United Nations
CCPR
International covenant on civil and political rights
Distr. GENERAL
CCPR/C/79/Add.102
19 November 1998
Original: †ENGLISH
Courtesy http://www.hri.ca/fortherecord1998/documentation/tbodies/ccpr-c-79-add102.htm
Emphases in red boldface added by website author
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HUMAN RIGHTS COMMITTEE
Sixty-fourth session
CONSIDERATION OF REPORTS SUBMITTED BY STATES
PARTIES UNDER ARTICLE 40 OF THE COVENANT
Concluding observations of the Human Rights Committee
Japan
1. The Committee considered the fourth periodic report of Japan (CCPR/C/115/Add.13
and Corr. 1) at its 1714th to 1717th meetings (CCPR/SR.1714-1717), held on 28 and
29 October 1998, and adopted the following concluding observations at its 1726th
and 1727th meetings (CCPR/C/SR.1726-1727), held on 5 November 1998.
A. Introduction
2. The Committee expresses its appreciation for the frank and forthright replies
given by the delegation to the issues raised by the Committee and the clarifications
and explanations given in answer to the oral questions put by the members of the
Committee. The Committee is also appreciative of the presence of the large delegation
representing various branches of the Government, which demonstrates the seriousness
of the State party in meeting its obligations under the Covenant. The Committee also
commends the State party for having given wide publicity to its report and to the
work of the Committee. It welcomes the large number of lawyers and non-governmental
organizations present during the discussion of the report.
B. Positive aspects
3. The Committee commends the Government for the ongoing process of bringing
its legislation into line with the provisions of the Covenant. It welcomes the enactment
of the Law on the Promotion of Measures for Human Rights Protection, as well as amendments
to other laws such as the Equal Employment Opportunities Law, the Standard Labour
Law, the Immigration Control and Refugee Recognition Act, the Penal Code, the Child
Welfare Law, the Election Law and the Entertainment Business Law, and the draft bill
aimed at punishing Japanese nationals involved in child prostitution and child pornography.
4. The Committee notes with satisfaction the establishment, at Cabinet level, of
the Council for the Promotion of Gender Equality, aimed at investigating and developing
policies for the achievement of a gender-equal society and its adoption of the Plan
for Gender Equality 2000. The Committee also notes the measures being taken by the
human rights organs of the Ministry of Justice to deal with the elimination of discrimination
and prejudice against students at Korean schools in Japan, children born out of wedlock
and children of the Ainu minority.
5. The Committee welcomes the abolition of restrictions on women's eligibility to
take the national public service examination, the abolition of discriminatory compulsory
retirement, and of dismissals on grounds of marriage, pregnancy or childbirth.
C. Principal subjects of concern and recommendations
6. The Committee regrets that its recommendations issued
after the consideration of the third periodic report have largely not been implemented.
7. The Committee stresses that protection of human rights
and human rights standards are not determined by popularity polls. It is concerned
by the repeated use of popularity statistics to justify attitudes of the State party
that may violate its obligations under the Covenant.
8. The Committee reiterates its concern about the restrictions which can be placed
on the rights guaranteed in the Covenant on the grounds of "public welfare",
a concept which is vague and open-ended and which may permit restrictions exceeding
those permissible under the Covenant. Following upon its previous observations, the
Committee once again strongly recommends to the State party to bring
its internal law into conformity with the Covenant.
9. The Committee is concerned about the lack of institutional
mechanisms available for investigating violations of human rights and for providing
redress to the complainants. Effective institutional mechanisms
are required to ensure that the authorities do not abuse their power and that they
respect the rights of individuals in practice. The Committee is of the view that
the Civil Liberties Commission is not such a mechanism, since it is supervised by
the Ministry of Justice and its powers are strictly limited to issuing recommendations.
The Committee strongly recommends to the State party to set up an independent mechanism
for investigating complaints of violations of human rights.
10. More particularly, the Committee is concerned that there is no
independent authority to which complaints of ill-treatment by the police and immigration
officials can be addressed for investigation and redress. The Committee
recommends that such an independent body or authority be set up by the State party
without delay.
11. The Committee is concerned about the vagueness of the
concept of "reasonable discrimination", which, in the absence of objective
criteria, is incompatible with article 26 of the Covenant. The Committee finds that
the arguments advanced by the State party in support of this concept are the same
as had been advanced during the consideration of the third periodic report, and which
the Committee found to be unacceptable.
12. The Committee continues to be concerned about discrimination against children
born out of wedlock, particularly with regard to the issues of nationality, family
registers and inheritance rights. It reaffirms its position that pursuant to article
26 of the Covenant, all children are entitled to equal protection, and recommends
that the State party take the necessary measures to amend its legislation, including
article 900, paragraph 4, of the Civil Code.
13. The Committee is concerned about instances of discrimination against members
of the Japanese-Korean minority who are not Japanese citizens, including the non-recognition
of Korean schools. The Committee draws the attention of the State party to General
Comment No. 23 (1994) which stresses that protection under article 27 may not be
restricted to citizens.
14. The Committee is concerned about the discrimination against members of the Ainu
indigenous minority in regard to language and higher education, as well as about
non-recognition of their land rights.
15. With regard to the Dowa problem, the Committee acknowledges the acceptance by
the State party of the fact that discrimination persists vis-�-vis members of the
Buraku minority with regard to education, income and the system of effective remedies.
The Committee recommends that the State party take measures to put an end to such
discrimination.
16. The Committee is concerned that there still remain in the domestic legal order
of the State party discriminatory laws against women, such as the prohibition for
women to remarry within six months following the date of the dissolution or annulment
of their marriage and the different age of marriage for men and women. The Committee
recalls that all legal provisions that discriminate against women are incompatible
with articles 2, 3 and 26 of the Covenant and should be repealed.
17. The Committee reiterates the comment made in its concluding observations at the
end of the consideration of Japan's third periodic report that the
Alien Registration Law, which makes it a penal offence for alien permanent residents
not to carry certificates of registration at all times and imposes criminal sanctions,
is incompatible with article 26 of the Covenant. It once again recommends
that such discriminatory laws be abolished.
18. Article 26 of the Immigration Control and Refugee Recognition Act provides that
only those foreigners who leave the country with a permit to re-enter are allowed
to return to Japan without losing their residents status and that the granting of
such permits is entirely within the discretion of the Minister of Justice. Under
this law, foreigners who are second- or third-generation permanent residents in Japan
and whose life activities are based in Japan may be deprived of their right to leave
and re-enter the country. The Committee is of the view that this provision is incompatible
with article 12, paragraphs 2 and 4, of the Covenant. The Committee reminds the State
party that the words "one's own country" are not synonymous with "country
of one's own nationality". The Committee therefore strongly urges the State
party to remove from the law the necessity to obtain a permit to re-enter prior to
departure, in respect of permanent residents like persons of Korean origin born in
Japan.
19. The Committee is concerned about allegations of violence and sexual harassment
of persons detained pending immigration procedures, including harsh conditions of
detention, the use of handcuffs and detention in isolation rooms. Persons held in
immigration detention centres may remain there for periods of up to six months and,
in some cases, even up to two years. The Committee recommends that the State party
review the conditions of detention and, if necessary, take measures to bring the
situation into compliance with articles 7 and 9 of the Covenant.
20. The Committee is gravely concerned that the number of crimes punishable by the
death penalty has not been reduced, as was indicated by the delegation at the consideration
of Japan's third periodic report. The Committee recalls once again that the terms
of the Covenant tend towards the abolition of the death penalty and that those States
which have not already abolished the death penalty are bound to apply it only for
the most serious crimes. The Committee recommends that Japan take measures towards
the abolition of the death penalty and that, in the meantime, that penalty should
be limited to the most serious crimes, in accordance with article 6, paragraph 2,
of the Covenant.
21. The Committee remains seriously concerned at the conditions under which persons
are held on death row. In particular, the Committee finds that the undue restrictions
on visits and correspondence and the failure to notify the family and lawyers of
the prisoners on death row of their execution are incompatible with the Covenant.
The Committee recommends that the conditions of detention on death row be made humane
in accordance with articles 7 and 10, paragraph 1, of the Covenant.
22. The Committee is deeply concerned that the guarantees contained in articles 9,
10 and 14 are not fully complied with in pre-trial detention in that pre-trial
detention may continue for as long as 23 days under police control and is not promptly
and effectively brought under judicial control; the suspect is not entitled to bail
during the 23-day period; there are no rules regulating the time and length of interrogation;
there is no State-appointed counsel to advise and assist the suspect in custody;
there are serious restrictions on access to defence counsel under article 39(3) of
the Code of Criminal Procedure; and the interrogation does not take place in the
presence of the counsel engaged by the suspect. The Committee strongly
recommends that the pre-trial detention system in Japan should be reformed with immediate
effect to bring it in conformity with articles 9, 10 and 14 of the Covenant.
23. The Committee is concerned that the substitute prison system (Daiyo Kangoku),
though subject to a branch of the police which does not deal with investigation,
is not under the control of a separate authority. This may increase the chances of
abuse of the rights of detainees under articles 9 and 14 of the Covenant. The Committee
reiterates its recommendation, made after consideration of the third periodic report,
that the substitute prison system should be made compatible with all requirements
of the Covenant.
24. The Committee is concerned that rule 4 of the Habeas Corpus Rules under the Habeas
Corpus Law limits the grounds for obtaining a writ of habeas corpus to (a) the absence
of a legal right to place a person in custody and (b) manifest violation of due process.
It also requires exhaustion of all other remedies. The Committee is of the view that
rule 4 impairs the effectiveness of the remedy for challenging the legality of detention
and is therefore incompatible with article 9 of the Covenant. The Committee recommends
that the State party repeal rule 4 and make the remedy of habeas corpus fully effective
without any limitation or restriction.
25. The Committee is deeply concerned about the fact that a large number of the convictions
in criminal trials are based on confessions. In order to exclude the possibility
that confessions are extracted under duress, the Committee strongly recommends that
the interrogation of the suspect in police custody or substitute prisons be strictly
monitored, and recorded by electronic means.
26. The Committee is concerned that under the criminal law, there is no obligation
on the prosecution to disclose evidence it may have gathered in the course of the
investigation other than that which it intends to produce at the trial, and that
the defence has no general right to ask for the disclosure of that material at any
stage of the proceedings. The Committee recommends that, in accordance with the guarantees
provided for in article 14, paragraph 3, of the Covenant, the State party ensure
that its law and practice enable the defence to have access to all relevant material
so as not to hamper the right of defence.
27. The Committee is deeply concerned at many aspects of the prison system in Japan
which raise serious questions of compliance with articles 2, paragraph 3 (a), 7 and
10 of the Covenant. Specifically, the Committee is concerned with the following:
(a) Harsh rules of conduct in prisons that restrict the fundamental rights of prisoners, including freedom of speech, freedom of association and privacy;
(b) Use of harsh punitive measures, including frequent resort to solitary confinement;
(c) Lack of fair and open procedures for deciding on disciplinary measures against prisoners accused of breaking the rules;
(d) Inadequate protection for prisoners who complain of reprisals by prison warders;
(e) Lack of a credible system for investigating complaints by prisoners; and
(f) Frequent use of protective measures, such as leather handcuffs, that may constitute cruel and inhuman treatment.
28. The Committee is concerned that the Central Labour Relations Commission refuses
to hear an application of unfair labour practices if the workers wear armbands indicating
their affiliation to a trade union. Such an action contravenes articles 19 and 22
of the Covenant. The Committee's view should be brought to the attention of the Central
Labour Relations Commission.
29. Despite the amendment to the Business Entertainment Law, traffic in women and
insufficient protection for women subject to trafficking and slavery-like practices
remain serious concerns under article 8 of the Covenant. In light of information
given by the State party on planned new legislation against child prostitution and
child pornography, the Committee is concerned that such measures may not protect
children under the age of 18 when the age limit for sexual consent is as low as 13.
The Committee is also concerned about the absence of specific legal provisions prohibiting
bringing of foreign children to Japan for the purpose of prostitution, despite the
fact that abduction and sexual exploitation of children are subject to penal sanctions.
The Committee recommends that the situation be brought into compliance with the State
party's obligations under articles 9, 17 and 24 of the Covenant.
30. The Committee continues to be gravely concerned about the high incidence of violence
against women, in particular domestic violence and rape, and the absence of any remedial
measures to eradicate this practice. The Committee is troubled that the courts in
Japan seem to consider domestic violence, including forced sexual intercourse, as
a normal incident of married life.
31. The Committee, while acknowledging the abolition of forced sterilization of disabled
women, regrets that the law has not provided for a right of compensation to persons
who were subjected to forced sterilization, and recommends that the necessary legal
steps be taken.
32. The Committee is concerned that there is no provision
for training of judges, prosecutors and administrative officers in human rights
under the Covenant. The Committee strongly recommends that such training be made
available. Judicial colloquiums and seminars should be held to familiarize judges
with the provisions of the Covenant. The Committee's general comments and the Views
expressed by the Committee on communications under the Optional Protocol should be
supplied to the judges.
33. The Committee urges the Government to take action on the ground of these concluding
observations and to consider them in the preparation of the fifth periodic report.
It also recommends that the State party continue reviewing its laws, and making appropriate
amendments, so as to bring its legislation into full conformity with the Covenant.
The Committee recommends that the State party take measures to provide remedies to
victims of violations of human rights and, in particular, that it ratify the Optional
Protocol to the Covenant.
34. The Committee expects that in implementing these concluding observations the
State party will engage itself in a dialogue with all domestic interested parties,
including non-governmental organizations. The Committee urges the State party to
ensure the wide dissemination of its report and of these concluding observations.
35. The Committee has fixed the date of submission of Japan's fifth periodic report
to be October 2002.
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Copyright 1998
Office of the United Nations High Commissioner for Human Rights
Geneva, Switzerland