Two decades after a prewar law that mandated the segregation of patients suffering from Hansen’s disease was abolished, the Supreme Court is reportedly about to acknowledge its fault in authorizing criminal trials on patients of the disease outside standard courtrooms, often in effectively closed circumstances — a practice that former patients and their supporters charge violated the constitutional principle of open trials and denied fair proceedings for the accused.

The rare apology that the top court is said to be readying for the former patients of the disease, also known as leprosy, may be coming too late — given that the government accepted the illegality of the segregation policy, which was based on misconceptions about the disease, in 2001 and the Diet subsequently enacted a law providing compensation to former patients for their suffering under the policy. But it would still not be too late for the Supreme Court to candidly assess whether or how the trial proceedings were influenced by prejudice against the patients, and whether the courts’ rulings were handed down free of such influence.

Leprosy is a chronic infectious disease whose symptoms include granulomas of the skin, the peripheral nerves, respiratory tract and the eyes, but it is only mildly contagious. Based on the conception of the disease as contagious and incurable, Japan began the policy of segregating its patients in 1907 — without medical grounds — and the 1931 Leprosy Prevention Law confined the patients in isolated state-run sanitariums. This policy was maintained under the law’s postwar version — even though effective cures for the disease became available shortly after the end of World War II — until the law was finally repealed in 1996. The policy has been blamed for the serious prejudice and discrimination against former patients and their family members. It fueled a misconception that the disease was hereditary, which forced abortions and sterilizations on many patients.

In 2001, the Kumamoto District Court ruled in favor of former Hansen’s disease patients who sought damages for their mistreatment under the segregation policy, which they charged was unconstitutional. Then Prime Minister Junichiro Koizumi did not appeal the court decision and offered a government apology. The Diet passed a law to pay compensation for former patients and their bereaved families. But while the administrative and legislative branches have thus acknowledged their responsibility for the policy, the judiciary has taken no position on its past conduct regarding trials involving Hansen’s disease patients.

Between 1948 and 1972, the Supreme Court authorized all but one requests from district courts and high courts for holding “special trials” for Hansen’s disease patients accused of criminal offenses. The law on court proceedings provides for holding trials outside standard courtrooms with the approval of the Supreme Court — a provision that is believed to be created for such situations where court buildings were rendered unusable due to natural disasters. With the top court’s approval, 95 such trials were held inside the sanitariums and medical prisons — in many cases without the presence of spectators.

A case singled out by former patients and their supporters as particularly problematic was the trial in which a leprosy patient in what is now the city of Kikuchi, Kumamoto Prefecture, was accused of a series of offenses between 1951 and 1952, including murder and attempted murder. While the accused pleaded innocent, his state-appointed defense agreed to all the evidence provided by prosecutors, and the defendant was given a death sentence in 1953, just nine months after being charged. The ruling was finalized when his appeal was turned down four years later and he was executed in 1962 — a day after his third retrial plea was rejected.

According to subsequent accounts by a court official, there were no spectators in the special trial held in a room at the local sanitarium. There, the judges, prosecutors and lawyers were dressed in white coats and rubber boots, and the floor was sprayed with antiseptic. The judges wore rubber gloves to handle deposition papers and used chopsticks to inspect the pieces of evidence. A 2005 report compiled by a third-party panel at the Health, Labor and Welfare Ministry reviewing issues related to the Hansen’s disease determined that the trial on the case was held in an effectively closed circumstance where it was extremely difficult for spectators to attend — and that therefore the trial did not meet the constitutional rule that criminal trials must be open to the public.

But it was only in 2014 that the Supreme Court began a review of the process in which it authorized the special trials — in response to charges by a group of former patients that the trial proceedings violated the principle of open trials as stipulated by the Constitution — and that it was questionable whether the judges, fearful of infection from the disease, sufficiently deliberated the cases at hand in proceedings that were effectively led by the prosecution.

The Supreme Court’s probe has reportedly found that its administrative office failed to carefully consider the necessity to hold each of the special trials requested by the lower courts by examining the condition of the accused patients and the risk of infection, and gave the approval for the special proceedings after only nominal review of the applications by the courts. A panel of independent experts comprising scholars and lawyers, which was commissioned by the Supreme Court to review the process, is also said to have concluded that the top court’s decisions were discriminatory against the patients and could have been illegal.

Based on such findings, the Supreme Court is set to shortly wrap up its review and, according to some media reports, is considering an apology for the former patients as early as this month. However, the apology will likely be about the court’s error in its administrative procedures and will not delve into the individual cases — and is therefore not expected to lead to retrials, including one sought by lawyers for the former patients on the Kikuchi case. But it would still be worth looking into whether the accused were given fair trials in the abnormal proceedings.

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