Declaration Calling for the Establishment of the Right to Have the Assistance of Counsel: Counsel’s Presence at Interrogation Changes the Criminal Justice System

• Japanese

 

The Japanese criminal justice system is under scrutiny, drawing renewed criticism, both national and international, for not meeting internationally recognized standards.

Over the years, in fact, the Japanese criminal system has been undergoing significant reform. For instance, suspects today are entitled to have the assistance of court-appointed counsel from the detention phase and onwards. The minimal number of detention warrants rejected by courts is also showing a tendency, albeit slight, to increase. Visualizing interrogations (meaning audio/video recording of the entire questioning process) is now mandatory, albeit for limited cases, thereby shedding a first beam of light into the interrogation room and enabling verification after the fact. Furthermore, the implementation of the saiban-in (lay judge or quasi-jury) system has offered a prospect of improving the manner of trial proceedings sarcastically termed “documentation trial” (describing the situation where written records drawn up from narrative accounts given by the suspect have an unduly strong bearing in trial), and created a likelihood of realizing trial proceedings where the principles of immediacy and orality are reified.

Having gone through these reforms, however, the interrogation-centered investigation and the detention of suspects, dubbed “hostage justice,” continue to be the bedrock of Japanese criminal proceedings. Unlike in many other countries and regions, in Japan attorneys are not allowed to attend interrogations. The police officers and prosecutors conduct questioning over a long period of time, forcing the suspect to give accounts in line with the interrogator’s view, while the constitutional right to remain silent is difficult to exercise even now. The fact that the Japanese government has received Recommendations, etc. several times from the United Nations Human Rights Committee and the Committee Against Torture, indicates a pressing need for a drastic reform in the “fairly daunting” (as a Japanese jurist remarked) criminal justice system in Japan.

Therefore, at this point in time, it is required that the scope of visualizing interrogations (meaning audio/video recording of the entire questioning process) be expanded to encompass all cases, and that the constitutional right to have the assistance of counsel be reified by spelling out the right to counsel’s presence at interrogation as well as guaranteeing the opportunity to have the advice of counsel before questioning. Counsel’s presence during interrogation will—correlating with the audio/video recording of the entire interview that enables verification after the fact—provoke a series of fundamental changes in the Japanese criminal justice system: If counsel monitors the interrogation of a suspect beside him or her, raising objections to inappropriate questions, it will help prompt the suspect to develop independence; counsel’s presence at interrogation rooms will help deter the investigative agencies from conducting illegal or unjustifiable interrogations, thereby reducing the risk of false confession; exercising the right to remain silent will become easier, so that the suspect's freedom of speech will be guaranteed in the true sense; the dossiers drawn up from the narrative accounts given by the suspect (termed Recorded Statement Documents) will no longer be produced unless necessary, which will help decrease the use in trial of these documents, which are actually crafted by interrogators in the investigative phase; this will eventually disconnect the trial from the investigation and bring about trial proceedings further grounded in the principles of immediacy and orality. Thus, the counsel’s presence at interrogation should be deemed as a practical issue, not as a challenge for the future.

Meanwhile, to pry open the interrogation room door which has been shut tight, bar associations are required to undertake nationwide initiatives to develop a framework addressing these issues, which should also be combined with diligent effort by individual lawyers, such as enhancing the role and techniques performed when attending interrogations, challenging the investigative agencies to allow his or her attendance, and if it was rejected, bringing into question the validity of the evidence, including the Recorded Statement Documents.

The Japan Federation of Bar Associations (JFBA) observes that one of the most critical challenges in reforming the Japanese criminal justice system is to fix the issues lying in the investigative phase. We also uphold our belief that the reform must be started by lawyers themselves. From these perspectives, the JFBA issued the Declaration of Matsue (Declaration of the 40th Anniversary of the Japanese Criminal Justice System) at the Convention on the Protection of Human Rights in 1989, thereby commencing our proactive initiatives to improve the criminal justice system, including the inception of the Criminal Defense Center and the launch of activities of on-duty attorneys. The major reform described earlier is the achievement earned through the dedicated practice of numerous defense attorneys over 30 years following the Declaration of Matsue, as well as the supporting initiatives developed by the JFBA and local bar associations. We are committed to verify the current situation and issues of the Japanese criminal justice system, and strive for sustained reform in light of the Constitution of Japan and international human rights law, while watching the latest developments in the EU, the USA, Korea, Taiwan, and other foreign countries.

Under these circumstances, the JFBA resolves that it will endeavor might and main to achieve the following aspirations:

• Expanding the scope of visualizing interrogations (audio/video recording of the entire questioning process) to encompass all cases.
• Guaranteeing the opportunity for suspects to have pre-interrogation counseling by a lawyer to ensure that the constitutional right to have the assistance of counsel is reified.
• Ensuring that the court appointed counsel system is applied to suspects immediately after their arrest.
• Reforming the detention system (including strict application of the principle prohibiting the use of physical restraint devices in court, introducing the court order of Home Detention, etc. as an alternative system replacing detention at detention center, introducing pre-indictment bail, reducing the detention period, and regulating the length of interrogation)
• Enhancing the evidence disclosure system encompassing pre-indictment disclosure.
• Establishing the right to counsel’s presence at interrogation.

In addition to the above, we request as follows:

1. 1. That the government modify the Code of Criminal Procedure so that it will spell out clearly that the public prosecutors, public prosecutors’ assistant officers, or police officers must allow counsel’s presence at interrogations, if the suspect or counsel so requests.
   2. That the Prosecutor General and the Commissioner General of the National Police Agency authorize, for a period until the legal amendment as described in item 1. is legislated, counsel’s attendance at interrogations, if the suspect or counsel so requests.

The JFBA proclaims as above on this occasion of the 70th anniversary of the promulgation of the Code of Criminal Procedure, the 30th anniversary of the publication of the Declaration of Matsue, and the 10th anniversary of the introduction of the saiban-in trial.

October 4, 2019
The Japan Federation of Bar Associations