Japanese justice: Innocent until proven guilty or innocent until detained?


It’s been a month since ex-Nissan chief Carlos Ghosn’s dramatic escape shoved the Japanese justice system back into the global spotlight. Critics have long called Japan’s extended detentions and other legal practices “hostage justice” and an affront to international standards.

The Justice Ministry has since fought back with a bilingual question and answer section on its website. It says that the courts — not the police or prosecutors making the requests — agree to extend detention periods only if it is determined a suspect might destroy evidence or flee.

Here are some of the key questions being raised in the hostage justice debate.

How long can one be held under arrest?

Under the Code of Criminal Procedure, suspects can be detained up to 23 days before public prosecutors must decide whether to indict.

When a person is arrested, the police have 48 hours to investigate before handing the case over to prosecutors.

Prosecutors then decide within 24 hours whether to seek court permission to detain the person for up to 20 more days before making a decision on indictment.

Many critics point out the fact that detention periods can be perpetually extended if police and prosecutors issue fresh arrest warrants based on related crimes — a practice that was condemned by Human Rights Watch in a notice co-signed by over 1,000 Japanese legal professionals in 2019.

In the United Kingdom, suspects in terrorist attacks can only be held for up to 14 days unless charges are laid. People suspected of other crimes can only be held four days.

In South Korea, on the other hand, police and prosecutors can hold a suspect for a maximum of 30 days before indictment, except for a limited number of cases where extensions are permitted.

Shoji Sasaki, a senior official in the Justice Ministry’s criminal affairs bureau, said the 23-day detention period is needed so prosecutors can gather hard evidence and complete the investigation so the suspect can be tried in court.

“In other words, if they fail to gather sufficient evidence, they don’t pursue the case,” Sasaki said.

Judges allow the maximum detention period when there is probable cause and prosecutors need more time to gather evidence, he said.

But critics of the system say that the practice of prolonging detention prior to indictment is actually a strategy prosecutors use to elicit confessions.

Once indicted, it is possible to be freed on bail. But if a court determines the defendant is a flight risk or might destroy evidence, bail is rejected and detention continues — from the start of the trial until the sentence is finalized.

Do suspects have any guaranteed rights during interrogation?

The law and the Constitution guarantee a suspect’s right to remain silent and consult with an attorney without the presence of prosecutors or the police. If a suspect doesn’t speak Japanese, he or she has the right to have an interpreter present during interrogation.

But what is not granted under Japanese criminal procedure, unlike many other countries, is the right to have a lawyer present during interrogation. This decision was made in 2013 after three years of deliberation by the Justice Ministry’s legislative council.

The panel concluded the presence of a lawyer would hinder the interrogation process and make it difficult to obtain sufficient statements from suspects.

The right to have a defense lawyer present during interrogation is granted in most developed countries, including the United States, the United Kingdom and the European Court of Human Rights.

In Japan, lawyers can talk to someone under arrest but cannot access the suspect’s written testimony. The testimony is actually compiled by the interrogators and presented to the suspect to sign.

It is only after the prosecutors, defense lawyers and the court discuss which evidence is admissible for trial that the written testimony can be accessed.

Are the interrogations recorded?

After the Criminal Procedure Law was amended in 2016, interrogations used in cases bound for lay judge trials, in those investigated independently by public prosecutors and in white-collar crime investigations like Ghosn’s must be recorded on video, a practice already in place in the U.K., France, Australia and a number of U.S. states.

But according to the Japan Federation of Bar Associations, less than 3 percent of all criminal cases fall into these categories, and false accusations remain rampant in judicial proceedings where interrogations are not taped.

Moreover, judges in Japan are not required to verify the recordings.

But Sasaki, the ministry official, said the content of such videos can be disclosed if requested by the defense team during the trial.

What is behind Japan’s 99% conviction rate?

The conviction rate is actually 99.3 percent, but the indictment rate is 37 percent.

The Justice Ministry argues that its public prosecutors are the justice system’s strict gatekeepers. Only cases highly likely to win a conviction go to court.

“I know there are people who believe courts should decide whether the accused is guilty or not,” said Sasaki. “But the mindset behind the current system is that prosecutors want to prevent suspects from being indicted in the first place if there is a chance that he or she will be acquitted,” Sasaki said.

“Prosecutors pursue the 99 percent rate and I believe the nation accepts this practice,” he said.

“The remaining 0.7 percent of cases ending in not guilty rulings are proof that (judges) thoroughly examine these cases,” Sasaki said, adding that courts must document their reasoning on paper.

Looking at other countries, the conviction rate for federal cases in the U.S. was 90.7 percent in 2016, and 87 percent for England and Wales from July 2018 to June 2019.

Do prosecutors have too much power?

Lawyer Nobuo Gohara, a former prosecutor who is a vocal critic of his nation’s legal system, says the nearly absolute power wielded by Japan’s public prosecutors is the driving factor behind its criminal procedures.

“From my own experience, judges have a tendency to uphold assertions of the prosecution,” he said at a news conference in Tokyo in January.

Gohara, who is familiar with Ghosn’s case, said this is especially true in cases initiated by the prosecutors’ so-called special investigation squads.

“An arrest automatically means indictment” in pursuit of conviction, he said.

In fact, according to the Justice ministry’s latest white paper on crime, 91.8 percent of public prosecutors’ requests to extend detention were approved by Japan’s courts last year.

While Japan doesn’t have an act specifying a deadline for courts to set a trial, Article 37 of the Constitution guarantees defendants the right to a speedy trial.

Gohara described these extended detentions as “leverage to extract a confession from suspects that contravenes the principle of innocent until proven guilty.”

Contributing writer Enzo DeGregorio assisted with this report.



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