Opinion Calling for Eliminating Hostage Justice
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 practice of detention for quite prolonged periods of time and bail, which is applied to suspects or accused persons who plead innocent or exercise the right to remain silent (hereinafter referred to as “hostage justice”), is in contravention of the Constitution of Japan and international human rights law. Additionally, given that hostage justice impedes the discovery of the truth of the cases, in conflict with the intention of the legislators who enacted the Code of Criminal Procedure, the practice must be eliminated immediately.
2. In order to eliminate hostage justice, lines to the following effect should be set out in the Code of Criminal Procedure:
In making judicial decisions on detention or bail, in light of the suspects’ and accused persons’ right of defense, the fact that they deny the charge, or reject to undergo interrogation or make statements, or challenge the evidence proffered by a prosecutor, must not be taken into consideration to the suspects’ or accused persons’ disadvantage.
Additionally, Article 89, item (iv) of the Code of Criminal Procedure, which specifies an exclusion criterion for disqualifying the suspects or accused persons from getting mandatory bail as “there is probable cause to suspect that the accused may conceal or destroy evidence”, should be deleted.
3. On the premise that hostage justice will be eliminated and that granting bail in principle to accused persons will be put into practice, instituting an electronic motoring system or home confinement system should be considered as an alternative measure less restrictive than physical detention that imposes, only if necessary, minimum restrictions.