Statement Calling for a Thorough Review by the Council on Renovation of the Legal and Prosecutorial Administration to Ensure that Japanese Criminal Procedure will Comply with the Constitution of Japan and International Human Rights Instruments
On July 16, 2020, the first meeting of the Council on Renovation of the Legal and Prosecutorial Administration was convened. At the beginning of the session, the then Minister of Justice made it clear that the Council was formed considering the recent debate that took place internationally over the Japanese criminal justice system, as well as the severely undermined trust and expectations Japanese nationals had placed in the Government, the Public Prosecutor’s Office, and the Ministry of Justice—a situation stemming from the issue of extending the public prosecutor’s term of office and the subsequent arguments over the amendment of the Public Prosecutor's Office Act. The Minister of Justice also stated that she would like to have the Council’s opinion on the triple issues of prosecutorial discipline, the transparency of the legal and prosecutorial administration, and the way the criminal procedure at large ought to be.
In regard to the cabinet decision extending the Superintending Prosecutor’s term of office and the issue of the amendment of the Public Prosecutor's Office Act that followed, the Japan Federation of Bar Associations (the “JFBA”) issued multiple statements expressing its opposition to these actions. The whole process involving the sequence of incidents should be verified as part of the issue of prosecutorial discipline and the issue of the transparency of the legal and prosecutorial administration. Meanwhile, in Japan, information leaks involving criminal investigations and remarks made by anonymous “senior prosecutors” have often led to media reports that jeopardize the presumption-of-innocence principle and the right to a fair trial. Under the circumstances, it should be stipulated clearly within the ethical standards of the Public Prosecutor's Office that the public prosecutors are forbidden from saying and doing anything that jeopardize the presumption-of-innocence principle or the right to a fair trial.
With respect particularly to the way the criminal procedure ought to be, the JFBA has reiterated for decades that it should be improved, underlining that the way the criminal procedure is performed in actuality is not in compliance with the Constitution of Japan as well as the international human rights instruments. For instance, detention and bail in Japan, described as “hostage justice,” holds the suspects and defendants pleading innocent under physical detention over a long period of time. This has the great potential to force citizens who committed no crime to make false confessions and leads directly to their giving up the innocence plea—a situation that may fall under “torture” prohibited by the Constitution of Japan as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Additionally, the interrogation practice of excluding the presence of lawyer not only compromises the right to silence and the right to counsel guaranteed by the Constitution of Japan, but also deviates from international standards. Such backwardness in Japanese criminal procedure was recently subjected to growing international criticism in the wake of an incident that attracted substantial public attention, and it is nothing short of the issue that has long been pointed out multiple times by the United Nations Human Rights Committee and the Committee against Torture.
In order to promote understanding of Japanese criminal procedure in the international community, its actual practice needs to be in compliance with the Constitution of Japan and international human rights instruments. Given that human rights violations arising from Japanese criminal procedure not being compliant with the Constitution of Japan and international human rights instruments take place each day, there is no room for procrastinating the correction of the procedure.
It has already been 10 years since it came to light that the public prosecutors belonging to the Special Investigation Department of the Osaka District Public Prosecutor’s Office tampered with evidence. The incident led to the establishment of the “Committee for Deliberating How the Public Prosecutor’s Office Ought to Be,” which discussed the reform of the Public Prosecutor’s Office across a wide spectrum. Regrettably, many of the same issues continue even today. The Osaka Public Prosecutor’s Office case should never be consigned to oblivion and hence, the JFBA urges strongly that the Council on Renovation of the Legal and Prosecutorial Administration fully review the relevant issues in order to develop a proposal to ensure that Japanese criminal procedure will comply with the Constitution of Japan and international human rights instruments.
October 5, 2020
President, Japan Federation of Bar Associations