Opinion on the Three-Year Review under Supplementary Provision 9 of the Code of Criminal Procedure
January 20, 2022
Japan Federation of Bar Associations
It is now almost three years since the amended Code of Criminal Procedure (the “Code”, as amended in 2016) came into full effect in June 2019. The Code passed the Diet after having undergone a “debate spurred by the remorse for miscarriages of justice that have repeatedly occurred” (citation from the supplementary resolution adopted by the respective Committees on Judicial Affairs of the House of Representatives and the House of Councillors). Accordingly, with the three-year review period elapsing, the implementation status of such amendment is now coming under review as provided in Supplementary Provision 9 of the Code.
Seeking further revision of the Code in order to fulfill the philosophy of the amendment, the Japan Federation of Bar Associations (the “JFBA”) compiled an opinion paper titled “Opinion on the Three-Year Review under Supplementary Provision 9 of the Code of Criminal Procedure” dated January 20, 2022, and submitted it on January 25, 2022 to the Minister of Justice; the Prosecutor-General; the Chief Justice of the Supreme Court of Japan; the Chairperson of the National Public Safety Commission; the Commissioner General of the National Police Agency; the Speaker of the House of Representatives; and the President of the House of Councilors.
Summary of Opinion
The JFBA urges that the following amendments to the statutes of the Code be deliberated in the three-year review which is due in accordance with Supplementary Provision 9 (1) and (2) of the Code:
- Expanding the scope of cases in which audiovisual recordings of interrogations are made, to each and every case and process;
- Introducing a new provision that sets out a right to have a defense counsel present during an interrogation;
- Introducing a new provision that prohibits drawing adverse inferences from the accused denying an allegation or remaining silent at a bail hearing;
- Expanding the scope of the application of the court-appointed defense counsel system to suspects who are placed under arrest but not sent a detention warrant;
- Improving the descriptions in the briefing materials provided to suspects to enable them to better understand the publicly appointed defense counsel system;
- (1) Strengthening the right to request that the pretrial conference procedure be conducted;
(2) Improving the evidence disclosure practice in the pretrial conference procedure; and
- Introducing a guilty plea system.
Supplementary Provision 9 (“Examination”) of the Code of Criminal Procedure
(1)When three years have elapsed from when the amendment to the Code took effect, the Government shall—in light of the fact that the audiovisual recordings, etc. of interrogations (which, in this Provision, refers to making audio and visual recordings of suspects’ oral statements and the circumstances in which they were interrogated, storing them on storage media and using them as proof) ensure exact proof of the voluntariness and other aspects of suspects’ oral statements, and contribute to conducting fair and just interrogations—examine how the regime relevant to the audiovisual recordings, etc. of interrogation should work, and, where deemed necessary, take appropriate action on the basis of the findings of such examination, taking into account the progress of the implementation of audiovisual recordings, etc. of interrogations and being mindful that audiovisual recordings, etc. of interrogations may entail disruption or other harmful effects in police investigations.
(2)When three years have elapsed from when the amendment to the Code took effect, in addition to the matters prescribed in the preceding paragraph, the Government shall also examine the progress of the implementation of the revised statutes of the Code after the amendment and, where deemed necessary, take appropriate action on the basis of the findings of such examination.