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Opinion Calling for Eliminating Hostage Justice

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November 17, 2020

Japan Federation of Bar Associations

The Japan Federation of Bar Associations compiled an opinion paper, “Opinion Calling for Eliminating Hostage Justice” dated November 17, 2020, and submitted it to the Minister of Justice.

Summary of Opinion

1. The detention and bail practice, in which suspects or the accused who maintain their innocence or exercise the right to remain silent are held in custody for particularly prolonged periods of time (described as “hostage justice”), is in contravention of the Constitution of Japan and international human rights law. Additionally, the practice hinders the search for the truth in criminal cases in conflict with the intention of the legislators who enacted the Code of Criminal Procedure (the “Code”). Therefore, the practice must be eliminated immediately.

2. In order to eliminate hostage justice, provisions to the following effect should be set out in the Code:

When making judicial decisions on detention or bail, in light of suspects’ and the accused’s right to a defense, the fact that they deny the commission of the alleged crime, refuse to undergo interrogation or make statements, or challenge the evidence tendered by the prosecution, must not be taken into consideration to the suspects’ or the accused’s disadvantage.

Additionally, Article 89(iv) of the Code, which stipulates one of the exclusion criteria for disqualifying suspects or the accused from getting mandatory bail (“[when] there is probable cause to suspect that the accused may conceal or destroy evidence”), should be deleted.

3. The electronic monitoring system and the house arrest system should be considered as options of alternative measures that are less restrictive on the premise that hostage justice will be eliminated and a bail practice in which the accused are released in principle will be in place. The electronic monitoring system and the house arrest system must be used only if necessary and limited to the minimum extent necessary.

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