Capital Punishment and Victim Support

Transcription

1 Capital Punishment and Victim Suppt Von Yuji Ogawara* I. Capital Punishment 1. The Views of the Japan Federation of Bar Associations (JFBA) As far as capital punishment is concerned, the Japanese criminal justice system is a breach of the international human rights laws. F instance, the rights to defense are not fully guaranteed on any phase of procedures in capital cases (under interrogation, during trial, in post-conviction procedures and on execution). Though several acquittals of capital crime in retrial in the 80s proved that miscarriages of justice still existed in capital cases, no refm has been carried out by now. Concerning the boundary between capital punishment and imprisonment f an indefinite period, it depends on who makes a ruling. Appellant courts often quash the iginal sentence and change it from imprisonment to capital punishment, in the opposite direction. Cases sometimes go back and fth between courts on different levels. These facts will undermine the reliability (the fairness and equality) of capital sentences. So executions should not be carried out, unless a drastic refm has been made on the system at least. Thus, the JFBA is now calling f death penalty matium, though the Federation takes no position on whether capital punishment should be abolished not. 2. The Present Situation in Japan - Executions have been repeated since the resumption in Accding to a public opinion poll, approximately 80 % are f the retention of capital punishment II. Victim Suppt 1. The Views of the JFBA In Japan, a lot of crime victims have been kicked around and have lived in helplessness. The situation concerning victim suppt is very serious and deviates from the international standards. It is a duty of the government and of the community to ensure that crime victims recover from various kinds of damages and pursue a happy life guaranteed by the Constitution. Victims should be suppted on every stand-point (legally, economically and mentally). 2. The Present situation in Japan The crime victim compensation act was enacted in But the scheme is just a kind of benefit. It requires that victims be involved in such crime as constitutes an infringement of life a bodily injury with intention due to negligence to get compensations. Eligible f the award are only victims who have Japanese citizenship a residence in Japan. (F a fatal injury award, the bereaved family is required to meet the same criterion). The amount of award is small (The award was 2,920,000 yen per qualifying victim on average and the number of those awarded was 482 in 2003). If victims are offender s relatives they induce the crime, they are not eligible f award. If victims receive other public compensation one from the offender, there will be a reduction in the amount of award. Anyway, victims have to make a claim to the authities in 2 after they know the crime in 7 after the occurrence of the crime. In 2004, the victim suppt fundamental law was enacted. It provides, as its basic idea, that all victims should enjoy the right to have their dignity highly considered and be secured proper treatments due to their dignity. It provides, as its ultimate purpose, that the government, local public entities and non governmental ganizations should cooperate with one another in der to promote comprehensive and systematic schemes f victim suppt and secure victims rights. Currently, a conference f promotion of victim suppt was set up in the Government to consider the issues including the expansion of criminal injuries compensation scheme, the introduction of health insurance coverage on medical care f crime victims, the intervention of victims in criminal procedures. III. Capital Punishment and Victim Suppt Capital punishment and victim suppt are two different things. However, some people insist that capital punishment be retained because victim suppt is undeveloped. Other people have an idea that victim suppt should not be a means f the abolition of capital punishment. When you consider capital punishment, you should take into account the fact that victim suppt still lags far behind. The reverse is also true, that is, when you pursue victim suppt, you should not fget about the necessity to solve capital punishment problems. The establishment of victims rights and the settlement of capital punishment problems including matium and reviews of the system are both very significant. It s not a question of priities. The two values are not zero-sum, either. Therefe, you should not set the one against the other, n should you balance the two issues crelatively. On the contrary, you should pursue the one in parallel with the other at the same time. * Acting Security-general of the Death Penalty Matium Implementation Committee of the Japan Federation of Bar Associations. 372 ZIS 8/2006

2 Capital Punishment and Victim Suppt Appendix How is imprisonment f an indefinite period used in Japan? 1. In Japan, there is a theetical possibility that those sentenced to imprisonment f an indefinite period are granted parole after serving f 10 if they are penitent of the crime they committed, which is provided under Section 28 of the Penal Code. 2. The numbers of those sentenced to imprisonment f an indefinite period at District Court are shown in the chart below. They have increased on the whole since year Total murder robbery involving others result of death injury Zeitschrift für Internationale Strafrechtsdogmatik 373

3 Yuji Ogawara 3. Treatment of inmates sentenced to imprisonment f an indefinite period (1) The numbers of those who were newly put into crectional institution after the sentence to imprisonment f an indefinite period are demonstrated in the chart below. They have increased on the whole since year men women total (2) The numbers of those who were sentenced to imprisonment f an indefinite period and are serving their sentence in crectional institution are shown in the chart below. They have also increased on the whole. year men women total , , , , , , , ZIS 8/2006

4 Capital Punishment and Victim Suppt (3) As of 1 August 2000, the numbers of those who had been sentenced to imprisonment f an indefinite period and had served f 25 me are demonstrated in the chart below. In addition, a certain prisoner who was sentenced to imprisonment f an indefinite period had served f 52 and 10 months and that was the longest recd as of 28 February me, less than me, less than me, less than me, less than me, less than me, less than me, less than e me, less than me, less than me, less than me, less than me 0 Zeitschrift für Internationale Strafrechtsdogmatik 375

5 Yuji Ogawara 4. Parole granted to those who were sentenced to imprisonment f an indefinite period (1) The numbers of those who had been sentenced to imprisonment f an indefinite period and were subsequently granted parole are shown in the chart below. The that they had served when the parole was granted are in the same chart. Accding to the statistics, the number of those who were granted parole is ranging from a little less than 10 to ten-odd each year, but the they had served when they were granted parole have been increasing on average. Considering that 60 prisoners me were granted pardon each year from 1965 to 1975 (f example, 105 in 1975), much fewer prisoners have been granted parole recently. Nowadays it seems to be me difficult to be granted parole, partly because of the increase of indefinite period prisoners. year total number me than 20 period on average less less less less less less less and 1 month and 3 months and 1 month and 11 months and 1 month and 3 months and 5 months and 6 months and 10 months and 4 months and 2 months and 8 months and 5 months 376 ZIS 8/2006

6 Capital Punishment and Victim Suppt (2) The proptions of the dismissals to the petitions f parole are demonstrated in the chart below. It seems me difficult f those sentenced to imprisonment f an indefinite period to be granted parole than those f definite period. year total 2.3 % 2.3 % 2.6 % those sentenced to an indefinite period imprisonment those sentenced to an definite period imprisonment 26.7 % 19.0 % 33.3 % 2.3 % 2.3 % 2.6 % (3) As of 1 April 1999, there were 67 prisoners who had been sentenced to imprisonment f an indefinite period, and no petitions f parole had been filed f 43 of the 67 prisoners. 5. To Conclude Recently, those who are sentenced to imprisonment f an indefinite period and put to crectional institution have increased remarkably and consequently the number of those who are serving the sentence has increased on the whole. Nevertheless fewer prisoners have been granted parole on a long-term basis. Even if they have an opptunity to file a petition f parole, they still have a greater likelihood of getting it dismissed. Nowadays it takes 23 and me f them to be granted parole. On the other hand, they are me likely to have no opptunity to file a petition f parole and have to serve f me than 30, falling ill mentally physically in the wst case. It seems that not a few prisoners are confined in complete isolation. It is likely that the me restrictively parole is administrated, the longer they have to serve, and it will cause the increase of the population of those who are serving an indefinite period imprisonment. And me of them might come to an end in crectional institution. It is not too much to say that now imprisonment f an indefinite period has been partly changed to life imprisonment in practice. Zeitschrift für Internationale Strafrechtsdogmatik 377