Japan
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ADDITIONAL RESOURCESLEGAL TRAINING RESOURCE CENTER |
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 has adopted a civil law system, which 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
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. 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.
Defendants' Rights
Defendants are entitled to notice of charges[1] and adequate counsel at time of arrest.[2]
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."[3]
Pre-Trial
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.[4] Then, the prosecutor has 24 hours to decide whether to prosecute.[5] 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[6]
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[7]. 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.
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.[8] Defendants who have been acquitted may not be charged with the same crime[9]
See Criminal Justice Systems Around the World
QUICK FACTS
- 2009 Prison Population: 75,250.
Notes
- ↑ Constitution of Japan, Art. 33
- ↑ Constitution of Japan, Art. 33; "The accused or a suspect in custody may, without having an official present, have an interview with his or her defense counsel or any other person who is going to be his or her defense counsel upon request of the person who is entitled to appoint defense counsel ... and may deliver or receive any documents or any other articles to or from the defense counsel or said person." Japan Criminal Procedure Code Article 39(1)
- ↑ Japan Criminal Procedure Code, Art. 198(2)
- ↑ Japan Criminal Procedure Code, Art. 203(1)
- ↑ Japan Criminal Procedure Code, Art. 205
- ↑ Constitution of Japan, Art. 36
- ↑ Constitution of Japan, Art. 37(2)
- ↑ Constitution of Japan, Art. 40
- ↑ Constitution of Japan, Art. 39
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