The first appeal was rejected on 28 September by the Sendai High Court, prompting the new special appeal to the Supreme Court on 5 October. This asserted that if the prosecutor did not disclose this evidence it would be a violation of Article 37(2) of the Japanese Constitution, as well as Article 14(3)(b) of the International Covenant on Civil and Political Rights, which both guarantee the right to a fair trial.
The rejection of the appeal will have significant ramifications on the case, as it deprives Sato and Suzuki, known as the 'Tokyo Two', of important means to prove their innocence. The two were seeking disclosure of evidence that would have helped prove the existence of an embezzlement scandal covered up by the government, and therefore the justification for their actions in exposing it. Today's decision turns this into a case about a 'theft', ignoring the broader embezzlement issue, as well as the selfless motives of the defendants.
Over 3,000 lawyers, individuals and organisations, including Amnesty International(1), wrote to the Supreme Court in support of the special appeal, with Amnesty International Director of Policy Michael Bochenek noting that "the government's prosecution of these two activists is an unjustifiable interference with their rights to freedom of expression and association."
International law guarantees the right to a fair trial, and this requires both parties be in an equal position to make their case.
"[T]he defence must be afforded a reasonable opportunity to prepare and present its case on a footing equal to that of the prosecution," writes Bochenek. "The prosecution must disclose all material information to the defence."
Similar failures to disclose evidence have earned Japan repeated criticism(2) from UN human rights bodies, and the trial of the Tokyo Two shows that this problem remains.
"Fundamental to a fair trial is the ability of the defence to access all relevant evidence held by the prosecution, which in Junichi and Toru's case will demonstrate their innocence," said Jun Hoshikawa, Executive Director of Greenpeace Japan. "By rubber-stamping the censorship of this evidence, the Supreme Court has endorsed the continued violation of Junichi and Toru's human rights, and demonstrated that Japan's legal system is geared for convictions rather than justice."
Greenpeace is an independent, global campaigning organisation that acts to change attitudes and behaviour, to protect and conserve the environment, and to promote peace.
Other contacts: Greg McNevin - Greenpeace International Communications
+31 (0)6 2900 1152, 
Kyoko Murakami - Greenpeace Japan Communications
+81 (0)80 5008 3048, 
Notes: (1) Amnesty International letter supporting the Tokyo Two appeal for disclosure of evidence: http://www.greenpeace.or.jp/press/releases_en/attached/amnesty_letter.pdf
(2) United Nations criticism:
1. UN Human Rights Committee, Concluding Observations on the Fifth Periodic Report of Japan submitted under Article 40 of the International Covenant on Civil and Political Rights, 18 December 2008, UN Doc. CCPR/C/JPN/CO/5. Relevant paragraphs: 18 and 26.
2. UN Committee Against Torture, Concluding Observations on the Initial Periodic Report of Japan submitted under Article 19 of the UN Convention Against Torture, 3 August 2007, UN Doc. CAT/C/JPN/CO/1. Relevant paragraphs: 13 and 15
3. UN Human Rights Committee, Concluding Observations on the Fourth Periodic Report of Japan submitted under Article 40 of the International Covenant on Civil and Political Rights, 19 November 1998, UN Doc. CCPR/C/79/Add.102. Relevant paragraph: 26
All available here
In April 2008, Greenpeace began an investigation into whistleblower allegations that organised whale meat embezzlement was being conducted by crew inside Japan's so-called 'scientific' whaling programme, which is funded by Japanese taxpayers. The informer was previously involved in the whaling programme, and following his advice Junichi Sato and Toru Suzuki began an investigation, eventually discovering firm evidence that cardboard boxes containing whale meat were being secretly shipped to the homes of whaling fleet crew - and then sold for personal profit. Junichi delivered a box of this whale meat to the Tokyo Prosecutors' Office in May 2008, and filed a report of embezzlement. However, the embezzlement investigation was dropped on 20 June - the same day that both men were arrested and then held for 26 days before being charged with theft and trespass.
More: http://www.greenpeace.org/tokyo-two