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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal

7 September 2007
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UA-273-2007: JAPAN: A 81 year-old person waiting for the execution of capital punishment for the past 43 years

JAPAN: False accusation; forced confession; miscarriage of justice; right to fair trial; right to life
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information regarding the case of Mr. Masaru Okunishi, aged 81 years who is facing capital punishment and waiting for the Supreme Court's decision for execution. Okunishi is accused of having poisoned to death five women in his village in 1961. Okunishi who was acquitted at the first instance was later sentenced to death in appeal allegedly on a set of false forensic evidence. There were a series of appeals in which the finding of guilt was overturned and confirmed. As of now Okunishi is waiting the execution of his sentence after the order staying his execution and retrial was reversed by the Nagoya High Court.

CASE DETAILS:

Mr. Masaru Okunishi is from Kuzuo, a remote mountain village in Nabari city of Mie prefecture. It is alleged that on March 28, 1961 Okunishi poisoned to death five women by mixing pesticide in their wine. Kuzuo being a remote village, the authorities suspected that the poisoning was deliberate and that one of the villagers is responsible for the incident. Okunishi, a farmer, who had carried the wine from the house of the local community chief to the community centre, was charged with the crime. Okunishi was investigated and had to endure over three days of prolonged and severe interrogation.

It is alleged that Okunishi being unable to endure the interrogation any further, allegedly confessed the crime on the night of April 2, 1961 and accordingly he was placed under arrest on April 3. Once Okunishi was arrested the villagers immediately turned against Okunishi. It is alleged that the villagers soon started spreading rumors against Okunishi suggesting his guilt and wanted Okunishi to be punished at the earliest.

There was no material evidence or eyewitness available to connect Okunishi and the crime alleged against him. The only piece of evidence was a wine stopper found at the community centre which allegedly had Okunishi's teeth marks. Several villagers who wished to solve the case immediately, made statements before the prosecutor and testified that there was no person who could approach the wine secretly before the incident other than Okunishi.

The case was tried at the Tsu District Court and the court acquitted Okunishi in 1964. The court while acquitting Okunishi, found that the witness statements were inconsistent and thus suspicious. The court also opined that the evidences were to be suspected as the result of 'extraordinary efforts' of the prosecutors to prove Okunishi's guilt. The confession statement allegedly made by Okunishi, according to the court, was unnatural, unreasonable and thus unreliable to prove the motive, preparations and further the feasibility of the crime. The teeth-marks allegedly found on the wine bottle stopper were held as not conclusive as the forensic test conducted on the stopper was not good enough to prove Okunishi's identity.

The prosecution appealed to the Nagoya High Court. The High Court, while holding that the circumstantial evidence was sufficient to prove Okunishi's guilt reversed the finding of the trial court and convicted Okunishi in 1969 and sentenced him for capital punishment. Holding Okunishi guilty for murder, the court said that given the circumstances of the case, Okunishi had enough opportunity to poison the wine. The court adopted a process of elimination of other possibilities and held that Okunishi is the only possible person who could have committed the crime.

The High Court relied upon the forensic evidence regarding the wine bottle stopper. New forensic evidences produced by three scientists allegedly proved the marks on the stopper as matching with Okunishi's dental structure [Black 3 Test]. Though the court relied upon the result of these tests to find Okunishi guilty of the offense, the result of the tests was later found to be false and even fabricated.

Okunishi appealed against the finding of the High Court to the Supreme Court. However, the Supreme Court dismissed the appeal and confirmed the sentence and punishment in 1972.

Starting from 1972 Okunishi, petitioned for retrial four times, which were all dismissed. In 1973 the Japan Federation of Bar Associations (JFBA) formed the 'Nabari Case Committee' to help Okunishi to find justice. When the Nagoya High Court dismissed Okunishi's fourth application for retrial the JFBA helped Okunishi to file a fifth application for retrial at the same court.

Professor Habu of Japan University, using the new forensic methods, proved "Black 3 Tests" to be unscientific and concluded that it was impossible to identify the mark on the wine stopper as that belonging to Okunishi. In 1993, the High Court dismissed the application on the ground that new evidence was not enough to vindicate Okunishi's guilt. The Supreme Court, while acknowledged that the value of "Black 3 Tests" had been rebutted to a great extent, yet dismissed Okunishi's the appeal in 1997.

In April 2005, in his seventh retrial challenge, Okunishi finally got an affirmative decision by the Nagoya Appeal Court. In his application, Okunishi submitted new evidences to be considered in the case. One of the new evidence was in fact clearly proving that the pesticide which was allegedly used by Okunishi to poison the wine was not the one that he had allegedly confessed to the investigators. Other important contentions were that it is impossible for Okunishi to open the bottle as allegedly confessed by him.

The court while deciding this appeal raised serious concerns upon the evidence relied upon to convict Okunishi. The court ordered a retrial and stayed the execution of the death sentence.
However, this order was reversed by a different panel of the same court in 2006. It is against this finding Okunishi has appealed at the Supreme Court, which is pending consideration of the court as of now.

BACKGROUND INFORMATION:

This case symbolically shows several problems of the Japanese criminal justice system.
Although Article 336 of the Japanese Cord of Criminal Procedure prescribes the principle of a presumption of innocence, the conviction rate in Japan is more than 99%. Even if a defendant is acquitted, the prosecutor has power to appeal on the claim of an error in the finding of the facts. Thus, while having had affirmative decision twice, Okunishi has been in death row more than 40 years.

Interrogation and pre-trial detention is a serious cause of wrongful conviction in Japan. A large number of the convictions on criminal trials are based on confessions. Once arrested, suspects are usually detained for 23 days under the control of police authority and obliged to face prolonged interrogation in a confined rooms. It is often alleged that unacceptable means, including psychological torture are widely used during interrogation.

The UN Human Rights Committee as well as the UN Committee against Torture expressed deep concern regarding the current practices of pretrial detention and interrogation in Japan and strongly recommended reforms including employing electronic monitoring systems during interrogation. However, no clear attempts to change the current practices have been employed so far in Japan.

The courts generally tend to believe evidences produced by the prosecution and often give more weight to such evidence to convict an accused, rather than approaching such evidence with caution. In particular, the courts tend to rely excessively on confessions.

The prosecution is often accused of non production of exculpatory evidence and under the current legal and practical frame work; it is difficult for a contesting defense to unearth such evidences. [Exculpatory evidence is the evidence favorable to the defendant in a criminal trial, which clears or tends to clear the defendant of guilt. In many countries such as the United States, if the police or prosecutor has found such evidence, he/she must disclose it to the defendant. The prosecution's failure to disclose exculpatory evidence can result in the dismissal of a case. The opposite is inculpatory evidence, which tends to prove a person's guilt.]

Such practice probably explains the 99% conviction rate in criminal cases in Japan. This is a matter of concern in Japan and also among the international community that is interested in the current legislative developments in Japan.

In Okunishi's case the exculpatory evidence was not disclosed in the court, which has apparently denied Okunishi a fair trial. This must be a serious concern for any court while dealing a criminal case where the result of the trial might end-up limiting a person's freedom or even sentencing a person for capital punishment.

SUGGESTED ACTION:
Please send a letter below to the relevant authorities in Japan requesting them to reopen this case.

To support this appeal, please click here:

Sample letter:

Dear __________,

JAPAN: Please reopen the case of Mr. Masaru Okunishi for retrial

Name of victim: Mr. Masaru Okunishi, aged 81 years, currently detained at Nagoya Detention Center [in death row], Japan
Place of incident: Kuzuo village, Nabari city, Mie Prefecture
Date of incident: March 28, 1961 and continuously thereon

I am writing to you to express my concern regarding the case of Mr. Masaru Okunishi, a death row inmate at Nagoya Detention Center. I am informed that at the age of 81, Okunishi is waiting execution of the capital punishment for which he was sentenced for in 1969. I am informed that he was found guilty of murder. I am also informed that a finding of the Nagoya High Court in 2005 ordering retrial and stay of execution was reversed by the same court in 2006. I am aware that charge against Okunishi is that he is alleged to have poisoned to death five women in his village by mixing pesticide in their wine.

I am informed that even though Okunishi was found not guilty by the trial court in 1964 was later found guilty and sentenced for capital punishment by the appeal court in 1969. I am informed that the evidence relied upon by the appeal court and pursued by the prosecution for sentencing Okunishi for capital punishment is tainted and is not worthy to be relied upon in a criminal case.

I am also informed that in this case, at least on two occasions the courts in Japan has raised serious doubts regarding the reliability of the evidence used against Okunishi for convicting him for the crime. I am also aware that the courts have questioned at two occasions the reliability of the forensic evidence produced against Okunishi and his allegedly forced confession.

I am informed that the confession statement allegedly made by Okunishi was extracted from him in extreme duress and that the statement is not compatible with the other circumstantial evidences in the case. I am also aware that the forensic evidence relied upon by the court to convict Okunishi is also allegedly tainted as being fabricated and false.

At this juncture I want to express my concern for the plight of the 81 year-old Mr. Okunishi who has endured decades of grueling experience of waiting in a death row in addition to have been sentenced for capital punishment on a set of evidence that is allegedly doubtful. I am aware that the Japan Federation of Bar Associations is pursuing Okunishi's case further to make sure that justice is finally done in Okunishi's case.

I am further informed that some of the current practices in criminal investigation and trial in Japan does not meet international standards. Issues like pretrial detention, investigation of criminal cases and presumption of innocence have scope for improvement. I am also aware that international human rights bodies like the UN Human Rights Committee and the UN Committee against Torture have expressed similar concerns and further recommended Japan to bring appropriate changes to its criminal justice systems, practices and laws.

Considering the fact that two courts and six judges have already found reasonable doubt on his conviction, and also considering his age, I wish the Supreme Court Japan would conduct a sincere judicial review in accordance with the principle of "presumption of innocence" and order re-trial of Okunishi's case.

I hope that my letter of concern will not be considered as interference in the process of law, but rather as an appeal for ensuring justice to Mr. Masaru Okunishi. I look forward to your prompt action into this matter.

Yours sincerely,

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PLEASE SEND YOUR LETTER TO:

1.  The Supreme Court of Japan
The Third Petty Bench
4-2, Hayabusa-cho
Chiyoda-ku
TOKYO 102-8651
JAPAN
Email: tosupremecourtjapan@gmail.com 

2. Mr. Jinen Nagase
Minister of Justice
1-1-1 Kasumigaseki
Chiyoda-ku, Tokyo 100-8977
JAPAN
Email: webmaster@moj.go.jp

3. Supreme Public Prosecutors Office
1-1-1 Kasumigaseki, Chiyoda-ku, Tokyo 100-0013
JAPAN
Fax: + 81 3 3592 7692
Email: saikoken@ppo.moj.go.jp

4. The Senate – Judicial Committee
1-7-1 Nagata-cho, Chiyoda-ku, Tokyo 100-8961
JAPAN
Email: webmaster@sangiin.go.jp

5. Mr. Leandro DESPOUY
The UN Special Rapporteur on the Independence of Judges and Lawyers
Room: 3-060
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9006

6. Prof. Manfred Nowak
Special Rapporteur on the Question of Torture
c/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Fax: +41 22 9179016

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrchk.org)