JFBA Opposes Criminalization of Conspiracy

• Japanese

 

1. Basic Problems on Criminalization of Conspiracy

• The government explains that it has proposed newly introduction of conspiracy offences in order to ratify the United Nations Convention against Transnational Organized Crime (the Convention), mentioning that without enacting a law to criminalize conspiracy itself, Japan is unable to ratify the Convention and will draw international criticism.
• The Ministry of Justice had clearly stated that the criminalization of conspiracy does not consist with the principles of the Japanese domestic law in the deliberations on the draft Convention.
• The Penal Code of Japan basically punishes conducts which are detrimental to legal interests, and even attempts or preparations are exceptionally punishable. However, the government aims to punish conducts, which are at far prior stage to preparations, as conspiracy offenses.
• However largely the bill may be amended, the criminalization of conspiracy for over 600 offenses including those stipulated by the Penal Code still changes the Japanese criminal law system.
• Currently, co-principals are punishable for implied conspiracy. If the conspiracy itself is criminalized, the implied conspiracy forms conspiracy offences and the scope of punishment might be extremely broaden.
• For practically regulating the conspiracy, it is inevitable to widen the scope of immunity from criminal prosecution, investigations by undercover police agents, and application of the Law Authorizing Wiretaps in Investigations Involving Organized Crime by amending the law as well as to relax their procedures.
• Through the debate during the last Diet session and the media coverage, the criminalization of conspiracy has attracted interests of public and aroused discussion. The circumstances surrounding the bill have been radically changed.

 

2. What does the Convention require to the State Parties?

 

• Paragraph 1 of Article 34 of the Convention stipulates that each State Party shall take the legislative measures in accordance with fundamental principles of its domestic law.
• The UN Legislative Guide does not require legislation literally as the Convention stipulates and we understand that Article 5 of the Convention requires each State Party to undertake legislative measures which enable to take actions against organized crimes at the stage prior to attempts.

 

3. Ratification of the Convention

 

• The UN does not screen whether a state may ratify a treaty or not.
• Ratification of a treaty is solely an expression of a sovereign state to be bound by a treaty and there is no procedure of screening by the UN for ratification.
• Objectives of Conference of the Parties to the Convention established by its Article 32 are limited by Paragraph 3 of Article 32 to the international cooperation, the exchange of information, the cooperation with relevant international and regional organizations and non-governmental organizations, periodical reviews of the implementation of the Convention, and making recommendations to improve the Convention and its implementation, and thus, the Conference definitely does not have authority to screen whether a state may ratify the Convention or not.

 

4. How did the states which have ratified the convention take measures?

 

• During the 164th ordinary session of the Diet, the government did not give explanation to a question on domestic legislative measures undertaken by foreign countries, saying it did not know. The Office of International Affairs of the Japan Federation of Bar Associations (JFBA) researched the issue and found out the followings.
• Only a few countries including Norway have newly criminalized conspiracy.
• The United States of America made reservations to avoid the necessity of legislation by each state since laws of some states stipulate only limited conspiracy offenses.
• Currently, it is known that 5 countries (Brazil, Morocco, El Salvador, Angola, and Mexico) admit that in their domestic laws conspiracy offenses do not cover all serious crimes involving organized criminal groups.
• Saint Christopher and Nevis ratified the Convention without reservations by establishing conspiracy offenses of which prerequisite the transnational nature.

 

5. Japan is able to ratify the Convention without newly legislating conspiracy offenses.

 

• The Japanese domestic law regulates criminal conducts involving organized criminal groups as follows:

1. There are 58 preparation and conspiracy offenses which could punish at the stage prior to attempts. In addition, preparatory conducts for serious crimes such as unlawful meetings or assemblies with dangerous weapons are punishable as an independent offense. Therefore, a considerable range of conducts at the stage prior to attempts of serious crimes are punishable.
2. The Penal Code stipulates complicity, and there are also court precedents establishing co-principals of complicity leaving aside whether the JFBA supports such rulings or not. Therefore, participation in criminal conducts could be practically punished as complicity at considerable range.
3. Japan has ratified almost UN conventions for preventing terrorism and undertaken domestic legislative measures.
4. Japan has tight restrictions on some areas, which are stricter than those of U.S.A. such as strict restrictions on the possession of guns and swords.
   It is certain that Japan has already had the established law system required by the UN Legislative Guide to effectively prevent organized crime without new legislation.

 

• Therefore, Japan is able to ratify the Convention without newly criminalizing conspiracy which is proposed by the governmental bill and the revised bill of the ruling parties, and the conspiracy should not be newly established as criminal offences.

 

Japan Federation of Bar Associations
September 14, 2006