Reform of the Criminal Justice System

The current Japanese criminal justice system has various problems in light of the Constitution and international human rights law. The JFBA has engaged in a broad range of activities to reform and improve the criminal justice system, such as “transparency in interrogations” (audio/video recording of the entire process of interrogations) and the eradication of “hostage justice,” and other activities for the improvement of criminal procedures and the enhancement of the court-appointed defense counsel system.

[1] Expanding Transparency in Interrogations (Audio/Video Recording of the Entire Process) to All Cases

Interrogations at the investigation stage are conducted in “closed rooms” where the attendance of an attorney is not permitted. It is not uncommon that illegal and unreasonable interrogation tactics such as coercive pressure and dispensation of favors are used by investigators, resulting in suspects unintentionally confessing crimes they have not committed. Even if the suspect argues at trial that the interrogations were illegal or unreasonable, there are no means to objectively prove it so that it is possible that false charges could result. In order to avoid such situations, the JFBA has been demanding transparency in interrogations (audio/video recording of the entire process of interrogations).

In May 2016, the amended Code of Criminal Procedure was enacted, which mandates that by June 2019, the entire process of interrogations of suspects after detention shall be video recorded for certain cases: cases which are to be tried by lay judges and cases where the prosecutors conduct their own investigations. Nevertheless, the cases subject to audio/video recording remain less than 3% of all criminal cases. Also, in certain exceptional cases, audio/video recording is not required, such as where there is a malfunction of the recording equipment, or where the case involves members of an organized criminal group. Furthermore, interrogations of suspects who have not been arrested or witnesses (except for suspects) are also not subject to the audio/video recording.

The amended Code of Criminal Procedure provides in its supplemental provisions that the implementation status shall be examined and necessary revisions shall be made after 3 years from its enforcement. The recent amendment is the first step for audio/video recording of the entire process of interrogations in all cases. The JFBA will continue to demand that transparency in interrogations (audio/video recording of the entire processes) be expanded to all cases.

[2] Eradicating “Hostage Justice”

When compared to the other countries, the period of detention before indictment in Japan is relatively long, which can extend for up to 23 days after arrest. In theory any unsentenced person shall be detained at a penal institutions (detention center) under the jurisdiction of the Ministry of Justice, but in reality many are detained in detention facilities (detention rooms in police stations, daiyo-kangoku) operated by the investigating authority. The unsentenced persons are kept in the custody of the police night and day for interrogation.

Bail is not easily granted unless one admits to the charges. As the detention period becomes longer, the unsentenced detainee is isolated from his or her daily work and home for the period and suffers incalculable disadvantages. It is not uncommon that the suspects admit charges for which they are not responsible, only to escape from the long detention. As a result, such suspects, after being convicted, must go through great difficulties for a long period of time to clear false charges against them. Such situations are referred to as “hostage justice” in Japan.

The JFBA has been demanding the eradication of “hostage justice” and the reform of such pre-sentencing detention system through the abolition of the daiyo-kangoku system, introduction of the pre-indictment bail system, and the establishment of measures to secure a suspect’s appearance, and other activities.

[3] Establishing and Expanding the Court-appointed Attorney System for Suspects

In Japan, there was no court-appointed attorney system for suspects and most suspects were interrogated without the aid of defense counsel, which was said to be a major cause of human rights violations. In response, local bar associations across the country have launched the Duty Attorney (Toban Bengoshi) System since 1990, modeled after the duty attorney system in the U.K., to dispatch an attorney upon a request from arrested suspects in order to protect their human rights.

The JFBA has actively supported this movement, and with the expansion of the Duty Attorney System which was eventually implemented by all local bar associations, it has been urging the national government to establish a court-appointed attorney system for suspects.

Such activities have borne fruit and the court-appointed attorney system for suspects was launched in 2006, and the scope of cases subject to this system was expanded significantly in 2009. Subsequently, the Code of Criminal Procedure was amended in 2016, and by June 2018 the scope of cases subject to the system will be further expanded to “cases with respect to which a detention warrant is issued against the suspect.” The JFBA is demanding that the public defense system be further expanded to include suspects immediately after arrest and is preparing for such expansion.

[4] Improving the Saiban-in (Lay Judge) System

The Saiban-in (lay judge) system was introduced in May 2009 as part of efforts to increase public participation in the judicial system, under which six lay judges appointed from among the general public serve alongside three professional judges in examining cases involving certain serious crimes (any crime which is punishable by the death penalty, indefinite penal servitude or imprisonment, or an intentional criminal act causing the death of a victim which is subject to an examination by a panel of judges).

The JFBA makes recommendations to improve the criminal procedures and defense under the Saiban-in (lay judge) system based on examinations of the current situation. Furthermore, the JFBA also engages in activities to improve defense skills under the Saiban-in (lay judge) system.