Strasbourg, 1 February 2006
Consultative Council of European Judges (CCJE)
Questionnaire on “The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of Japan
We provide judges with training, upon necessity, on the trends in international and foreign law, including law in European countries. For instance, in the training course for newly appointed judges, we provide lectures on the law of international human rights as part of in-service training. In 2005, 127 judges attended the lectures. In addition, in the training course for judges who have newly assumed the position of leadership in courts, we provide lectures on international human rights issues as well as their global trends, mainly with a focus on the International Covenants on human rights. In 2005, 36 judges attended the lectures.
We distribute to judges (1) the final comments made by the Human Rights Committee on the reports submitted under Article 40 of the International Covenant on Civil and Political Rights (as of January 19, 1998) and (2) the final comments made by the Commission on Economic, Social and Cultural Rights in connection with the reports submitted under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights (as of September 24, 2001), taking various opportunities of training courses in order to ensure all judges receive such documents.
The total number of judges in our country is 3266.
There are no measures and policies for all judges. However, the judges of Intellectual Property High Court have licensed access to “Westlaw,” a legal database service in the U.S., which enables the judges to perform their own research on foreign laws, etc.
Major information that is accessible via Westlaw is as follows:
- US patent information;
- Laws and regulations on US patent information and intellectual property rights as well as court precedents;
- Laws and regulations on the other fields as well as court precedents;
- Information on global economy, politics, science and technology, etc.
There are no foreign language courses only for the purpose of language acquisition for judges. However, we send a considerable number of judges to colleges and courts to provide opportunities to study and research the judicial system in Europe and the United States every year. Courts do not have legal translation facilities.
(1) With regard to the hierarchy of law in relation to the Constitution and treaties, it is commonly believed in theory that the Constitution secures supremacy over international treaties because: Article 99 of the Constitution imposes on the Ministers of State who have the power to conclude treaties and the members of the Diet who have the power to approve such treaties the obligation to respect and uphold the Constitution; The power to conclude treaties is a competence of the State organs vested by the Constitution, so that the State organs may not revise the Constitution as it is the very ground for their competence; While the amendment to the Constitution requires a resolution with voting of the members of each House, which must also be followed by a referendum, the conclusion of treaties only necessitates the cabinet act of conclusion and Diet approval. Such treaties cannot be considered to have supremacy over the Constitution.
In addition, there is the precedent of the Grand Bench Judgment of the Supreme Court dated December 16, 1959 (Keishu (Reports of the Supreme Court Decision on Criminal Cases), Vol. 13, No. 13, at 3225), which is considered to render the judgment on the premise that treaties may be subject to judicial review to determine the constitutionality.
(2) With regard to the hierarchy of law in relation to treaties and ordinary legislation, it is nearly agreed in theory that treaties have superiority over ordinary legislation because treaties are international engagements and the Constitution requires an approval by the Diet for conclusion of treaties as well as faithful observance of the treaties.
In addition to the Penal Code and the Code of Criminal Procedure as general laws, our country has special laws applicable to cases of criminal offenses including terrorism:
- Subversive Activities Prevention Act (promulgated in 1952)
- Law for Punishing the Seizure of Aircraft and Other Related Crimes (promulgated in 1970)
- Law for Punishing the Acts That May Cause Danger to Aviation and Other Related Crimes (promulgated in 1974)
- Law for the Implementation of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction and Other Related Treaties (promulgated in 1982)
- Law on the Prohibition of Chemical Weapons and Control of Specific Substances (promulgated in 1995)
- Law on the Prevention of Personal Injury Caused by Sarin, etc. (promulgated in 1995)
- Law for Punishing the Organized Crimes and for the Regulation of Benefit from Crimes and Other Related Acts (promulgated in 1999)
- Law on Communications Interception During Criminal Investigations (promulgated in 1999)
- Special Measures Law on the Measures Taken by Our State in Relation to the Activities Conducted by Foreign States to Accomplish the Purposes of the United Nations in Response to the Terrorist Attacks in the United States of America on September 11, 2001 as Well as on the Humanitarian Measures Based on the Related Resolutions of the United Nations (promulgated in 2001)
- Law for the Development of Related Laws Associated with the Conclusion of the International Convention for the Suppression of Terrorist Bombings (promulgated in 2001)
In the field of administrative law, there is not any substantive or procedural law specifically applicable to cases where a suspicion about terrorism exists.
However, with respect to substantive law, the Immigration-Control and Refugee-Recognition Act enumerates aliens who may not effect an admission into Japan (Article 5, Para1) and the Passport Law enumerates the cases in which the Minister of Foreign Affairs and the other related organ may refuse to issue a general passport (Article 13, Para 1). These provisions may be considered to be applicable to the cases where a suspicion about terrorism exists, as well.
There is no particular difference in the roles of the judges between the proceedings in the cases where a suspicion about terrorism exists and ordinary proceedings. A person who is not admitted into Japan as a result of application of the above-mentioned relevant provisions of the Immigration-Control and Refugee-Recognition Act or who is refused a passport under the Passport Law may apply to the Court to reverse such action of non-recognition and the like, but still is the role of the judges in such a case not different from his or her role in ordinary proceedings.
In our country, even the special laws applicable to cases of criminal offenses including terrorism stipulate the requirements and procedures for their application in order to reconcile the demands of security and the protection of human rights, just as the general laws of the Penal Code and the Code of Criminal Procedure do. Judges should interpret and apply these provisions of laws properly, by which the demands of security and the protection of human rights are properly reconciled.
In many cases, such special penal laws as applicable to cases of criminal offenses including terrorism impose heavier punishments than the general Penal Code. However, as described above, there are no such special procedures to be used in the special laws applicable to cases of criminal offenses including terrorism as different from those in the general Penal Code or Code of Criminal Procedure, so that any specific case in which the issue of reconciliation between the demands of security and of the protection of human rights would arise has never been brought before the Court.
Neither the Immigration-Control and Refugee-Recognition Act nor the Passport Law provide special measures to be used for reconciliation between the demands of security and the protection of human rights for a person against whom a suspicion about terrorism exists.
In comparison, in administrative proceedings, the rights and interests of the person disposed are guaranteed in general through due process. An example of such due process protection is the case in which the lack of adequate reason is at issue: In this case, the issuance of a general passport was refused on the ground that there was a certain connection to the Japan Red Army. However, the notice of this disposition did not describe the detailed fact for the application of the relevant provision but only stated “[it] falls under Article 13, Para 1, Sub-Para 5 of the Passport Law.” The Court held that this was the lack of adequate reasons and therefore the disposition was unlawful (Judgment of Supreme Court, Third Petty Bench, January 22, 1985, Minshu (Report of the Supreme Court Decision on Civil Cases), Vol. 39, No. 1, at 1).