Statement Concerning the Enactment of the “Act to Partially Amend the Code of Criminal Procedure and Other Acts” including Mandatory Transparency in Interrogations
The Bill to Partially Amend the Code of Criminal Procedure and other Acts, which includes an obligation to take audio/video recordings of the entire process of interrogations, was passed into law today.
This act (the “Act”) was drafted on the basis of the report unanimously agreed at the “Special Subcommittee on the Criminal Justice System for a New Era" of the Legislative Council of the Ministry of Justice, which included various experts as its members, after discussions thereon took place for approximately three years.
Over the years, the Japan Federation of Bar Associations (the “JFBA”) has called for the reform of criminal justice system, including continually seeking the realization of transparency of the entire process of interrogations for all cases. Among the amendments that were made this time, it is to be noted that audio/video recording for the entire process of the interrogation of arrested or detained suspects has now become mandatory, in principle, not in all cases but in the cases to be tried by lay judges and those in which public prosecutors conduct their own investigations. Furthermore, the amendments include the expanded application of the court-appointed attorney system to all pre-indictment cases in which suspects are detained, an expanded system for the disclosure of evidence, such as the provision of evidence lists of the prosecutors, and clarification of the circumstances that should be taken into consideration when the court makes judgments on discretionary bail. In view of such multiple important systemic reforms being introduced, the Act, as a whole, can be evaluated as having marked one strong step forward in the reform of the criminal justice system.
Another notable aspect of the Act is the adoption of varied evidence-collection methods, as seen in the expansion of the permissibility to wiretap communications, the system for the collection of evidence with cooperation by a suspect under the agreement on prosecution, and others. Having expressed its opposition to the easy expansion of the permissible scope of wiretapping communication, the JFBA is going to strictly monitor whether the requirements: (1) that it would be very difficult to collect the evidences without wiretapping; and (2) that wiretapping shall target the communications which relate to an organizational crime; are construed and applied in a legitimate manner. Further, the JFBA will exercise its continuous efforts in establishing a system such as an independent monitoring institution in order to prevent unjust violations of privacy or secrecy of communications. In the meantime, regarding the new evidence-collection system under agreement, the JFBA will closely observe how the credibility of the statements given under agreement is evaluated, with due consideration to the risk of implication of an innocent person for the purpose of reduced charges, to ensure that such system does not cause any miscarriages of justice.
In addition, the audio/video recording of the interrogations for an accused who is detained in another indicted case (an issue which was subject to discussion during the deliberations in the House of Councilor’s Judicial Affairs Committee) should obviously also be regarded as mandatory, as this precisely falls under the situation in which a “detained suspect” is interrogated in the same manner as in the interrogation for a suspect in other pre-indictment cases. The application of the Act will also have to be strictly monitored from the perspective of ensuring that the scope of required audio/video recording should not be wrongfully limited.
In order to establish a criminal justice system which prevents the bringing of false charges, the JFBA will provide training to the JFBA's members to enable them to properly practice under the new system. In addition, in view of the fact that the system is expected to be reviewed three years after the enforcement of the Act, and in order to resolve the remaining issues, it is essential to continuously collect and analyze details of actual cases useful as legislative facts in order to bring about the realization of fully transparent interrogations of suspects in every single case, while at the same time, the information on the actual circumstances of the criminal justice system should be broadly informed to the public. Moreover, sustained efforts must be directed toward achieving remaining goals such as: (i) Further expansion of the system for disclosing evidence; (ii) Enhancement of the system for disclosing evidence in the proceedings for retrial requests; (iii) Improvement of the detention and bail system; (iv) Provision of a guarantee to grant suspects an opportunity to receive legal advice prior to interrogations; and (v) Establishment of the right to have counsel present for interrogations.
The JFBA hereby expresses its determination to commit to making every effort to advance the reform process together with the public and relevant parties, as well as all attorneys and bar associations throughout Japan.
May 24, 2016
Japan Federation of Bar Associations