Japan's Criminal Procedures & Victims' Rights: Article 38 & Police/Prosecutors' Role, Summaries of Criminal procedure

Download Japan's Criminal Procedures & Victims' Rights: Article 38 & Police/Prosecutors' Role and more Summaries Criminal procedure in PDF only on Docsity! CHAPTER 4 PRE-TRIAL CRIMINAL PROCEDURE I. INTRODUCTION Japan is a unitary state, and the same criminal procedure applies throughout the nation. The Code of Criminal Procedure (hereinafter CCP), the Act on Criminal Trials Examined under the Lay Judge System, and the Rules of Criminal Procedure are the principal sources of law. II. CONSTITUTIONAL SAFEGUARDS The Constitution of Japan has an extensive list of constitutional guarantees that relate to the criminal process. Article 31 provides that “no person shall be deprived of life, or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law,” while Article 33 states that “no person shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offence with which the person is charged, unless he is apprehended, the offence being committed.” Further, as prescribed in 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 provides for the protection of one’s residence and property, stating “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.” As for the trial proceedings, Article 38 provides that “no person shall be compelled to testify against himself,” and that a “confession made under compulsion, torture or threat, or after prolonged arrest or detention shall not be admitted in evidence.” It further provides that “no person shall be convicted or punished in cases where the only proof against him is his own confession.” As for the protection of some of the basic rights of the individual who is facing a criminal trial as an accused, Article 37 provides that “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.” According to 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.” Finally, Article 40 provides that “any person, in case he is acquitted after he has been arrested or detained, may sue the State for redress as provided by law.” III. INVESTIGATIVE AGENCIES The police are the primary investigative agency in Japan. Officers of certain other administrative bodies, such as narcotics agents and coast guard officers, have limited jurisdiction to investigate certain type of offences, whereas police officers have general jurisdiction which covers all types of offences. The vast majority of criminal cases are investigated by the police and referred to public prosecutors. As the police do not have the power to decide whether to prosecute, all cases investigated by the police must be sent to public prosecutors for disposition, except for very minor offences prescribed by prosecutorial guidelines as categories of cases that may be terminated at the police level subject to non- prosecution upon subsequent approval by a prosecutor. A public prosecutor has the exclusive power to decide whether or not to prosecute, and Japanese law does not permit private prosecutions. Moreover, public prosecutors are fully authorized to conduct criminal investigations, and they actively supplement police investigation by directly interviewing witnesses and interrogating suspects. Prosecutors may also instruct police officers as they consider necessary during an investigation. Prosecutors can also initiate their own investigations. In particular, with CHAPTER 3 CRIMINAL JUSTICE FLOW CHART This chart shows the flow for criminal procedure for adult offenders in Japan. (Source for statistical data, White Paper on Crime 2018) Non-penal fine for traffic offences Investigation initiated by public prosecutor etc. Clearance Police etc. Referral to public prosecutors. Case received Public Prosecutors Office Prosecution Case received Disposition of trivial offences Public Prosecutors Office Persons newly received: 1,055,327 Indictment: 83,988 Summary Prosecutions: 245,529 Non-prosecution Non-Prosecution: 671,694 Not-guilty etc. Court Guilty: Fine, petty fine Summary Proceeding Formal Trial Court Capital Punishment: 2 Fine, petty fine Imprisonment: 52,250 Fine: 244,701 Misdemeanor imprisonment without work, petty fine: 1,924 Not guilty: 130 Detention in workhouse in lieu of payment of fine Sentence of Imprisonment Admission Suspension of execution of sentence Penal Institution Release on completion of the period of Release on Parole Case received Probation Office Expiration of period Suspension of execution of sentence with probation Notes: 1. Figures show the number of persons in 2017, including juveniles. 2. For figures under the heading “Public Prosecutors Office,” if the same person is processed twice, the number is counted as two persons. 3. Figures under the heading “Court” refer to the number of defendants whose sentence were finalized. imprisonment of probation, etc. Revocation, etc. － 13－ regard to politically sensitive or complicated cases, such as bribery or large-scale financial crime involving politicians, high-ranking government officials or corporate executives, prosecutors often investigate the case without any police involvement. This is called “independent investigation”. Special Investigation Departments established in the Tokyo, Osaka and Nagoya offices are designed to carry out such independent investigations. Also, several other large offices have “special criminal investigation departments” mainly dedicated to independent investigations. IV. INVESTIGATION PROCESS A. Overview Japanese police and public prosecutors, to the extent possible, conduct criminal investigations without resorting to compulsory measures such as arrest, searches, and seizures. Even for serious offences, they gather as much information as possible on a non-compulsory basis and carefully evaluate whether an arrest is necessary or if the investigation should continue without arresting the suspect. In 2017, 63.9 percent of suspects of non-traffic offences were investigated and processed without arrest.7 The procedure after arrest is as follows: (1) When the police arrest a suspect, they must refer the suspect, along with supporting documents and evidence, to a public prosecutor within 48 hours; otherwise the suspect must be released. (2) Within 24 hours after receiving the suspect, the prosecutor must do either one of the following: apply to a judge for a pre-indictment detention; prosecute the case; or release the suspect. (3) If an application for pre-indictment detention is granted, a judge will issue a warrant, and the suspect will be taken into detention. Its duration is ten days, which may be extended for up to another ten days. (4) When the case is prosecuted within the authorized pre-indictment detention period, the pre- indictment detention is automatically converted to pre-trial detention. If the case is not prosecuted, the suspect must be released. Afterward, the public prosecutor decides whether to continue the investigation without arrest, or not to prosecute the case. B. Initiating a Criminal Investigation A criminal investigation is initiated when an investigative agency becomes aware that a crime has been committed. Although there is no limit on what could trigger this, typical causes determined by law include (1) discovery of an offender in flagrante, (2) autopsy of a body following unnatural death, (3) accusation by the victim or another person, (4) agency request, (5) admission of guilt, and (6) police questioning. (1) Discovery in flagrante Cases where the perpetrator is caught in the act of committing a crime, or where a person may be clearly deemed to have just committed a crime. (2) Autopsy of a body following unnatural death When a body is discovered and the cause of death is deemed highly likely to have been a criminal act, or when such a cause cannot be ruled out, the investigative agency must conduct an external autopsy. This is a non-invasive examination to assess the condition of a body. If, as a result of the external autopsy, a need is seen to delve further into the cause of death, a medico-legal or forensic autopsy is generally carried out by a doctor, pending the issue of a court warrant. (3) Accusation by the victim or another person Cases where the victim of a crime reports the crime to an investigative agency and seeks criminal proceedings against the perpetrator. Also, in cases where a person other than the victim reports the crime to an investigative agency and seeks criminal proceedings against the perpetrator. (4) Agency request Cases where an organization prescribed by law reports a crime to an investigative agency and 7 White Paper on Crime 2018, Ministry of Justice, Japan. － 14－ 3. Searches and Seizures In order to lawfully search for and seize evidence, a judicially issued warrant is required. The only exception to this requirement is for searches and seizures incident to arrest. According to Supreme Court precedents, a serious violation of search and seizure rules may result in the inadmissibility of evidence so acquired. Public Prosecutor's Interrogation (moot) F. The Right to Counsel The right to counsel is guaranteed by the Constitution and the CCP. Suspects may retain a counsel at any time at their own expense. Confidential communication is guaranteed, and suspects under arrest or detention are entitled to meet with their counsel and to exchange documents or articles without any officials being present. Previously, court-appointed counsel was available after indictment, but the availability of counsel was restrictive at the pre-indictment stage, depending on the gravity of the offence. However, a CCP amendment, effective since June 2018, expanded the rule: now, all suspects held in pre-indictment detention are entitled to ask for court-appointed counsel if they are unable to hire one because of indigence or other reasons. Furthermore, the Bar Associations operate the Toban-Bengoshi system, which was introduced in 1990. Toban-Bengoshi means “an attorney on duty,” and when requested by an arrested person or his or her family, a Toban-Bengoshi will immediately visit the arrested person at the police station etc. to provide legal advice. This first visit is provided free of charge. G. Bail Suspects under pre-indictment detention are not bailable. When they are indicted, their legal status changes from a suspect to a defendant, and from that point on, they become eligible for bail. Bail must be granted except when: (1) the defendant is charged with an offence punishable by death, life, or a minimum term of one year’s imprisonment; (2) the defendant was previously convicted of an offence punishable by death, life, or a maximum term of more than ten years’ imprisonment; (3) the defendant has habitually committed an offence for which a maximum term of imprisonment of three years or more is prescribed; (4) there is probable cause to suspect that the defendant may conceal or destroy evidence; (5) there is probable cause to suspect that the defendant may harm or threaten the body or property of the victim or any other person who is deemed to have essential knowledge for the trial of the case or the relatives of such persons; or (6) the defendant’s name or residence is unknown. Likelihood of reoffending is not a valid ground for denying bail. When granting bail, the court is － 17－ required to set the amount of the bail bond. The court may also add other appropriate conditions, and in practice, bail is often subject to the condition that the defendant not contact co-defendants, witnesses, or victims. V. DISPOSITION OF CASES A. Responsibility for Prosecution 1. Principle Public prosecutors have the exclusive power to decide whether to prosecute,10 and this system is called “monopolization of prosecution.” Japan does not have a system of private prosecution or police prosecution, and there are no grand juries. A court cannot try a case unless it is prosecuted by a public prosecutor. 2. Exception There are two exceptions to the monopolization of prosecution: quasi-prosecution11 and compulsory prosecution following a recommendation by the Committee for Inquest of Prosecution (see Section E for details). B. Forms of Prosecution There are two forms of prosecution: formal and summary.12 1. Formal Prosecution (Indictment)13 Formal prosecution is a request to hold a formal trial, and it is made by filing of a charging instrument called a Kiso-Jo.14 The charging instrument must contain a clear description of the facts constituting the offence charged. In order not to prejudice the court before trial, no evidentiary materials may be attached to a Kiso-Jo. (Speedy Trial Procedure) At the time of the filing of a Kiso-Jo, with the consent of the defendant, the prosecutor may ask the court to try the case by the Speedy Trial Procedure. The Speedy Trial Procedure is applicable when the following conditions are met: (1) The offence is not punishable by death, life, or a minimum of one year’s imprisonment; (2) The case is clear and minor; and (3) The examination of evidence is expected to be completed promptly. When the application is granted, the case will be tried by a simplified and expedited procedure. The court is required to set an early trial date and, to the extent possible, render its judgement within one day. When sentencing the defendant to a term of imprisonment, the court has to suspend the execution of the sentence. When a case is tried by the Speedy Trial Procedure, the defendant shall not appeal a judgment on the ground that fact-finding was erroneous. The Speedy Trial Procedure was introduced in October 2006 in order to enable prompt disposition of minor cases and early release of defendants. In 2017, speedy trial procedure was invoked for a total of 723 defendants, and the majority of the cases were for violations of the Stimulant Control Act and the Cannabis Control Act. 10 CCP Article 247. 11 In other words, “Analogical Institution of Prosecution through Judicial Action.” (CCP Articles 262 to 269). 12 The traffic infraction fine system (Pecuniary Penalty against Traffic Infractions) is a procedure under which a person who commits certain minor offences in violation of the Road Traffic Law is exempted from criminal punishment by paying a sum of money fixed by law as an administrative disposition. However, if violators fail to pay that fine, they are to be dealt with under a regular criminal procedure and are subject to criminal punishment by the court. 13 The word "indict" or "indictment" used here means "an public action in criminal matters bringing a case to be tried in an open court", unlike the one determined by the Grand Jury in the United States or cases to be tried in the Crown Court in the United Kingdom. 14 CCP Article 256. － 18－ An example of a Kiso-Jo (translated into English) is included below: Kiso-Jo (Charging Instrument) The following case is hereby prosecuted. 14 May 2017 Tokyo District Public Prosecutors Office Public Prosecutor, KOUNO, Ichirou (his seal) To Tokyo District Court: Defendant Permanent Domicile: Yoshida 823, Kawami-cho, Tama-gun, Fukuoka Prefecture Present Address: Room Number 303, 1-2-3, Akihabara, Chiyoda-ku, Tokyo Occupation: None Under Detention HIGASHIYAMA, Haruo (The defendant’s name) 17 April 1957 (The defendant’s birth date) Alleged Facts At around 11 p.m. on 23 April 2017, on a street located in 2-4-7, Minami, Shibuya- ku, Tokyo, the defendant, with intent to kill, stabbed MORITA Toshikazu (24 years of age) in the chest with a knife, thereby causing the death of Morita, who died from blood loss attributable to the stab wound in the chest, at around 11:58 p.m. on the same day, at YAMADA Hospital located in 3-1-23, Takao, Meguro-ku, Tokyo Charged Offence and Applicable Penal Statutes Penal Code Article 199 － 19－ F. Assistance and Protection for Crime Victims and Their Participation in the Criminal Justice Process 1. Victim Notification Programme Victims of crime have legitimate interest in knowing the outcomes of the criminal cases arising from their victimization. In 1999, the prosecutor’s office introduced the Victim Notification Programme to keep victims informed of the progress and outcomes of their cases. Notification is not automatic. As some victims prefer not to be contacted, notice is given to only those who have asked for it. (In addition, in cases where a complaint was filed, the public prosecutor has the obligation under law to notify the complainant, of the decision to prosecute or not prosecute, and upon the victim’s request, the reason for non-prosecution when the case was not prosecuted.) Information notified under the programme includes the following: (1) Disposition of the case (e.g. prosecution for formal trial, summary prosecution, non-prosecution or referral to the Family Court); (2) Venue and time of the trial; (3) The results of the trial (conclusion section of the judgment, status on appeal); (4) The perpetrator’s custody details, the indicted facts, summary of the reasons for non- prosecution, and other matters similar to those listed in (1) to (3); and (5) The matters concerning the perpetrator after conviction is finalized: • Name and location of the prison where the perpetrator is imprisoned. • The possible schedule for release from prison (the scheduled date of release on completion of the sentence, parole) after the prison sentence becomes final. • Treatment of the perpetrator in prison (updates are given around once every six months). • The date when the perpetrator was actually released (release on completion of the sentence, parole). • The date when suspension of execution of the sentence was revoked. • The date when a decision was made for granting parole. • The date when probation was commenced and the scheduled end thereof. • Treatment during probation (updates are given around once every six months). • The date when probation ended. 2. Victim participation and victim protection at the trial stage Victim participation Victims of crimes (including the victim's spouse, lineal relatives and siblings in cases where the victim has died) may, among others, take part in criminal trials as victim participants. As victim participants, they may, subject to the decision of the court, state their opinions on the facts of the case and the application of the law (including on sentencing), question defendants for the purpose of stating the opinion on the facts of the case and the application of the law, and of the victim impact statement (see below), and question witnesses for the purpose of challenging the credibility of the testimony regarding the aggravating or mitigating circumstances (except for matters related to fact-finding). Participation is only permitted in cases of serious crimes such as homicide, grievous bodily harm or rape. Statement of opinion (victim impact statement) Victims may, among others, state their feelings about the harm they suffered and other opinions on the alleged case. Protection measures during trial To lessen the burden on the victims when they testify in court as witnesses, or make a statement of opinion, they may be (a) accompanied by family members or counsellors, (b) shielded from the defendant and observers, (c) seated in a separate room and questioned via video link. The first two measures are available if the victim attends the trial as a victim–participant. Measures to protect the victim’s identity In certain sensitive cases, there are procedures for protecting the victim’s identity from the public, and in certain special cases, to the victim’s identity is withheld from the defendant. Protection measures － 22－ include non-disclosure of the victim’s name, address and other personal information. Judicial compromise There is a procedure for criminal settlement whereby the defendant and the victim may reach an agreement in a civil dispute related to a criminal case; the content of that agreement is noted in the trial record of the criminal case. Restitution Order When a victim has filed a claim for payment of compensation with a criminal court, the criminal court continues to review the civil dispute after reaching a judgement of conviction in the criminal case, as an ancillary procedure, and makes a decision on compensation. 3. Compensation for crime victims Crime victim benefits The “Act on Support for Crime Victims, etc. Such as Payment of Crime Victims Benefits” provides victims or families of deceased victims with crime victim benefits when compensation for damages is not received from the perpetrator. Eligible beneficiaries include victims who suffered serious injury or disability or surviving family of a person who died due to homicide or an intentional criminal act. Recovery of damages from confiscated assets The “Act on Recovery Payments to be Paid from Assets Generated from Crime” provides victims etc. with the right to recover damages from crime proceeds, or the equivalent value thereof, confiscated in the criminal proceedings including assets recovered from foreign countries. Damage-recovery benefit system The “Act on Damage Recovery Benefits Distributed from Fund in Bank Accounts Used for Crimes” pays damage-recovery benefits to victims of crimes such as fraud involving bank account transfers. It provides a procedure to nullify the perpetrator’s deposits and distribute them as damage-recovery benefits to the victims. International Cooperation in Criminal Matters 1. Extradition The requirements and procedures for extraditing fugitives from Japan are provided in the Act of Extradition. Pursuant to the Act, the requirements for extradition are that the offence in question must not be a political one, that the offence must be punishable by death, imprisonment for life or for a long term of three years or more, that the principle of dual criminality is recognized, that there is good reason to believe that the person in question has committed the offence, and that the principle of reciprocity is guaranteed, among others. When the person in question is Japanese, he or she may in principle not be extradited to another country. If there is a bilateral treaty, some requirements may be relaxed. Japan currently has extradition treaties with the USA and South Korea. Moreover, there are multilateral treaties with provisions on extradition to which Japan is a party, such as the United Nations Convention against Transnational Organized Crime and the United Nations Convention against Corruption. 2. Assistance in criminal investigation The requirements and procedures for assisting in a criminal investigation when a request for assistance has been received from another country are set forth in the Act on International Assistance in Investigation and Other Related Matters. Under the Act, the requirements for assisting in investigation are that the offence in question must not be a political one, that the principle of dual criminality should be recognized, and that the principle of reciprocity should be guaranteed, among others. Requests for assistance shall be made to the Minister of Foreign Affairs, which will be transmitted to the Minister of Justice. － 23－ Where there is a relevant bilateral or multilateral treaty, some requirements may be relaxed and a request may be made between the central authorities (in Japan, the Ministry of Justice for incoming and outgoing requests, and also the National Police Agency for outgoing requests). Japan currently has concluded bilateral and multilateral treaties with the USA, South Korea, the People’s Republic of China, Hong Kong, the EU and the Russian Federation. Moreover, a State Party to a multilateral treaty to which Japan adheres and which prescribes that it may be used as a legal basis of mutual legal assistance, may base its request to Japan on that treaty in accordance with the treaty requirements. Applicable multilateral treaty includes: the United Nations Convention against Transnational Organized Crime, the United Nations Convention against Corruption, and Convention on Cybercrime . － 24－