Resolution Calling for the Cessation of Using Handcuffs and Waist Ropes on the Suspect and the Accused While Entering and Leaving the Courtroom in Criminal Trials
A detained suspect or accused (hereafter referred to as "criminal defendants") wears handcuffs and waist ropes when entering the courtroom in criminal trials. If you see a criminal defendant in such a state, what would you think about it? If you were one of such criminal defendants, how would you feel about it?
According to a survey conducted by the Kinki Federation of Bar Associations in 2017, more than 60% of the criminal defendants surveyed answered that they felt that they were seen as an offender, while more than half of those surveyed answered that they felt embarrassed. On the other hand, close to a quarter of the observers surveyed answered that their impression upon seeing criminal defendants wearing handcuffs and waist ropes was that the criminal defendants were being punished, or that the criminal defendants deserve it or have no other choice as they had committed a crime.
The results of the survey show that using handcuffs and waist ropes on criminal defendants in the courtroom not only degrades the self-respect of the criminal defendants and causes them to feel embarrassed but also gives people in the courtroom the impression that the criminal defendants are guilty. This is a serious human rights violation which infringes on the personal rights of criminal defendants and their right to be presumed innocent until proven guilty.
Nevertheless, the usage of handcuffs and waist ropes on criminal defendants has become an everyday sight even for us attorneys unfortunately. This everyday sight was called into a question through a case, which occurred in Osaka in 2014, when an accused refused to enter and leave the courtroom with handcuffs and waist ropes on, on account of protecting his self-respect and his right to be presumed innocent until proven guilty. In this case, the accused’s attorney requested to undo the handcuffs and waist ropes on the accused before entering the courtroom and redo them after leaving the courtroom. However, the court rejected such request and punished the attorney by a non-criminal fine of thirty thousand yen (30,000円) as a result of the attorney himself refusing to enter the courtroom.
This case served as one of the motivators for the Japan Federation of Bar Associations ("JFBA") to launch a project team to address issues regarding the usage of handcuffs and waist ropes on criminal defendants in criminal trials in 2018. The JFBA published its"Opinion Calling for the Cessation of Using Handcuffs and Waist Ropes on the Suspect or the Accused While Entering and Leaving the Courtroom in Criminal Trials" dated October 15, 2019.
In the meantime, the Osaka District Court pointed out the nature of human rights violations in using handcuffs and waist ropes on criminal defendants entering and leaving the courtroom in criminal trials in its judgment handed down on May 27, 2019. Following the judgment, some operational improvements were made for cases where the criminal defendant’s attorney requests that handcuffs and waist ropes not be used on the criminal defendant. In such cases, the undoing and redoing of handcuffs and waist ropes on the criminal defendant was performed by hiding the criminal defendant behind a room partition. However, it has currently become a norm that such an arrangement is no longer being made even with a request from the criminal defendant’s attorney.
Furthermore, in a case seeking compensation by some detained criminal defendants against the government over the unconstitutionality and illegality of being forced to enter and leave the courtroom while wearing handcuffs and waist ropes, the Supreme Court’s Second Petty Bench made the decision to dismiss/not accept the final appeal on May 24, 2024 without the lower courts ever finding such practice unconstitutional or illegal, or allowing the plaintiffs’ claim for damages.
However, using handcuffs and waist ropes on criminal defendants while entering and leaving the courtroom in criminal trials clearly violates the Constitution and international human rights law.
Namely, such practice violates: (a) Article 13 of the Constitution guaranteeing the protection of individuals’ dignity and personal rights; (b) Article 7 and Article 10, paragraph 1 of the International Covenant on Civil and Political Rights ("ICCPR") as well as Article 16, paragraph 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment prohibiting any treatment that degrades human dignity; and (c) Article 31 of the Constitution as well as Article 10, paragraph 2(a) and Article 14, paragraph 2 of the ICCPR providing the right to be presumed innocent until proven guilty.
In addition, such practice also violates Articles 31 through 37 of the Constitution as well as Article 14, paragraph 1 of the ICCPR as it infringes on the right of criminal defendants to a defense and to stand trial as an equal party and have a fair and impartial trial.
Moreover, such practice also violates the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules).
Judges shall be independent in the exercise of their conscience and shall be bound only by the Constitution and the laws (Article 76, paragraph 3 of the Constitution), and they have the obligation to respect and uphold the Constitution (Article 99 of the Constitution) in the first place. They must therefore properly execute their authority to maintain order in the courtroom to ensure that the fundamental human rights of criminal defendants as listed above are not violated. However, judges indiscriminately and uniformly allow the use of handcuffs or waist ropes on criminal defendants entering and leaving the courtroom, thereby violating the fundamental human rights of criminal defendants.
For these reasons, the JFBA urges judges and the government to take the following measures as soon as possible to guarantee the maximum protection of the fundamental human rights of criminal defendants as listed above and to ensure that criminal defendants do not enter or leave the courtroom in a manner that suggests that they are dangerous criminals (see General Comment No. 32 issued by the United Nations Human Rights Committee).
1. Judges shall respect the fundamental human rights of criminal defendants and properly execute their authority to maintain order in the courtroom, and immediately stop allowing the indiscriminate and uniform use of handcuffs or waist ropes on criminal defendants entering and leaving the courtroom. Furthermore, judges shall not allow the use of handcuffs and waist ropes except in cases where it is necessary and unavoidable, and exceptions provided in the proviso of Article 287, paragraph 1 of the Code of Criminal Procedure apply.
2. The government shall add a second paragraph to Article 287 of the Code of Criminal Procedure which clearly states that the principle prohibiting the use of physical restraint devices during a criminal trial, as set forth in Article 287, paragraph 1 of the Code of Criminal Procedure, applies to criminal defendants entering and leaving the courtroom to ensure that the application of the same principle is guaranteed to such criminal defendants.
3. The government and courts shall take measures to improve court facilities that will enable criminal defendants to enter and leave the courtroom without handcuffs and waist ropes on (for example, establishing a waiting room or space to allow removing and putting on such devices on criminal defendants before entering or after leaving the courtroom) and improve the physical and human resources to prevent violence and escape.
The JFBA wishes to express its deep regret that we as attorneys and bar associations were not sufficiently aware of the seriousness of the issues regarding the use of handcuffs and waist ropes on criminal defendants As mentioned above, we call for the proper execution of judges’ authority to maintain order in the courtroom, the introduction of new legislation, and the improvement of physical and human resources to ensure that handcuffs and waist ropes will not be used on criminal defendants while entering and leaving the courtroom. We are determined to continue to engage in activities as attorneys to contribute to guaranteeing the protection of the human rights of criminal defendants including addressing the issues regarding the use of handcuffs and waist ropes in the courtroom.
We resolve as above.
October 4, 2024
The Japan Federation of Bar Associations