DPRU Q&As: Takeshi Kaneko, Lawyer, Japan: Part One

In this instalment of the DPRU's Q&A series with death penalty litigators, DPRU Project Manager Daniel Cullen speaks to Takeshi Kaneko, a Japanese lawyer, about his legal practice, his efforts to reform Japan’s death penalty system through litigation, the difficulties of pursuing these legal reforms, and his personal motivations for working on death penalty cases. 

Please could you briefly your work as a lawyer and explain where litigation on death penalty cases fits within your legal practice?  

I am 76 years old, I have been a lawyer since 1973 and for 50 years I have done all the civil, domestic, administrative and criminal work that ordinary lawyers do. In 2011, I was President of the Osaka Bar Association and Vice-President of the Japan Federation of Bar Associations.

I have been involved in ‘policy-making litigation’ that challenges the errors of government policy, including regarding the death penalty. Other examples include pollution litigation, drug litigation and consumer litigation.

You have previously represented death row inmates seeking compensation for psychological harm. What can you tell us about the psychological impacts of life on death row in Japan?

This case is a 'same-day notice, same-day execution' lawsuit. In Japan, executions are announced on the morning of the day of execution. As a result, prisoners on death row live in daily fear that they may be executed. Some death row inmates suffer from mental illness as a result of living under such conditions for a long time. The case of Iwao Hakamada, who was recently acquitted after a retrial, is a typical example.

This kind of same-day notification, same-day execution is cruel. In Trinidad and Tobago, this was remedied by the UK Privy Council, which ruled in the case of Guerra v Baptiste and others [1995] UKPC 3 that 17 hours’ notice of execution was unconstitutional.  

As same-day notice, same-day executions are in breach of the Constitution of Japan and the International Covenant on Civil and Political Rights (ICCPR), they must be stopped, and a lawsuit has been filed against the executioner to confirm that there is no obligation to accept same-day notice, same-day execution, and to seek compensation for damages.

Can you tell us about your other litigation work on the death penalty?

I have never defended a death penalty case as a criminal case. However, I have brought policy-making litigation to change the death penalty system in administrative and civil cases, because the Japanese death penalty system is wrong.

First, death sentences are carried out by the Ministry of Justice even if a death-row inmate requests a retrial. This violates Article 20 of the Constitution of Japan and Article 6 of the ICCPR. This must be stopped.

The second is the action to stop same-day notice and same-day execution, as discussed in the previous question.

Third, hanging, as provided for in Article 11 of the Japanese Penal Code, constitutes cruel and unusual punishment in violation of Article 36 of the Constitution and Article 6 of the ICCPR. The death penalty by hanging is rare, cruel and unacceptable. We have filed a complaint calling for the abolition of the use of hanging.

Fourth, executions in Japan are not made public. There are no publicly available records of executions. We are bringing a court case to seek disclosure of records of six well-known past executions, such as those of Norio Nagayama and Shoko Asahara (Chizuo Matsumoto).

The above four cases have been filed and are currently before the courts. What we see here is a disastrous situation in Japan, where the Ministry of Justice does whatever it wants with regards to executions, where justice is not served and illegal conditions are rampant. We would like to challenge this.

What are the biggest challenges you face as a lawyer working on death penalty-related cases in Japan?

The biggest challenge in criminal cases involving the death penalty and in administrative and civil cases seeking its amelioration is the lack of understanding of the judiciary and courts. The courts have a bias against death row inmates. The Japanese judiciary should judge death penalty cases and the death penalty system impartially and try to improve the system in the future. However, the courts are trying to avoid this.

In criminal cases, they are preoccupied with the consequences of the crimes committed by the accused and flinch at the weight of the death penalty in litigation seeking systemic reform. Courts are unable to make drastic rulings and are content with the status quo. The major challenge is how to persuade such courts to reform the death penalty system.

Given your career trajectory and personal motivations, how did you end up working on capital cases? Was this something you imagined when you started your legal training?

In 2002, I became chairperson of the Japan Federation of Bar Associations' Committee on Death Penalty Issues. In the process, I got to know many lawyers involved in death penalty issues.

Defence lawyers in death penalty cases are not disconnected from the condemned prisoner even after the death sentence has been confirmed. Death row inmates have no one to turn to but their defence counsel. Defence lawyers volunteer to look after death row inmates. I respect these defence lawyers. Personally, however, there are limits to their efforts to remain responsible without remuneration.

I was convinced that in order to change this situation, the death penalty system needed to be changed. However, when I originally started my legal training and became a lawyer, it never occurred to me to do this kind of work.

What motivates you to continue working on capital cases? Who has inspired you a lawyer?

Japan's death penalty system remains illegal, with the Ministry of Justice doing whatever it wants. No one has been able to challenge it.

As a lawyer, I am ashamed that Japan continues to have such an illegal situation. I feel ashamed to the world, including the UN and European countries, and also to the Japanese people. I am convinced that it is the responsibility of those who have been involved in law to change this illegal and shameful situation.

Therefore, in 2020, we established a foundation with private funds. With support from the foundation, we have formed a team of lawyers to change the death penalty, one case per year, starting in 2020, and have filed four lawsuits over a period of four years.

The death penalty system must be changed. The aim was to do something about this situation and to improve Japan's death penalty system through litigation.

Many lawyers have been the catalyst for this. Among them, to name a few, are Yoshihiro Yasuda (Second Tokyo Bar Association), Sadato Goto and Tadatoshi Shimomura (Osaka Bar Association).

What advice would you give to aspiring lawyers who would like to work on capital cases in the future?

Every person has fundamental human rights. Death row inmates are a minority, but because they are a minority, their human rights must be protected. That is the mission and work of lawyers.

Changing the death penalty and protecting the human rights of those on death row will make Japan a better country.

Together we can change history. That is why you should become a lawyer.

This is the first part of a two-part interview with Takeshi. The second part is available here, covering Japan’s death penalty laws, conditions for prisoners on death row, public discourse on the death penalty in Japan, barriers to abolition, and the recent acquittal of the world’s longest-serving death row inmate.

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Takeshi Kaneko is a lawyer based in Japan, whose work has included litigation to reform Japan’s death penalty system. He has held the positions of Chairman of the Human Rights Protection Committee of the Japan Federation of Bar Associations, Chairman of the Osaka Bar Association, and Vice-President of the Japan Federation of Bar Associations.