Statement Calling for Proper Operation of the Bail System Concerning Enactment of the “Bill Partially Amending the Code of Criminal Procedure and Other Acts”
Today, the Bill Partially Amending the Code of Criminal Procedure and Other Acts was passed into law. The Bill contains actions such as introducing provisions to ensure the appearance of defendants on trial dates and the execution of judicial decisions.
As pointed out by the Japan Federation of Bar Associations (the “JFBA”) in its “Opinion Calling for Eliminating Hostage Justice” dated November 17, 2020, suspects and defendants who maintain their innocence or exercise the right to remain silent are kept detained for a prolonged period of time under detention and bail practice in Japan. Such detention or bail is used as a means to coerce confessions from suspects and defendants, making it difficult for them to maintain their innocence. The practice unjustifiably takes away freedom from citizens, including those who are innocent, and constitutes a violation of the ban on torture, as well as a violation of the Constitution of Japan and international human rights law. Additionally, it hinders the search for the truth in criminal cases, which is in conflict with the intention of the legislators who enacted the Code of Criminal Procedure. It is therefore imperative that this practice be promptly changed.
The United Nations Human Rights Committee has stated in its General Comment No.35 adopted in 2014 that courts must examine whether alternatives to pretrial detention, such as bail, electronic bracelets or other conditions, would render detention unnecessary in a particular case. Such alternatives, including monitoring the movements of defendants who are released from custody through devices such as GPS trackers and implementing a house arrest system under which released defendants must wear a tracking device and not be allowed to leave their residence, have been adopted in other countries. On the other hand, when it comes to Japan, there were no provisions in the Code of Criminal Procedure prescribing measures to ensure the appearance of defendants on trial dates as alternatives to detention, other than those under Article 93, Paragraph 3 which allow for the residence of the defendant to be specified or for other appropriate conditions to be added to the bail, and those of Article 95 which allow for the defendant under detention to be entrusted to a relative, shelter organization or other person or for the residence of the defendant to be specified while making a ruling to suspend the execution of detention.
The enactment of the Bill has established the following: a crime against those who are released on bail and fail to appear on their trial dates; a crime against those who are granted bail on the condition that they remain under house arrest but are found to have left their residence without justifiable grounds; a reporting order system which requires those who are released on bail to report their working and living situations and other matters; a supervisor appointment system; and the allowance of the use of location tracking devices to track the movements of those who are released on bail. The direct aim of establishing these provisions is to ensure the appearance of defendants on their trial dates, and it goes without saying that they must be implemented in such a way which ensures that they will not cause any further human rights violations. Nevertheless, these provisions will significantly enhance alternative measures to detention compared to those under conventional practice. Current bail and detention practice in Japan is causing serious human rights violations on a daily basis, and must be changed as a matter of urgency.
For these reasons, the JFBA calls for using the enactment of the Bill as an opportunity to change the practice of continuing the extended detention of those defendants who maintain their innocence or exercise the right to remain silent. In addition, the JFBA reiterates its strong call for the proper operation of the bail system in compliance with the Constitution and international human rights law.
May 10, 2023
Motoji Kobayashi
President of Japan Federation of Bar Associations
