Japan

The case concerned appeals by Japan against the discharge of two requested persons whose extradition was sought for prosecution for an alleged robbery in Tokyo. The first-instance judge had found, in one case, that there was no prima facie case and, in both cases, that extradition would be incompatible with Articles 3, 4, 5 and 6 ECHR because of risks arising from Japanese detention conditions, interrogation practices, access to lawyers, compulsory prison labour and the absence of bail during the pre-indictment period. The Divisional Court held that there was sufficient admissible evidence to establish a prima facie case against the first requested person and that the detailed assurances provided by Japan in March 2024, supplemented by further assurances in October 2024, were sufficient in practice to remove the risks identified under Articles 3 and 6 ECHR. It also held that compulsory prison work in Japan fell within work required in the ordinary course of detention under Article 4(3)(a) ECHR, and that the alleged Article 5 issue did not amount to a flagrant breach in the extradition context. The appeals were therefore allowed and the discharge orders were set aside.

The case concerned judicial review challenges to the Secretary of State’s certification of Japan’s first extradition request to the United Kingdom, made under special extradition arrangements because no extradition treaty existed between the two States. The requested persons argued that the request was invalid because it had been issued by the Japanese National Police Agency rather than by the Government of Japan, contrary to the Memorandum of Cooperation, and because the diplomatic notes from the Japanese Embassy could not themselves constitute a valid extradition request. The Divisional Court rejected those arguments, holding that the Embassy notes expressly made or renewed a request for extradition on behalf of the Government of Japan and that the supporting police documents could properly be relied upon as part of the request. The Court further held that a formal diplomatic note issued by the Embassy could be treated as emanating from the Ambassador, acting as the diplomatic representative of Japan, and therefore satisfied the “approved way” requirement under section 70 of the Extradition Act 2003. The judicial review claim was dismissed, leaving the certification of the extradition request in place.

The Seoul High Court rejected Japan's extradition request for a Chinese national who, in December 2011, set fire to the gate (shinmon) of Yasukuni Shrine in Tokyo, causing minor damage and a risk of fire spreading to nearby structures. The suspect had acted in protest against the Japanese government's position on the "comfort women" (wartime sexual slavery) issue and its officials' continued visits to Yasukuni Shrine, which he regarded as a symbol of militarism. His maternal grandmother had been a Korean comfort woman abducted to China, and his paternal grandfather had died fighting the Japanese as a resistance soldier. The arson caused no casualties, and the damage was quickly extinguished by shrine security.The court conducted an extensive analysis of the concept of "political offence" under international and comparative law, distinguishing between absolute political crimes (acts directed solely against the state's political order) and relative political crimes (ordinary offences committed for a political purpose). Applying a six-factor balancing test — motivation, purpose, nature of the target, organic connection between the act and the political goal, legal character of the act, and proportionality between harm caused and political objective — the court concluded that the arson was predominantly a relative political crime rather than an ordinary criminal act.Key findings included: (i) the motivation was political protest, not personal gain; (ii) the purpose was to pressure the Japanese government to change its policy on historical recognition; (iii) Yasukuni Shrine, though legally a private religious corporation, carries political symbolism equivalent to a state facility; (iv) the act was organically connected to the political purpose, which was substantially achieved through the media attention generated; (v) the damage was closer in character to vandalism than arson; and (vi) there were no casualties and the property damage was minor, so there was no disproportionality. The court also considered the broader political context — the Korea–Japan historical dispute over comfort women, UN resolutions calling on Japan to accept legal responsibility, and resolutions adopted by the US, Dutch, Canadian and European parliaments — and held that extraditing the suspect would amount to a denial of South Korea's own constitutional values and the universal values espoused by the international community.