Japan

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ADDITIONAL RESOURCES Constitution of Japan Criminal Procedure Code of Japan Penal Code of Japan LEGAL TRAINING RESOURCE CENTER eLearning Courses for Criminal Defense lawyers

Background

Following Japan’s Defeat in the Pacific War in 1945, General Douglas MacArthur took control of Japanese territories, serving as the Supreme Commander for the Allied Powers (SCAP). As the SCAP, MacArthur sought to democratize Japan, implementing several fundamental systemic changes to the existing system. In the span of two years, the Japanese imperial military was dismantled, the economy was democratized, separation of church and state was enacted, and individual rights were established through the abolishment of legislation that restricted political, civil, and religious liberties.

On May 1947, Japan adopted a new constitution matching MacArthur’s system reforms; this constitution guaranteed popular sovereignty, liberal democracy, and fundamental human rights. It also maintained that the emperor should serve as a symbol without political power, and that the individual should come before society and state. Apart from constitutional law, acts such as The Diet Act, the Cabinet Act and the Judiciary Act also have constitutional significance in the Japanese Judicial System.

Today, Japan is a homogenous country. 99% of its population, of 127,000,000 citizens, is Japanese. Its criminal justice system is said to have one of the highest conviction rates in Asia. Despite constitutional provisions banning torture, forced confessions are said to be frequent. Many defendants are convicted on nothing more than a confession with little or no corroborating evidence.

Type of System

Japan's criminal justice system is generally considered inquisitorial and is based on the civil law model in which the judge plays a significant role in investigation and trial. Japan’s system generally emphasizes statutes and codes over precedence and case laws. Like South Korea and Taiwan, the Japanese civil law system is composed of Six Codes. These include the Constitution of Japan (1946), the Civil Code (1896), the Code of Civil Procedure (1996), the Code of Criminal Procedures (1907), the Code of Criminal Procedure (1948) and the Commercial Code (1899).

Legal Aid Situation in Country

State Sponsored Legal Aid

In 1952, the Japan Federation of Bar Associations (JFBA) founded the Japan Legal Aid Association with the objective of providing accessible judicial aid and legal advice to every day citizens, as guaranteed by the Japanese Constitution. In 2000, the Civil Legal Aid Law took effect, guaranteeing that legal aid services would be provided to citizens in regards to civil cases. Similarly, the Comprehensive Legal Service Law and the Japan Legal Support Centre provide court-appointed attorneys for defendants in criminal cases.

Number of Lawyers

In 2000, the Japan Federation of Bar Associations (JFBA) estimated that 21,264 attorneys were registered in the country. Since then, JFBA numbers have demonstrated that the legal field has undergone significant development. As of 2012, JFBA reported that approximately 36,824 attorneys were registered with the association. As the bar examination tests law candidates in public law, civil law and criminal law, certified attorneys in Japan are generally qualified to practice in most Japanese legal professions.

Sources of Defendants' Rights

Article 31 through 40 of the Constitution of Japan enumerate many rights the accused are entitled to in Japan. These provisions are interpreted by the Supreme Court of Japan.

I. Fundamental Human Rights:

Article 11 states that the people shall not be prevented from enjoying any of the fundamental human rights. These fundamental human rights guaranteed to the people by this Constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights.

II. Right to Freedom:

Article 12 states that the “freedoms and rights guaranteed to the people by this constitution shall be maintained by the constant endeavour of the people, who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.”

III. Pursuit of Happiness:'

Article 13 also suggests that individuals should have basic respect, right to life, liberty and the pursuit of happiness inasmuch as these goals do not interfere with public welfare.

IV. Equality:

Article 14 disallows discrimination in political, economic, and social realms, suggesting that all people are equal under the law regardless of race, creed, sex, social status, or family origin.

V. Democracy:

Under Article 15, Individuals are also granted the right to choose and dismiss their representatives and officials.

VI. Rights Pertaining to Criminal Justice: The constitution guarantees access to court and prevents unlawful detention, as officers carrying out arrests must hold warrants issued by a competent judicial officer. Seized individuals must be informed of the charges against him or her, as well as his or her immediate right to counsel. Defendants are guaranteed a speedy and impartial trial. They are protected from the infliction of torture and cruel punishments from any public officer, and they are not required to testify against themselves.

VII. Presumption of Innocence

When the case under public prosecution does not constitute a crime or has not been proven to be a crime, the court shall render a not guilty verdict in the judgment. (Article 336)

VIII. Impartial Trial

Article 17 states that “A public prosecutor shall request the next higher court of the court concerned to effect a change of jurisdiction when: (i) The competent court is unable to exercise its jurisdiction owing to legal reasons or special circumstances; (ii) There is the fear that the impartiality of the trial cannot be maintained owing to the general sentiment of the local people in the district, the state of the proceedings or any other circumstances.”

In the cases prescribed in each of the items of the preceding paragraph, the accused may also request a change of jurisdiction.

Several laws pertaining to trial and criminal justice are listed below:

Article 32. No person shall be denied the right of access to the courts.

Article 33. No person shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offense with which the person is charged, unless he is apprehended, the offense being committed.

Article 34. No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel; nor shall he be detained without adequate cause; and upon demand of any person such cause must be immediately shown in open court in his presence and the presence of his counsel.

Article 35. The right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause and particularly describing the place to be searched and things to be seized, or except as provided by Article 33. Each search or seizure shall be made upon separate warrant issued by a competent judicial officer.

Article 36. The infliction of torture by any public officer and cruel punishments are absolutely forbidden.

Article 37. In all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal. He shall be permitted full opportunity to examine all witnesses, and he shall have the right of compulsory process for obtaining witnesses on his behalf at public expense. At all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the State.

Article 38. No person shall be compelled to testify against himself. Confession made under compulsion, torture or threat, or after prolonged arrest or detention shall not be admitted in evidence. No person shall be convicted or punished in cases where the only proof against him is his own confession.

Article 39. No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he has been acquitted, nor shall he be placed in double jeopardy.

Article 40. Any person, in case he is acquitted after he has been arrested or detained, may sue the State for redress as provided by law.

Defendants' Rights

Defendants are entitled to notice of charges and adequate counsel at time of arrest.

Defendants have the right to remain silent: "In the case of interrogation ..., the suspect shall, in advance, be notified that he or she is not required to make a statement against his or her will."

Pre-Trial

I. Complaint

Individuals who may file complaints include “a victim injured by an offense.” Similarly, a statutory representative of a victim may also file a complaint (Article 230.) In cases in which the victim has died, spouses, lineal relatives, brothers or sisters may file complaints, but not when it is against the expressed wishes of the victim (Article 231). If a statutory representative is the suspect the spouse of the suspect, a blood relative (within the fourth degree of kinship, or a relative by affinity within the third degree of kinship of the suspect) may file a complaint independently (Article 232).

When a deceased individual has been defamed, his or her relatives or descendants may file a complaint (Article 233). This shall apply in cases in which the victim was defamed prior to death, but has died without filing a complaint (provided that the complaint does not go against expressed wishes of the victim (Article 234).

Where there is no person who can file a complaint with regard to an offense prosecutable upon a complaint, a public prosecutor may, upon the application of an interested person, designate a person who can file a complaint (Article 235)

Complaints should be filed with a public prosecutor or a judicial police official either orally or in writing. The public prosecutor shall make a written statement in the case of oral complaints and accusations, and a judicial official shall send the documents and articles of evidence regarding a complaint or accusation to a public prosecutor immediately upon receipt of a complaint or accusation (Article 241 and 242).

The Code of Criminal Procedure specifies “with respect to an offense prosecutable upon a complaint, no complaint shall be made after the lapse of six months from the day on which the complainant knew the offender.” Exceptions to the case can be found in Article 235.”

II. Arrest

An individual may be arrested upon issuance of a warrant issued by a competent judicial officer. In serious cases, police may make a warrantless arrest. However, the warrant must be obtained immediately thereafter. It must specify the offense. Extensive pre-trial detention is prohibited under Article 34 of the Constitution and an arresstee must be produced in open court immediately upon request. Police have 48 hours to produce a defendant before the prosecutor. Then, the prosecutor has 24 hours to decide whether to prosecute. If he choses to prosecute, the defendant must be brought to court. Searches and seizures generally require a warrant issued for adequate cause.

"The infliction of torture by any officer and cruel punishements are absolutely forbidden" under the Constitution of Japan

III. Search

Article 103 of the Code of Criminal Procedures details that “the court may, when it is necessary, search the body, articles, residence or any other place of the accused.” The body, articles, residence or any other place of a person other than the accused may be searched only when it is reasonably supposed that articles which should be seized exist. (Article 103)

“Articles retained or possessed by a public officer or ex-public officer may not be seized without the consent of his/her supervisory public agency, when he/she or the public agency asserts that the articles pertain to official confidential information; provided, however, that the supervisory public agency may not refuse consent except where the seizure may harm important national interests.” (Article 104)

IV. Seizure

Article 99 of the Code of Criminal Procedures states that the court may seize or confiscate articles of evidence when necessary. (Article 99) The court may order the possessor, owner, or custodian of the article to submit the item(s) in question. (Article 100) Article 101 also allows the court to seize “postal items or telegram documents sent to or by the accused which are retained or possessed by public agency of communications or other individuals provided that these items are reasonably related to the case.

“When the court has made the disposition in the preceding two paragraphs, the sender or recipient shall be so notified. This shall not apply when there is the fear that such notification would obstruct court proceedings.” (Article 101)

Seized Items may be retained. (Article 102)

V.Interrogation

As stated in Article 198, public prosecutors, public prosecutor’s assistant officers or judicial police officials may ask any suspect to appear in their offices for interrogation, if necessary for the investigation of a crime. The suspect may refuse to appear or withdraw after he or she has appeared if he or she is not under arrest or under detention.

The process for interrogation is as follwos: 1. The suspect shall be notified in advance that he or she is not required to make a statement against his or her will. 2. The statement of the suspect may be recorded in a written statement. 3. The written statement set forth in the preceding paragraph shall be inspected by the suspect or read to him/her for verification, and if he/she makes a motion for any addition, removal or alteration, his/her remarks shall be entered in the written statement. 4. If the suspect affirms that the contents of the written statement are correct, he/she may be asked to attach his/her signature and seal to it; provided, however, that this shall not apply when the suspect refuses to do so.(Article 198)

In cases in which a person who apparently possesses information essential to the investigation of a crime refuses to appear or make a statement voluntarily at the interrogation pursuant to the provision of paragraph 1 of Article 223, a public prosecutor may, only before the first trial date, request a judge to examine him/her as a witness(Article 226).

VI. Other pre-Trial Proceedings

(1) When the court deems it necessary to conduct productive proceedings of a trial consecutively, systematically and speedily, the court may, after hearing the opinions of the public prosecutor and the accused or his/her counsel and prior to the first trial date, order on a ruling that the case be subject to a pretrial arrangement proceeding as trial preparation for arrangement of the issues and evidence of the case (Article 316-2).

Prior to the first trial date, the Code of Criminal Procedures indicates, “the judge shall take charge of the disposition concerning detention” (Article 280). During detention, “the judge shall immediately notify the accused of the facts charged, his/her statement, and, unless issuing a detention warrant, shall order release of the accused immediately (Article 280).

The court can order pre-trial arrangements based off of the opinions of the public prosecutor, the accused, and or his or her counsel. During Pre-trial hearings, issues and evidence of the case shall be arranged and prepared for trial, and persons concerned shall appear in court and make statements or produce relevant documents. Pre-trial arrangements shall be conducted systematically and speedily, and individuals involved should cooperate with the court willingly. No pre-trial proceedings may be conducted when the accused does not have counsel. Under circumstances in which the accused does not have access to counsel, “the presiding judge shall appointed counsel ex officio. (Article 316)

The following activities may be conducted during pre-trial arrangements

A. Clarification of the counts or applicable penal statutes B. Permission for addition, revocation, or alteration of the counts or applicable penal statutes C. Arrangement of the issues of the case by disclosing the allegation planned to be given on the trial date D. Requests for evidence examination E. Disclosure of evidence and matters to be proven and examined F. Confirmation of the opinion concerning the request for examination of evidence (including whether or not to give the consent prescribed in Article 326 for the documentary evidence) G. A ruling to examine the evidence or dismiss the request for examination of evidence H. Decision on the order and method of examining evidence for which a ruling for examination has been made I. Rendering of a ruling on the filing of an objection against the examination of evidence J. Rendering of a ruling on the disclosure of evidence pursuant to the provisions of item K. Setting or changing of the trial dates and a decision on other necessary matters for the proceedings of the trial — Article 316-5

Proceedings of Pre-Trial Hearings: The presiding judge shall set the date of the pretrial arrangement proceeding when he/she is to have persons concerned in the case appear in court. The date of the pretrial arrangement proceeding shall be notified to the public prosecutor, the accused and his/her counsel. The presiding judge may change the date of the pretrial arrangement proceeding upon the request of the public prosecutor, the accused or his/her counsel or ex officio. In this case, then presiding judge shall hear the opinions of the public prosecutor and the accused or his/her counsel in advance pursuant to the Rules of Court. (Article 316-6)

When the public prosecutor or the defense counsel does not appear on the date of the pretrial arrangement proceeding, the proceedings on that date may not be conducted. (Article 316-7)

(1) When there is a risk that the defense counsel will not appear on the date of the pretrial arrangement proceeding or when he/she leaves the proceeding, the presiding judge shall appoint defense counsel ex officio. (2) When the defense counsel is likely not to appear on the date of the pretrial arrangement proceeding, the court may appoint defense counsel ex officio. (Article 316-8)

(1) The accused may appear on the date of the pretrial arrangement proceeding. (2) When the court deems it to be necessary, it may ask the accused to appear on the date of the pretrial arrangement proceeding. (3) When the accused is to appear at the pretrial arrangement proceeding, the presiding judge shall, on the first date that the accused is to appear, begin by giving notification to the accused that he/she may remain silent at all times or may refuse to answer particular questions. (Article 316-9)

Trial

Japan eliminated the jury trial in 1943. Today, the majority of criminal cases are tried before either one or three judges, depending on the charge. Defendants have the right to a public and open trial. Defense attorneys may cross-examine witnesses and have the right to compulsory process. In 2009 new legislation reintroduced the jury system in the form of lay judges. However, these are only available in certain serious cases. Judges take an active role in the trial, calling witness, requesting evidence and determining both the guilt and sentence phases of the case.

I. Standards of Proof

When pronouncing a sentence, the court shall signify the facts constituting the crime, the list of evidence, and the application of laws and regulations. When a reason to preclude establishment of the crime by act or grounds for aggravation or reduction of the punishment have been argued, the court shall render an opinion on it (Article 335.)

II. Witnesses

Article 143 in the Criminal Procedure Code states that the court may examine any person as a witness. Articles 146-149 detail cases in which an individual may refuse to serve as a witness (e.g. if it may compromise themselves, their spouses or their professional oaths.)

Witnesses shall swear an oath (Article 154), and “the court may have witnesses testify on matters inferred from things which he or she has actually experienced.”

The public prosecutor and the accused (or the counsel of the accused) may attend the examination of a witness (Article 157).

The court shall also conduct assessments on the witness following testimony: In the examination of a witness the court may, after hearing the opinions of the public prosecutor and the accused or his/her counsel, when, taking into account the witness's age, mental or physical condition or other circumstances, the witness is likely to feel extreme anxiety or tension, have the witness accompanied during the testimony of the witness by those who are appropriate in easing the witness's anxiety or tension, and are unlikely to disturb examination by a judge or persons concerned in the case or the testimony of the witness, and are unlikely to unduly influence the contents of the testimony Article 157-2

The recording medium on which the examination, the testimony and the circumstances of the witness are recorded in accordance with the preceding paragraph shall be attached to the case records as part of the trial records (Article 157-4).

Post-Conviction

Both defendants and prosecutors have the right to appeal a trial court decision. Appeals to the Supreme Court are limited to questions of a Constitutional nature. If the defendant was detained during the case and is later declared not guilty, they may be entitled to compensation from the state for the period of detention. Defendants who have been acquitted may not be charged with the same crime

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QUICK FACTS

• 2009 Prison Population: 75,250.

Notes

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