Opinion concerning the Establishment of the New Criminal Justice System (No.3)
September 13, 2012
Japan Federation of Bar Associations
The Japan Federation of Bar Associations (“JFBA”) has prepared its“Opinion concerning the Establishment of the New Criminal Justice System (No.3)”dated September 13, 2012, and submitted it to the Minister of Justice and the chairperson of the“Subcommittee on the Criminal Justice System for a New Era”under the Legislative Council of the Ministry of Justice.
(Improvement of the systems concerning detention and bail)
1. Taking into account the fact that detention of a suspect is a serious restriction of human rights and also that some confessions resulting from such detention have been forcefully obtained, it should be ensured that the system of detaining suspects and defendants is only utilized in exceptional cases. Further, in order to avoid the situation in which non-offenders are detained merely because they have denied the charges or suspicions laid against them and in which such non-offenders have been forced into making false confessions in exchange for their freedom, the systems concerning detention and bail should be improved as described below:
(1) For trials in relation to detention or bail, taking into account the right to defense held by suspects and defendants, the following facts should not be considered unfavorable to such suspects or defendants: i) the fact that they have denied the charges against them, ii) the fact that they have refused to be interrogated or make a statement, and iii) the fact that they have refused to agree to provide evidence items requested by prosecutors.
(2) For trials in relation to detention or bail, the following should be considered: i) the seriousness of the crime committed, and ii) the degree of disadvantage which may be caused to such suspect or defendant in terms of the right to defense as well as their social standing, which have resulted from the fact that they have been detained.
(3) In terms of the measure which should be established in place of detention, a system of orders should be instituted restricting certain actions of the relevant suspect or defendant, for instance, a restriction order which keeps such suspect or defendant at their residence, and only when the purpose cannot be achieved by issuing such order should such suspect or defendant be able to be detained.
(4) Other than with respect to the factors mentioned above, the Code of Criminal Procedure should also be revised concerning; i) the criteria and requirements relating to grounds for exceptions concerning the right to bail, ii) the right to have a defense attorney present while questioning is conducted prior to detention, and iii) the systems of “appeal against a ruling for detention”, and “bail before indictment”.
(Guarantee of the opportunity for suspects to obtain advice from a defense attorney prior to undergoing interrogation)
2. There should be a guarantee of the opportunity for an arrested suspect to obtain advice from a defense attorney before he/she undergoes an interrogation, and if such suspect has made such request, he/she should be able to meet such defense attorney prior to the interrogation being conducted by the police. In order to bring about the realization of the above guarantee, a system should be established through public funds allowing arrested suspects to request the dispatch of a defense attorney.
(Expansion of the right in which detained suspects are allowed to request a public-appointed attorney)
3. It should be approved that there exists a right guaranteeing a suspect the ability to file a request for an appointment of a defense attorney for any case regarding which a detention warrant has been issued. Therefore, in relation to Article 37-2 of the Code of Criminal Procedure, which stipulates that “When a detention warrant is issued to a suspect for a case that is punishable by the death penalty, life imprisonment, or imprisonment with or without labor for more than three years as the maximum term of punishment, and if he/she may file a request for the appointment of a defense attorney and if he/she is unable to appoint a defense attorney due to indigence or on any other grounds, the court shall appoint a defense attorney for such suspect as he/she has requested….”, such provision should be amended by deleting the portion which states; “for a case that is punishable by the death penalty, life imprisonment, or imprisonment with or without labor for more than three years as the maximum term of punishment.”