Comparative Human Rights Law

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Carolina Academic Press Comparative Law Series

Michael Louis CorradoSeries Editor

Comparative Constitutional ReviewCases and Materials

Michael Louis Corrado

Comparative Law: An IntroductionVivian Grosswald Curran

Comparative Consumer BankruptcyJason Kilborn

Comparative Law of ContractsAlain Levasseur

Comparative Criminal Procedure, Second EditionStephen C. Thaman

Comparative Human Rights Law, Vol. 1: Expression, Association, Religion

Arthur Mark Weisburd

Comparative Human Rights Law, Vol. 2: Detention, Prosecution, Capital Punishment

Arthur Mark Weisburd

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Comparative Human Rights Law

Detention, Prosecution, Capital Punishment

Volume 2

A. Mark WeisburdMartha M. Brandis Professor of Law

University of North Carolina at Chapel Hill

Carolina Academic PressDurham, North Carolina

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Copyright © 2008A. Mark WeisburdAll Rights Reserved

Library of Congress Cataloging-in-Publication Data

Weisburd, A. Mark (Arthur Mark), 1948-Comparative human rights law : detention, prosecution, capital punishment

/ by Arthur Mark Weisburd.p. cm.

Includes bibliographical references and index.ISBN 13: 978-1-59460-441-6 ISBN 10: 1-59460-441-X (alk. paper)

1. Criminal procedure. 2. Detention of persons. 3. Human rights. I. Title.K5401.W45 2008341.4'8--dc22

2007049902

Carolina Academic Press700 Kent Street

Durham, North Carolina 27701Telephone (919) 489-7486

Fax (919) 493-5668www.cap-press.com

Printed in the United States of America

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To My Wife

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Contents

Table of Authorities xi

Preface xxiThe Aim of This Book xxiThe Book’s Structure xxiiUsage Conventions xxivTranslations xxv

Acknowledgments xxvii

Chapter One Non-United States Legal Systems 3A. Introduction 3B. Japan 3C. The European Human Rights System 7

1. The Council of Europe 72. The European Court of Human Rights 8

Editor’s Comment: Compliance with the Court’s Judgments 13

D. India 14

Chapter Two Habeas Corpus 17A. Japan 17

1. [Denial of an Application for a Writ of Habeas Corpus] 17B. The European Human Rights System 18

1. Cases of De Wilde, Ooms and Versyp (“Vagrancy”) v.Belgium, European Court of Human Rights 18

2. Case of Weeks v. the United Kingdom 24C. India 29

1. General Observations 292. A.K. Gopalan v. State of Madras; Union of India,

Intervener 30D. The United States 42

1. Immigration and Naturalization Service v. Enrico St. Cyr 42

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Chapter Three Criminal Procedure 51A. Japan 51

1. Right to Counsel 51a. Judgment on the Right of the Suspect in Criminal

Procedure to Communicate with the Defence Counsel 512. Limitations on Interrogation Methods 56

a. Decision Concerning the Case in which the Interrogation over Long Hours of the Suspect Was Ruled Not to Have Transgressed Permissible Limits of Non-Compulsory Investigation 56

b. Decision upon the Case Concerning:(1) Limits on the Use of Physical Force in Voluntary Investigations; (2) Use of Physical Force in Voluntary Investigations Deemed to Be Permissible 60

B. The European Human Rights System 641. Drawing Inferences from Defendant’s Silence;

Questioning Defendant without Access to an Attorney 64a. In the Case of John Murray v. the United Kingdom 64

2. Right to Confront Witnesses 75a. Van Mechelen and Others v. the Netherlands 75

C. India 831. Interrogation: Right to Confront Witnesses;

Right to Silence 83a. Kartar Singh v. State of Punjab 83

2. Right to Counsel 103a. Hussainara Khatoon and Others (IV) v.

Home Secretary, State of Bihar, Patna 103D. The United States 108

1. Self-Incrimination; Right to Counsel; Police Interrogation 108a. Miranda v. State of Arizona 108

2. Right to Confront Witnesses 128a. Michael D. Crawford, Petitioner v. Washington 128

Chapter Four Capital Punishment 147A. Japan 147

1. Judgment upon the Case Concerning That an Appeals Court Judgment That Maintained the Sentence of Life Imprisonment in the First Instance Court Judgment Was Quashed Because the Sentence Period Was Considered Inappropriate 147

B. The European Human Rights System 152Note on the Death Penalty in Europe 152

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C. India 1541. Bachan Singh v. State of Punjab 154

D. The United States 1821. Gregg v. Georgia 182

Appendix Relevant Provisions of Applicable Legal Instruments 197A. Japan 197

1. Constituion 1972. Statutes 198

a. Code of Criminal Procedure 198b. Habeas Corpus Law 199c. Habeas Corpus Rules 199d. Penal Code 200

B. European Human Rights System 2001. European Convention on Human Rights and

Fundamental Freedoms, November 4, 1950 2002. Protocol No. 6 to the Convention for the Protection of

Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty,April 28, 1983 203

C. India 2041. Constitution 2042. Statutes 208

a. Code of Criminal Procedure 208b. Evidence Act, 1872 210c. Penal Code 211d. Preventive Detention Act, 1950 212e. Terrorists and Disruptive Activities

(Prevention) Act, 1987 215D. The United States 218

1. Constitution of the United States 2182. United States Code 219

Bibliography 223

Index 225

CONTENTS ix

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xi

Table of Authorities

Japan

Cases

Decision Concerning the Admissibility as Evidence of the On-the-Spot Inspec-tion Report Recording the Scenes of Victimization and Perpetration Re-produced by the Victim or the Suspect as Instructed by the InvestigatingOfficers, in Cases Where It May Be Understood That the Existence of theCriminal Fact So Reproduced Is Essentially the Fact Required to Be Estab-lished in Order to Prove the Charge, 55

Decision concerning the case in which the interrogation over long hours ofthe suspect was ruled not to have transgressed permissible limits of non-compulsory investigation, 56

Decision of August 1, 1951, 63Decision upon the case concerning: (1) limits on the use of physical force in

voluntary investigations; (2) use of physical force in voluntary investiga-tions deemed to be permissible, 60

Judgment on the right of the suspect in criminal procedure to communicatewith the defence counsel, 51

Judgment upon the case concerning that an appeals court judgment thatmaintained the sentence of life imprisonment in the first instance courtjudgment was quashed because the sentence period was considered inap-propriate, 147

Judgment Upon the Case Concerning the Relationship Between Evidential Ca-pacity of a Confession Provoked by a Fraudulent Means and Article 38(2)of the Constitution of Japan, 63

[Denial of an Application for a Writ of Habeas Corpus], 17

Constitution

Article 9, 4Article 33, 18Article 34, 18, 51–52, 54

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xii TABLE OF AUTHORITIES

Article 37, 51–52Article 38, 53–55, 63Article 41, 5Article 58, 7Article 76, 5– 6Article 77, 5, 7Article 81, 5Article 94, 7

Statutes

Code of Criminal Procedure

Article 39, 51–55Article 197, 56– 63Article 198, 53, 56– 63

Habeas Corpus Law

Article 2, 17

Habeas Corpus Rules

Article 4, 17

European Human Rights System

Cases

Case of Weeks v. the United Kingdom, 24Cases of De Wilde, Ooms and Versyp, 18In the case of John Murray v. the United Kingdom, 64Van Mechelen and Others v. the Netherlands, 75

European Convention on Human Rights and Fundamental Freedoms

Article 5, 20–29Article 6, 64–83Article 8, 80Protocol 1, 9Protocol 2, 9Protocol 4, 9Protocol 6, 9, 152–153Protocol 7, 9Protocol 9, 9Protocol 11, 8–10, 152Protocol 12, 9Protocol 13, 9

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TABLE OF AUTHORITIES xiii

Official Reports

Council of Europe, Implementation of judgments of the European Court ofHuman Rights: Court Judgments Pending Before the Committee of Ministersfor Control of Execution for More than Five Years, or Otherwise Raising Im-portant Issues, AS/Jur (2005) 32, 9 June 2005, 13

Council of Europe, Implementation of judgments of the European Court ofHuman Rights: Supplementary Introductory Memorandum (Revised), AS/Jur(2005) 55, 20 December 2005, 13

India

Cases

A.K. Gopalan v. State of Madras; Union of India, Intervener, 30, 158–159A. K. Roy, Etc v. Union of India and Another, 41Bachan Singh v. State of Punjab, 154Bhuboni Sahu v. King, 87Dr. Ram Krishan Bhardwaj v. State of Delhi and Others, 41Dr. Ram Manohar Lohia’s case, 159Ebrahim Vazir Mavat v. State of Bombay and Others (With Connected Ap-

peals), 29Fatehchand Himmatlal v. State of Maharashtra, 158Gunupati Keshavram Reddy v. Nafisul Hasan and The State of Uttar Pradesh,

29Gurbachan Singh v. State of Bombay, 89Hari Charan Kurmi and Jogia Hajam v. State of Bihar, 87Hira Nath Mishra v. Principal, Rajendra Medical College, Ranchi, 100Hussainara Khatoon and Others (IV) v. Home Secretary, State of Bihar, Patna,

103Jagmohan Singh v. State of Uttar Pradesh, 154–156, 161, 162, 163, 172, 174,

175, 176, 177, 178Jayanarayan Sukul v. State of West Bengal, 41Kanu Sanyal v. District Magistrate, Darjeeijng and Others, 29Kartar Singh v. State of Punjab, 83Maneka Gandhi v. Union of India, 42, 160, 170 M.H. Hoskot v. State of Maharahstra, 104Machindar Shivaji Mahar v. The King, 39Nandini Satpathy v. Dani (P.L.) and Another, 107Olga Tellis v. Bombay Municipal Corpn, 88Rajendra Prasad v. State of U.P., 154–156, 171, 178, 180R. C. Cooper v. Union of India, 159Sheela Barse v. State of Maharashtra, 106

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xiv TABLE OF AUTHORITIES

State of Bombay v. Atma Ram Sridhar Viadya, 41State of Bombay v. R. M. D. Chamarbaugwala, 158State of Maharashtra v. Sidhi, 173Vijay Narain Singh v. Bihar, 41

Constitution

Article 13, 30Article 14, 87, 93, 96, 103, 104–106, 155, 170, 172, 175–177, 180 Article 19, 30, 31, 155, 157–162, 169–170, 172, 177, 180Article 20, 31, 38, 90–91, 107Article 21, 30, 31–32, 38, 41– 42, 87, 91, 92, 95–96, 104–106, 155, 158,

169–170, 172, 176–177, 180Article 22, 30, 29– 41, 91Article 32, 30–31, 156Article 39-A, 105–106Article 72, 170Article 134, 171Article 136, 174Article 145, 15Article 161, 170Article 246, 29–30, 34Seventh Schedule, List I, Item 9, 29, 31–32, 37Seventh Schedule, List III, Item 1, 170Seventh Schedule, List III, Item 2, 170Seventh Schedule, List III, Item 3, 29, 31–32, 37

Statutes

Code of Criminal Procedure

Section 162, 87, 91Section 164, 87, 91–92, 96–97Section 235, 169, 172, 176, 178–181Section 354, 154–155, 157, 162, 169, 171–172, 175–176, 178–181Section 366, 173Section 367, 173Section 368, 173Section 369, 173Section 370, 173Section 379, 174Section 432, 173Section 433, 173Section 433-A, 173

Evidence Act

Section 3, 87

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TABLE OF AUTHORITIES xv

Section 24, 91, 93Section 25, 87, 91Section 26, 87, 91Section 27, 91Section 30, 87, 91, 94, 96

Penal Code

Section 299, 160Section 300, 160Section 302, 154–155, 157–162, 169–171, 174–176, 180, 181Section 303, 174

Preventive Detention Act, 1950

Section 3, 30, 34–35, 37–38Section 7, 35, 39Section 9, 35Section 10, 36Section 11, 37Section 12, 35, 37– 40Section 13, 38Section 14, 39– 40

Terrorists and Disruptive Activities (Prevention) Act, 1987

Section 3, 96Section 15, 86–90, 93, 96–97, 103Section 16, 98–101, 103Section 20, 97Section 21, 87–88, 90, 95–96

Government Reports

Law Commission, 35th Report, 1967, 161, 162, 164–165, 169National Police Commission, 4th Report, 1980, 93

United States

Cases—Federal

Supreme Court

Blackburn v. State of Alabama, 109Bourjaily v. United States, 138Bram v. United States, 113Brown v. United States, 128California v. Stewart, 111, 122, 126

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xvi TABLE OF AUTHORITIES

Carmell v. Texas, 133Carnley v. Cochran, 117Chambers v. State of Florida, 112, 128Coy v. Iowa, 131Crawford v. Washington, 128Cruz v. New York, 139Dutton v. Evans, 136Escobedo v. State of Illinois, 114, 115, 119, 120, 123, 126, 127Fare v. Michael C, 128Felker v. Turpin, 45, 49Frazier v. Cupp, 128Furman v. Georgia, 167, 174, 177, 179, 185–196Gideon v. Wainwright, 105, 118, 127Gore v. United States, 187Gregg v. Georgia, 177, 178, 182Griffin v. California, 127Hamdi v. Rumsfeld, 49Haynes v. State of Washington, 111Heikkila v. Barber, 45, 46, 48Immigration and Naturalization Service v. Enrico St. Cyr, 42, 49Jay v. Boyd, 47Argersinger v. Hamlin, 105Lee v. Illinois, 139Lilly v. Virginia, 138, 142Lockett v. Ohio, 127Lynumn v. State of Illinois, 110Malloy v. Hogan, 114Mapp v. Ohio, 115Mattox v. United States, 137, 138Miranda v. State of Arizona, 108, 129Ohio v. Roberts, 130, 131, 138–144Parker v. Randolph, 139Pointer v. Texas, 131Rasul v. Bush, 49Reynolds v. United States, 141Ring v. Arizona, 144Robinson v. California, 186Townsend v. Sain, 110Trop v. Dulles, 186United States ex rel. Accardi v. Shaughnessy, 47United States v. Robinson, 127Vignera v. New York, 111, 124Weems v. United States, 185

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TABLE OF AUTHORITIES xvii

Westover v. United States, 111, 114, 125White v. Illinois, 136, 139, 140Williams v. New York, 189Ziang Sung Wan v. United States, 113

United States Courts of Appeals

United States v. Grunewald, 112United States v. Photogrammetric Data Servs., Inc., 141

Cases—State

California

People v. Anderson, 189

Colorado

People v. Farrell, 141Stevens v. People, 142

Georgia

Coley v. State, 192, 195Moore v. State, 195

Massachusetts

Commonwealth v. O’Neal, 189

North Carolina

State v. Webb, 135

South Carolina

State v. Campbell, 135, 137

Virginia

Nowlin v. Commonwealth, 142

Wisconsin

State v. Bintz, 142

Constitution

Article I, § 9, cl 2, 45Fifth Amendment, 90, 108, 111, 112–121, 123, 125, 127, 188Sixth Amendment, 127–128, 131, 134–144Seventh Amendment, 144Eighth Amendment, 167, 174, 182, 183, 185–189, 191, 193Fourteenth Amendment, 127, 167, 182, 183, 185, 187, 188, 191, 193

Statutes—Federal

Title 10, United States Code

Section 801, 50Section 948a, 50

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xviii TABLE OF AUTHORITIES

Title 28, United States Code

Section 2241, 42, 44– 49, 50Section 2254, 50

Detainee Treatment Act of 2005

Section 1005, 50

Military Commissions Act of 2006

Section 3, 50Section 7, 50Section 10, 50

Statutes—State

Georgia

§ 27-2534.1, 194

Miscellaneous

Cases—United Kingdom

Fenwick’s Case, 133King v. Paine, 133Lord Morley’s Case, 133Queen v. Beeston, 134Thompson v. Trevanion, 139

Statutes—United Kingdom

13 Charles 2, c. 1, § 5 (1661), 1335 George 3, c. 12, § 57 (1765), 1341 & 2 Philip & Mary, c. 13 (1554), 132, 1332 & 3 Philip & Mary, c. 10 (1555), 132, 13311 & 12 Victoria, c. 42, § 17 (1848), 134

Books

Blackstone, William, Commentaries on the Laws of England (1768), 132, 140Brett, Peter, An Enquiry into Criminal Guilt (1963 Edition), 166Chhabra, Kirpal Singh, Quantum of Punishment in Criminal Law in India, 165Dean, Meryll, Japanese Legal System (Second Edition), 3Douglas, David C. (ed.), English Historical Documents (1955), 134Elliot, Jonathan, The debates of the several state conventions on the adoption of

the federal Constitution, as recommended by the general convention atPhiladelphia, in 1787 (2d ed. 1863), 134

Hale, Sir Matthew, History and Analysis of the Common Law of England (1713),140–141

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TABLE OF AUTHORITIES xix

________________, Pleas of the Crown (1736), 132, 133, 137Hawkins, William, Pleas of the Crown (T. Leach 6th ed. 1787), 133Holdsworth, Sir William, History of English Law (3d ed. 1944), 132Howell, Thomas Bayly, A Complete Collection of State Trials and Proceedings:

from the Earliest Period to the Year 1783 and Continued from the Year 1783to the Present Time (1816–1828), 132, 133, 141

Jardine, David, Criminal Trials (1832), 132, 137Langbein, John H., Prosecuting Crime in the Renaissance (1974), 132, 137Oppler, Alfred C., Legal Reform in Occupied Japan: A Participant Looks Back

(1976), 5Perry, Richard L. and John C. Cooper (eds.), Sources of Our Liberties (1959),

134Schwartz, Bernard, The Bill of Rights: A Documentary History (1971), 134, 135Stephen, Sir James. F., History of the Criminal Law of England (1883), 132, 137Wigmore on Evidence (2d ed. 1923), 131, 133, 136, 138Wigmore on Evidence (McNaughton rev. 1961), 112Wroth, L. Kinvin and Hiller B. Zobel (eds.), Legal Papers of John Adams

(1965), 134

Articles and Book Chapters

Beer, Lawrence W., “Constitutional Revolution in Japanese Law, Society andPolitics,” 16 Modern Asian Studies 33 (1982), 3

Herrmann, Frank R., S.J. and Brownlow Speer, “Facing the Accuser: Ancientand Medieval Precursors of the Confrontation Clause,” 34 Virginia Journalof International Law 481 (1994), 131

Kirst, Roger W., “Appellate Court Answers to the Confrontation Questions inLilly v. Virginia,” 53 Syracuse Law Review 87 (2003), 142

Okudaira, Y., “Forty Years of the Constitution and Its Various Influences:Japanese, American and European,” at Japanese Constituitonal Law 20(Percy R. Luney and Kazuyuki Takahashi eds. 1976), 5

Pollitt, Daniel H., “The Right of Confrontation: Its History and ModernDress,” 8 Journal of Public Law 381 (1959), 134

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Preface

The Aim of This Book

This book is intended to introduce American law students to variations inapproaches to human rights in several of the more important legal systems ofthe world. The key word in the previous sentence is “introduce.” The subject isso vast, and the range of relevant law so great, that a comprehensive discussionof the subject would require many volumes. Nonetheless, it is possible even ina relatively brief work to provide a sense of the ways different societies providelegal protections for their members.

This work is intended to permit comparisons, but its brevity required focusingits coverage. Therefore, the cases in this work are drawn from only four legal sys-tems; the hope is that the possibility of gaining some overall sense of the workingsof each of these systems compensates for the narrowness of this approach. Selec-tion was dictated by three factors. First, there seemed to be no point in consider-ing cases from countries where the courts are either ignored or lacking in inde-pendence. Second, allowing for the first consideration, it was crucial to examine avariety of legal systems. Finally, it was necessary to focus on systems from whichcase reports were available in English. Accordingly, the legal systems addressed inthis work are the Japanese system, showing the approach of a developed, non-Western country; the European human rights system, illustrating rights thinkingin a system sharing with the United States many values regarding the relationshipbetween individuals and society; the Indian system, interesting because it reflectsthe work of an active and fairly effective court system operating in a developing,non-Western country; and, finally, the United States’ system, with which studentsare likely to be most familiar and which can provide a benchmark.

Again, to facilitate comparison, only a limited number of rights are ad-dressed, even taking into account the companion volume to this one. All areso-called first generation rights, addressing civil and political protections; all

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were chosen from among those that seem so basic as to be essential to any sys-tem of rights protection.

This volume addresses the right to the writ of habeas corpus, various rightsrelating to criminal procedure, and the death penalty. Habeas corpus is part ofthe foundation of government by law. So long as an individual can force gov-ernment to demonstrate a legal basis for confinement, arbitrary detention canbe controlled. The procedures governments must follow in order to imposecriminal penalties on individuals are also fundamental protections of freedom.The range of issues which could be addressed under this heading is vast. Thediscussion in this volume has focused on three issues which bear heavily onprotection of individuals: the nature of the right to counsel in a given system,the extent of the right against self-incrimination, and—what is essentially theobverse of the foregoing issue—the limitations the police are obliged to ob-serve in interrogating criminal suspects. Finally, this volume addresses the dif-ferent attitudes toward the death penalty taken in the different legal systemsdiscussed in this volume. Given the intensity of opinions on this subject, itseemed useful to provide an indication of the range of views regarding capitalpunishment taken in different parts of the world.

The first chapter of this book provides introductions to the legal system ofJapan, to the European human rights system, and to India’s legal system. Thesebrief discussions are aimed at explaining to students the structure of each ofthose systems, and the importance of judicial opinions in them. The followingchapters address the rights listed above.

It should be noted that, while all cases from the European Court of HumanRights and the Supreme Courts of India and the United States are availablefrom English-language data bases, decisions of the Supreme Court of Japanare available in English only in a limited selection on that Court’s website andalso from translations made for various purposes and published, the casesbeing selected for translation according to the translator’s criteria. Since theeditor does not read Japanese, it is possible that significant Japanese cases donot appear in this work; nonetheless, the discussion is believed to be reason-ably complete.

The Book’s Structure

This book includes a relatively small number of lightly-edited—and there-fore, in many cases, lengthy—excerpts from judicial decisions, a limited num-ber of notes providing information regarding particular legal systems’ treat-ment of issues not adequately addressed in any decision, and an appendix of

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legal instruments relevant to decisions making up the book. It therefore differsfrom many casebooks in its lack of textual material, its omission of questionsintended to provoke thought, and in the necessarily limited scope of the issuesraised by the decisions set out. It may be useful to explain why the book wasstructured in this way.

The series of which this book is a part aims at providing relatively shortbooks which may be used to focus discussion in comparative law classes onparticular topics. Since books in this series cannot be lengthy, editors do nothave the luxury of resolving doubts by including material not deemed to be es-sential. That fact, in turn, forces editors to decide what exactly is essential inthe context of particular works.

The subject of this book is comparative human rights, so it is obviously es-sential to present cases addressing a range of rights from a range of differentlegal systems. While, as noted above, the length of the book limits both thenumber of rights and the number of legal systems which may be addressed,one possible way of dealing with this circumstance would have been to includemuch shorter excerpts from a greater number of cases, as well as explanatorytextual material. That approach, however, would have worked against whatseemed to be a second essential element of the book.

That element relates to the purposes of the study of comparative law. Whileone such purpose is of course to convey to students the differences in substan-tive law between systems, there are others which are also important. One ofthose additional purposes is to permit students to get a sense of the styles oflegal reasoning used in different legal systems. What sorts of arguments are le-gitimate? What counts as a conclusive argument? Yet another purpose is to per-mit students to reflect upon the unarticulated assumptions underlying eachlegal system—ideas about how the world works seen as so fundamental ineach system that they do not require explanation, or indeed, as so very basicthat it would never occur to judges that there was any other way to think aboutlegal issues. These latter aims cannot be achieved if students are provided onlywith snippets of decisions setting out rules of law, but omitting either a de-scription of the facts different courts saw as crucial to their decisions or theway those courts’ own explanation of their reasoning about the facts. Whiletextual materials and leading questions following cases might provide informa-tion to students on those subjects, that approach would seem to defeat the pur-pose of a casebook—that is, to force students themselves to read cases care-fully in order to understand all that each case can teach. But if a short book isto present excerpts from cases long enough to permit students to see how dif-ferent courts reason about difficult human rights issues, and to include as wellthe language of the legal instruments with which those courts must work, itcannot include many cases. And, while this means that coverage cannot be

PREFACE xxiii

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very great, that is inevitable anyway if human rights issues from a number ofcountries are to be addressed in a work of approximately 200 pages. (This isclear if one considers how long a casebook would have to be to comprehen-sively address all matters relevant only to the Bill of Rights and ReconstructionAmendments in the United States Constitution.) When all of these factors aretaken into account, what has resulted is this casebook. It is hoped that this rea-soning makes sense.

Usage Conventions

To permit readers to avoid having to adjust to different arrangements of ma-terial in different cases, it seemed helpful to make some rules of usage. They are:

First, where the original documents reproduced here employed Britishrather than American spelling, the spelling has not been altered.

Second, bracketed material has been inserted by the editor, generally tosummarize important but lengthy portions of a document, occasionally to addexplanatory material too important to be left to footnotes.

Third, regarding footnotes, please note that most of those in the documentsreproduced in this work have been omitted. Those footnotes which have beenretained are numbered consecutively in each document, without regard to theiroriginal numbering. Footnotes by the editor are indicated by lower case letters.

Fourth, please note that case naming conventions and citation formats nec-essarily vary from jurisdiction to jurisdiction. Japanese cases are, when possible,named according to the label attached to them on the website of the SupremeCourt of Japan, and are cited by case number, date of decision and reporter inwhich they appeared (except when the website does not name that reporter).Cases not taken from the Supreme Court’s website are named and cited as theywere in the source from which they were taken. Cases from the European Courtof Human Rights are cited to the official reports of that court; earlier decisionsare therefore cited by their number within Series A of that court’s publicationsand by date of decisions; later cases, appearing in the volumes entitled EuropeanHuman Rights Cases, are cited to those volumes, which are abbreviatedE.C.H.R. Cases from the Supreme Court of India are, when possible, cited tothe Supreme Court Reports, abbreviated S.C.R., and to the Supreme Court sec-tions of the All-India Reporter, abbreviated A.I.R.(S.C.). Occasionally, however,Indian citations are to the All-India Reporter Supreme Court Weekly, abbrevi-ated A.I.R.(S.C.W.), or the Supreme Court Journal, abbreviated S.C.J. There is

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also one citation to the Federal Court Reports, abbreviated F.C.R., reporting de-cisions of the highest court of pre-independence India.

It was necessary to decide how to deal with the texts of legal instruments dis-cussed in the book. The basic approach taken was to reproduce only the sec-tions/articles of the various Constitutions/statutes/treaties relevant to the casesdecided, instead of attempting to present the entirety of each instrument; wherecases refer to an entire instrument but not to any of its component sections/arti-cles, e.g. “The ABC Statute of 2006” instead of “Section 28 of the ABC Statute of2006,” nothing is reproduced. Where a case cites a section/article itself havinglittle to do with human rights and the thrust of which is clear from the discus-sion, that section/article is not reproduced; such sections/articles are markedwith an asterisk(*) the first time they are cited in each case or other discussion,but not especially designated otherwise. Finally, where a section or article is notreproduced in the appendix, but is quoted verbatim in the case or other discus-sion which refers to it, that section or article is marked with two asterisks (**)the first time it appears, and not otherwise marked. All other sections/articlesmentioned in the discussions which follow appear in the Appendix.

Translations

The translators of Japanese cases taken from the website of the JapaneseSupreme Court are indicated to the extent that information is provided on thewebsite. The translators of Japanese cases taken from copyrighted works are in-dicated to the extent that information is provided in those works. Some of theseparate opinions from European Court of Human Rights decisions are de-scribed on that court’s website as translations, but that website does not pro-vide the name of the translator; since the translations appear on that website,however, they are presumably official.

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Acknowledgments

The Editor wishes to acknowledge, with gratitude:

Cavendish Publishing Limited, for permission to reprint material fromMeryll Dean, Japanese Legal System, Second Edition, 2002.

The University of Washington Press, for permission to reprint material fromJohn M. Maki, Court and Constitution in Japan: Selected Supreme Court Deci-sions, 1948–1960, with translations by Ikeda Masaaki, David C.S. Sissons, andKurt Steiner, 1964.

The University of North Carolina Law Foundation, for its support of thisproject.

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