T2 Update: An Expert Weighs In

by Allison Kole

March 11, 2010

On one hand there is the property rights of Seino transport and the owner of the box.  On the other hand there are the rights of Mr. Sato and Mr. Suzuki (T2) and the public interest around the embezzlement and traffic of whale meat.  Society has the right to be properly informed about a tax payer sponsored program.  They have the right to know what is going on. 
-Prof. Dirk Voorhoof on "balance of interests" and the case of the T2

Today was the final day for this phase of the trial of the Tokyo Two.  Greenpeace activists Junichi Sato and Toru Suzuki are facing trial for exposing a whale meat embezzlment scandal within lethal research whaling in Japan.  Having deconstructed the cover-up of the embezzlement scandal during the first part of the week, the defense now had to establish that Junichi and Toru were not only morally, but also legally justified in their actions. So today, the defense called Professor Dirk Voorhoof, an international expert on the right to freedom of expression, to explain the significance of international treaties Japan has ratified.

Prof. Dirk Voorhoof
Left: Junichi Sato, Lead attorney Kaido, and Professor Dirk Voorhoof at a press conference on March 11th 2010

Read the full statement of Prof. Dirk Voorhoof.

Article 10 of the European Convention on Human regarding freedom of expression has been interpreted in nearly 600 cases over the past 30 years.  This body of case law is often applied when making judgments on the application of other international conventions like the International Covenant on Civil and Political Rights (ICCPR).  Article 19 of the ICCPR guarantees freedoms of expression and freedom of information.  

There is less case law on Article 19, so countries that are parties to the ICCPR have used examples from the European Court of Human Rights to pass down opinions.  According to Voorhoof and even prominent Japanese legal authorities like Yuji Iwasawa, the current chair of the UN Human Rights Committee, Article 19 should be taken into account in criminal cases in Japan. The ICCPR is binding and has a place within the legal order of Japan.

Lady Justice Case after case was brought to the court showing both Article 19 of ICCPR and Article 10 of the European Convention on Human Rights being applied to journalists, NGOs, and citizens who had acted within their rights of freedom of expression and freedom of information.  According to Voorhoof, these numerous cases help to establish criteria for the European Court of Human Rights and UN Court of Human Rights to decide whether a person who had violated a criminal code in pursuit of information, was still acting in accordance with their rights of freedom of expression.  Below are summarized points Voorhoof made about these criteria and the application of them to the case of the T2.

1. The case has to do with revealing information of public interest.  There is indication of illegal trafficking of whale meat under the guise of scientific research.  The interest of the public and the right to know should be considered

2. There were no real effective alternatives to obtain evidence of whale meat embezzlement

3. This was (box of unesu, or whale bacon) crucial evidence, it was convincing evidence, sufficient evidence that whale meat was being secretly embezzled

4. No major damage was done to persons or institution-no physical damage to anyone, only the minor damage of temporarily keeping the box before delivering to the public prosecutor’s office

5. It is clear the T2 had no intention to steal or keep something for their personal profit.  This is demonstrated by the fact that they brought the evidence and information to the attention of media and the public through a press conference and then delivered it to the public prosecutor.

6. They presented their evidence with integrity, without sensationalizing it – they did not breach the personal privacy of the crew members, an element that shows good faith

7. Future effects:  If you convict a journalist, a citizen, or members of an NGO it can have a "chilling effect" making others scared of expressing information in the future.  Proportionality is important to this.  If a disproportionate sanction (jail sentence, fine, admonishment, even lenient punishment ect) is given that in itself can violate Article 10 of the European Convention 

Voorhoof pointed out to the court  that the UN Working Group on Arbitrary Detention has already handed down an opinion that the arrest of Junichi and Toru, and the seizure of Greenpeace office computers and documents violated Article 19 of the ICCPR.  This is an authoritative opinion reached by international experts appointed by the UN Human Rights Council.  A conviction of Junichi and Toru would only increase the chilling effect in society.  Voorhoof also stated that the T2 case shows how important transparency in a democracy is.  Media, NGOs, and citizens have a right to contribute to this process: "If Japan wants to develop more as an open and pluralistic society, it should value the voices of NGOs and their contribution to the public interest."

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The above images are ©Greenpeace/ Sutton-Hibbert

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