July/18/2003 JFBA Publishes President's Comment and the Opinion on Investigation Process

The Japan Federation of Bar Associations (JFBA) published President's Comment and the Opinion on criminal justice reform, especially the visualization (i.e. the electronic (audio and/or video) recording) of interrogations. During the criminal justice reform discussions, it is examined what the criminal procedure ought to be under the saiban-in system wherein laypersons would also serve as members of a judicial panel. Meanwhile, the supplementary resolution to the Speedy Trials Law points out the need to discuss the electronic recording of interrogations. Criminal justice reform is, therefore, an issue that goes beyond a mere introduction of the saiban-in system. In relation to the extradition of a U.S. serviceman stationed in Okinawa suspected of committing a crime, it was reported recently that the U.S. refused the extradition request partly because Japan's law-enforcement system was "so secretive that investigation authorities were quite capable of using coercive methods to extract confessions from suspects". In the light of these circumstances, the JFBA stressed in its President's Comment that the electronic recording of interrogations was an urgent issue. Also, the JFBA clearly expressed in its Opinion the importance of electronic recording and the counterargument to the argument against the establishment of recording requirements. I. President's Comment Points out Problems (Summary)     1. Japan's procedure below the international standard     The UN Human Rights Committee examined the degree of Japan's implementation of the International Covenant on Civil and Political Rights. In its concluding observations adopted in November 1998, the Committee urged Japan to reform its criminal justice system. The Committee expressed grave concern that Japan's criminal justice system contravened human-rights protections guaranteed to criminal suspects by the Covenant, pointing out the facts that: pre-indictment suspects were detained for as long as 23 days and were refused rights to seek release on bail; there was no restriction on when and how long interrogations of suspects were conducted; and interrogations were conducted without the presence of attorneys. In many countries including the U.S., Russia and European countries such as the U.K., France and Italy, suspects are entitled to demand the presence of attorneys during interrogations. It, therefore, can be argued that this is a minimum standard of treatment for suspects.   2. World trends toward mandatory audio/video recording of interrogations     The U.K. has required audio recordings of all interrogations since 1984, reflecting on the fact that false accusations have been made against innocent persons forced into a confession. Italy enforces a rule that written statements are admissible at trial only if those statements are audio/video recorded. Some U.S. states require audio/video recordings of interrogations. France imposes video recording requirements for juvenile interrogations. The transparency in the interrogation process is, thus, becoming a critical issue worldwide.   3. Aiming at compliance with the international standard of criminal procedure     The electronic recording of criminal interrogations is essential to achieve the international standard of judicial proceedings and to speed up trials. The government of Japan should immediately review Japan's criminal procedure in its entirety with due consideration to the recommendations of the UN Human Rights Committee and recent world trends. II. JFBA Opinion Opposes to Argument against Electronic Recording of Interrogations     Outline of JFBA Opinion     i. Electronic recordings are essential to the effective operation of the saiban-in system. ii. Merits of electronic recordings Electronic recordings would relieve public prosecutors of the burden of proving that confessions were made voluntarily and would drastically reduce illegal interrogations. iii. Opposition to the argument against electronic recording   a) There is no possibility to hinder the investigation of the truth.   b) There is no connection to the arguments on any theory on investigation mechanism. iv. Written records of interrogations are insufficient and would cause confusion. v. Electronic recordings need to be made throughout the interrogation process.