noting that, in practice, the death penalty is only imposed for offences involving murder, the Committee reiterates its concern that the number of crimes punishable by the death penalty has still not been reduced and that the number of executions has steadily increased in recent years. It is also concerned that death row inmates are kept in solitary confinement, often for protracted periods, and are executed without prior notice before the day of execution and, in some cases, at an advanced age or despite the fact that they have mental disabilities. The non-use of the power of pardon, commutation or reprieve and the absence of transparency concerning procedures for seeking benefit for such relief is also a matter of concern (art. 6, 7 and 10).
Regardless of opinion polls, the State party should favourably consider abolishing the death penalty and inform the public, as necessary, about the desirability of abolition. In the meantime, the death penalty should be strictly limited to the most serious crimes, in accordance with article 6, paragraph 2, of the Covenant. Consideration should be given by the State party to adopting a more humane approach with regard to the treatment of death row inmates and the execution of persons at an advanced age or with mental disabilities. The State party should also ensure that inmates on death row and their families are given reasonable advance notice of the scheduled date and time of the execution, with a view to reducing the psychological suffering caused by the lack of opportunity to prepare themselves for this event. The power of pardon, commutation and reprieve should be genuinely available to those sentenced to death.
17. The Committee notes with concern that an increasing number of defendants are convicted and sentenced to death without exercising their right of appeal, that meetings of death row inmates with their lawyer in charge of requesting a retrial are attended and monitored by prison officials until the court has decided to open the retrial, and that requests for retrial or pardon do not have the effect of staying the execution of a death sentence (art. 6 and 14).
The State party should introduce a mandatory system of review in capital cases and ensure the suspensive effect of requests for retrial or pardon in such cases. Limits may be placed on the number of requests for pardon in order to prevent abuse of the suspension. It should also ensure the strict confidentiality of all meetings between death row inmates and their lawyers concerning retrial.
18. The Committee reiterates its concern that, despite the formal separation of the police functions of investigation and detention under the Act on Penal Detention Facilities and Treatment of Inmates and Detainees, the substitute detention system (Daiyo Kangoku), under which suspects can be detained in police detention facilities for a period up to 23 days to facilitate investigations, without the possibility of bail and with limited access to a lawyer espe