KEYNOTE ADDRESSTENTH REGIONAL SEMINAR ON GOOD GOVERNANCE FOR SOUTHEASTASIAN COUNTRIES
Keisuke Senta*I.

INTRODUCTION

At the outset, I would like to say that it is really a great honour and privilege for me
to be given an opportunity to deliver the keynote address in the presence of suchhonourable guests, learned experts and distinguished participants gathered here in
Yogyakarta for this meaningful occasion. UNAFEI is truly grateful as to the efforts
made by all those who have been involved in the planning, preparation andimplementation of this Tenth Regional Seminar on Good Governance. I would like toexpress special thanks to the staff members of the Attorney General’s Office of the
Republic of Indonesia and the Corruption Eradication Commission, KPK, for theirtremendous job of co-hosting, as well as their kindness and hospitality. I am really
happy to be here in this peaceful, cultural city.
Each year, the purpose of this seminar is to discuss and share with each otherexperiences, information and insights about investigation, prosecution and prevention ofcorruption cases.
This year, under the umbrella theme “Contemporary Measures for Effective
International Cooperation”, we are focusing on four discussion topics:
1.

International cooperation in generating leads;

2.

Best practices for international cooperation in investigating corruption cases;

3.

International cooperation in the trial of corruption cases; and4.

International cooperation relating to asset recovery.

Thus the discussion is expected to cover various stages in the investigation ofcorruption cases, from a very early stage of investigation where officials start working
based on leads they obtain, through the more advanced stage of collecting evidence thatwill be admissible in court and relevant and credible enough to obtain a conviction withproper punishment, to the possible final stage where you try to repatriate the proceeds ofcorruption that are located overseas.

* Director, United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of

Offenders.

This morning, as one of the keynote speakers, I would like to share my thoughts
and experience on the investigation, prosecution and trial of crimes involving
transnational elements. As I am already approaching sixty, and therefore not very
familiar with the leading edge technology, I will focus more on how to effectively utilize
the conventional system of international cooperation, especially mutual legal assistance,
But before going into the main part of my presentation, I would like to talk briefly
about my professional background, so that you can better understand my perspective oninternational cooperation this morning.
My background is prosecution. I started my career as a public prosecutor in 1987,
starting in the Tokyo District Public Prosecutors Office. In 1990, I went to Vienna tojoin the Crime Prevention and Criminal Justice Branch of the United Nations Office at
Vienna, the predecessor of the United Nations Office on Drugs and Crime (UNODC).
My work in Vienna included assisting in the intergovernmental negotiation to establish
the Commission on Crime Prevention and Criminal Justice, which presently meets every
year in spring in Vienna. I went back to Japan in 1992 and worked in the Chiba District
Public Prosecutors Office. In 1995, I was dispatched to Brussels, Belgium, to work as
the legal attaché in the Japanese Mission to the European Union. My main task was tofollow the then developing EU scheme on international cooperation in criminal matters.
In 1997, I went back to Tokyo to work in the International Affairs Division, Criminal
Affairs Bureau of the Ministry of Justice. My job included processing various mutual
legal assistance and extradition requests, both incoming and outgoing, and the negotiationof several international instruments, such as the United Nations Convention against
Transnational Organized Crime, and the mutual legal assistance treaty between Japan andthe United States. In 2000, I went back to prosecution and worked in Tokyo and Oita, anice region on Kyushu Island. In 2003, I was transferred to the United Nations Asia andFar East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI),
and worked first as professor and then as deputy director. In 2007, I joined the UNODC
as a senior legal expert of the Terrorism Prevention Branch and worked in its regional
office in Bangkok, Thailand. I went back to Japan in 2009 and became a professor at
the University of Tokyo, and taught its law school students practical criminal procedure.
In 2013, I again joined the prosecution and worked as a prosecutor at the Tokyo High
Public Prosecutors Office, as director of the Trial Department of the Tokyo District Public
Prosecutors Office, as a prosecutor at the Supreme Public Prosecutors office, and as theChief Prosecutor of the Saga District Public Prosecutors Office, which is located on
Kyushu Island. In April of this year, I came back to UNAFEI as its Director.
So in short, I have been going to, from and between actual prosecution business andinternational cooperation matters. Now I would like to proceed to the main part of mypresentation: international cooperation.
II.

PURPOSE OF INTERNATIONAL COOPERATIONThe notion of “international cooperation” is very broad. Meetings and courtesy
or study visits of anti-corruption agencies, and international seminars such as the presentone are also forms of international cooperation. However, this morning, I would like tofocus on one aspect of international cooperation, i.e., cooperation among national
agencies to collect, or to assist in collecting, information or evidence useful for theinvestigation of specific cases, or to recover, or to assist in recovering, the assets orproceeds of crime. Here I said “information or evidence”, deliberately omitting theword “perpetrator”. My intention is to set aside the question of extradition, which
involves many different issues, and to concentrate on the issues of mutual legal assistanceand, to some extent, asset recovery. However, most of the points I am making thismorning will also be applicable to extradition procedure.
Thus, when I say“international cooperation” in my remarks this morning, I am using this term in thisnarrow sense.
Finding in the course of investigation something which smacks of transnational
elements is always a discouraging moment for investigators or prosecutors. In theirview, which is not always wrong, obtaining evidence from beyond national boarders issomething which requires a lot of paperwork and advanced knowledge of internationallaw and foreign language, at least English, and takes a very long time; all the efforts andtime consumed are likely to be worth nothing, getting no positive result at all. Manyotherwise competent investigators just stop thinking once they know that evidence islocated outside their country.
In order to cope with crimes in this internationalized world, we have to change thismindset. At the same time, we should not be too naïve to believe that goodwill and hard
work will solve all difficulties. We have to face the challenges arising from thedifference of national laws and customs, and sometimes complex diplomatic issues.
In order to effectively investigate crimes with transnational elements, it is always agood idea to go back to the very basis and ask ourselves why and what we need fromoverseas.
In short, investigators and prosecutors try to obtain any of the following three:evidence; information; and/or assets.
We need evidence to prove specific crimes in the courtroom, and obtain punishment
corresponding to the gravity of such crimes. It must be admissible in our courts under
our national evidence law, and it must have material value to convince the court that eachspecific element of the crime required by our penal law exists beyond a reasonable doubt.
We need information that may lead us to start investigating some offences, or that
may help us decide the course of the investigation. In many cases information is alsoessential in preventing future crimes.
As for the assets, I do not think any explanation is needed. However, repatriating
the asset is the most difficult part.
Before taking steps to ask for international cooperation, we should be sure what weneed: evidence, information or assets.

III. INFORMATION AND EVIDENCE
As I have just said, prosecutors need evidence to establish their cases. It should
be admissible according to the evidence law, and it should have material value andcredibility to prove the essential elements of the crime. In any country, prosecutors andinvestigators are working under natural instinct to collect as many items of evidence aspossible. They have a big appetite for evidence. Those of you who are investigators
but not prosecutors must have experienced some difficult times to meet the prosecutors’
endless demands for more and more evidence to make your case.
However, when it comes to evidence outside your borders, it is sometimes
necessary to follow the teaching of Zen: “I am content with what I have1 ”, slightly
revised as “I am content with what I can get”. Or you may wish to follow a Latin
proverb; “Si non adsunt carnes, taricho contentos esse oportet: If you do not have meat,be satisfied with dried fish”. In developing strategies to prove the case in the courtroom,
prosecutors should carefully study and evaluate all evidence they have, and logicallyconstruct an argument based on the evidence that is persuasive enough to convince thejudges to render a conviction.
For example, in bribery cases, investigators and prosecutors interview both bribetakers and bribe givers. If a policeman brings an active bribery case (offering of a bribe)
to a prosecutor without interviewing a bribe taker, the prosecutor will definitely ask thepolice to interview the bribe taker. In domestic investigation, it is unimaginable that theinvestigators bring charges against bribe givers without interviewing bribe takers.
However, in cases involving bribery of foreign public officials, i.e., the bribe takers,“foreign” public officials, are usually residing in a foreign country. You have to resort
to mutual legal assistance procedure in order to conduct the interview of the bribe takers,
which is not always possible. Even in such cases, prosecutors might proceed toprosecute the bribe givers based on evidence they have obtained in their country, such as
statements of bribe givers (confessions), financial records showing the flow of money,
contract documents and statements of employees who engaged in the business transaction,and so on. However, prosecutors have to prove that the bribe takers were actually public
officials of the foreign country, and to do so they need to obtain some documents fromthat country establishing that the bribe takers were in fact its public officials. But I think
you can imagine that obtaining documents through mutual legal assistance is much easierthan obtaining statements of bribe takers. In the presentation of my colleague Mr.
Yamada tomorrow afternoon, you will see what Japanese prosecutors did in a similar
situation.
Now moving on to the issue of information, there are several types of informationin terms of how we make use of it. Some information lets us know something wrong isgoing on and there is a need for (sometimes urgent) action to prevent crime. Althoughobtaining and properly processing this kind of information is very important, we need
1

There is a famous stone washtub in Ryoan-ji temple (famous for its stone garden) on which this dictum
is engraved in Chinese characters.

special techniques and organization similar to intelligence gathering to deal with this issue,
and I have to admit that I am not the best person to speak on this topic.
The second type of information tells us that we should consider starting an
investigation of an offence that has not yet been discovered by the criminal investigators.
Upon reading suspicious transaction reports furnished by the Financial Intelligence Unit
(FIU), an investigator might consider gathering more information on certain high ranking
officials for a possible bribery offence. After the initial investigation on this suspicious
case, the investigator may be able to step into a more advanced stage of investigation, and,with some luck, may be able to prosecute and obtain a conviction.
When you hear the word “information”, usually you imagine the situation like theone I just mentioned above, and in most cases international exchange of these types of
information is conducted outside the framework of mutual legal assistance.
However, during the course of the investigation of specific offences, when theinvestigators or prosecutors are focused on gathering evidence, they are also dealing withenormous amounts of information.
Here, let me introduce a hypothetical case, let’s call it the “Seasons Case”, toelaborate my point in a more illustrative manner.
The Seasons Case is a bribery case. Mr. Spring, a section manager of aconstruction company, Seasons Inc., offered USD 100,000 to Ms. Summer,
director of the Ministry of Construction of the Republic of Printemps2, inorder to obtain favourable treatment in an airport construction project.
Ms. Christie, a prosecutor in Printemps, started the investigation on this caseafter receiving an anonymous telephone call. Ms. Christie had a very
competent assistant officer, Mr. Poirot. A man who called himself R2D2 but
refused to reveal his identity stated the following: Ms. Summer and Mr.
Spring were meeting quite frequently in an Italian restaurant Il Risotto diPrimavera3 until May 2015; Seasons Inc. succeeded in obtaining a contract
with the Ministry of Construction worth USD 800,000,000; Ms Summerbought a nice villa (USD 80,000) in the Kingdom of Fruehling4.
After this phone call, Ms. Christie did a quick Internet search and found outthat Mr. Spring and Ms. Summer did exist and worked in the respective
company and ministry. Ms. Christie also learned that the webpage of the
Ministry of Construction offered information on past and future procurement
and bidding, and the investigator confirmed that Seasons Inc. actuallyobtained a contract as R2D2 had said.
Ms. Christie, after verifying also by Internet that Il Risotto di Primavera was
2

French word for spring, and there is a famous department store chain using this as its name.
Italian word for spring.
4
German word for spring.
3

a very famous restaurant located in downtown Printemps City, sent Mr. Poirot
to the restaurant to have a look at the reservation book. The owner said that
he would let Mr. Poirot look at the reservation book but insisted that he could
not produce the book to the authority without a court order. Mr. Poirot foundthat every month Mr. Spring reserved a room for three persons. The owneragreed to check the billing record, and it turned out that every time they had
charged for three persons. Mr. Poirot, with the owner’s permission,interviewed the restaurant employee who actually serviced the guests in theroom. The employee clearly remembered that she served three guests, andupon seeing several photos, immediately identified Mr. Spring and Ms.
Summer as two of the three. The waitress said that the third guest was a
middle aged man, and from his behaviour she guessed that Mr. Spring was
his boss.
After further investigation, Ms. Christie found out that the third person was
Mr. Fall, who had been working for Mr. Spring at Seasons but had left thecompany three months ago, and presently resides somewhere in the Republicof Ilkbahar5.
Ms. Christie succeeded in finding the bank account of Ms. Spring. Afterobtaining its transaction records, she found out that USD 90,000 wastransmitted to Happyland Resort Inc., a real estate agency located in
Printemps. Happyland Resort is known for assisting customers to purchasereal estate and villas in Fruehling.
At this stage, you might guess that while Mr. Spring and Ms. Summer were meetingat Il Risotto di Primavera they discussed something about the construction contract andbribes might have been offered. Mr. Fall might know something about this deal.
Furthermore, Happyland Resort might have helped Ms. Summer to acquire a villa in
Fruehling, possibly by the bribe she had received from Mr. Spring.
Of course we all know that things do not go as smoothly as this in real life. But
even in this very simplified case, Ms. Christie and Mr. Poirot acquired a lot of information.
Some information guides them in new directions, where they found new clues on locating
Mr. Spring and Ms. Summer. All criminal investigators are engaging in these kinds ofactivities every day, inside their own countries.
IV.

COLLECTION OF INFORMATION AND EVIDENCE FROM SOURCESOTHER THAN THE AUTHORITIES AND OFFICIALS OF FOREIGN
GOVERNMENTS

In the Seasons case, there are several international elements. Ms. Spring might
have purchased a villa in the Kingdom of Fruehling, and Mr. Fall may be residing in the
Republic of Ilkbahar.
5

Turkish word for spring.

The time has come to send out the requests for mutual legal assistance. OK, but
request what? An interview of Mr. Fall and the confiscation and recovery of Ms.
Summer’s villa?
Of course, it is too early. Ms. Christie does not know Mr. Fall’s address inIlkbahar. She does not know whether Mr. Fall will cooperate with her or take sides with
Mr. Spring and Ms. Summer. She also does not know whether Ms. Summer actuallyowns a villa in the Kingdom of Fruehling. Does she first request the Ilkbahar
government to locate Mr. Fall or, the Fruehling government to initiate its own
investigation on the location of the villa?
There is a famous saying: “Charity begins at home”.
One of the important
maxims in the investigation of transnational crime is “Investigation begins at home”.
Before going beyond the border, we should do everything possible within our jurisdiction,
starting, as Ms. Christie did, with an extensive Internet search.
Since Mr. Fall worked at Seasons Inc. in Printemps, it is very likely that he hadfriends and colleagues there. The first thing you can try is to identify these persons andask them about Mr. Fall. Some of them might know his present address in Ilkbahar
and/or other information concerning his whereabouts. Of course you should be careful
in deciding whom to contact, as some person might tell Mr. Fall that the authorities aretracking him. But if you are lucky, you might find somebody who holds a grudge against
Mr. Fall and is willing to offer quite a lot of information. It might turn out that Mr. Falland Mr. Spring had some disputes and Mr. Fall would cooperate with investigators.
As for Ms. Summer’s villa in Fruehling, the first place to go is the office ofHappyland Resort in Printemps. Ms. Christie or Mr. Poirot can ask its manager or
employees about the USD 90,000 transferred from Ms. Spring to Happyland Resort, andperhaps they can obtain some information, or even documentary evidence, related to thepurchase of the villa and its whereabouts. If they are cooperative enough, they mightobtain necessary documents from their counterparts in Fruehling and produce them to
Ms. Christie.
After all, Ms. Christie may have to resort to a formal mutual assistance request.
But having various information and evidence in advance will be very helpful in making
a precise request to foreign authorities. Thus the maxim, charity begins at home.
V.

MEASURES NOT RESORTING TO MUTUAL LEGAL ASSISTANCE

Now it is time to obtain information and evidence from overseas. And again, I
would like to quote another maxim. This time it is not so prominent as the preceding
ones, because I coined this motto: “Do not use MLA unless you cannot dispense with it”.
This is especially true for gathering information, i.e., information that you do notintend to admit into evidence at trial. There are many channels for the inter-agency

exchange of information already in existence. For example, if Ms. Christie is not solucky to find somebody in her country to provide the whereabouts of Mr. Fall in Ilkbahar,
she may wish to try the Interpol channel (since Ms. Christie is a prosecutor, she might
have to ask her police colleagues to contact Interpol). Information concerning thetransmission of the money from Printemps to Fruehling, and something about Happyland
Resort and the villa, may be obtained through the network of Financial Intelligence Units(FIUs).
Apart from these channels, you can consider using your personal network. If Ms.
Christie or Mr. Poirot know some policemen or prosecutors in Fruehling or Ilkbahar, they
can always ask for informal assistance by a phone call or e-mail correspondence, and theymight be happy to provide you with relevant information (but not evidence).
VI.

MUTUAL LEGAL ASSISTANCE

After utilizing all the measures mentioned above, at last Ms. Christie has to go
through the formal mutual legal assistance (MLA) process.
It is usually the prosecutor in charge of the case who drafts the request for MLA,in our hypothetical case, Ms. Christie. However, MLA requests should be signed by
the chief of the agency (such as the chief prosecutor of a prosecutors’ office), processed
through the Central Authorities of the requesting and requested states, and forwarded tothe agency in the requested state who actually conducts the necessary activities to collectevidence. Therefore, after drafting the request, Ms. Christie has to take it to her bossand ask him/her to sign it.
Here, again, permit me to present another maxim:
request at the very last stage”.

“Let your boss sign the MLA

Notwithstanding Ms. Christie’s outstanding professional competence, it would be
impossible to draft a perfect request by herself. The request should meet all theconditions under national legislation of the requested state, and the investigation to collectevidence contained in the request should also follow their domestic laws. I repeat thissince it is a very important point when it comes to mutual legal assistance. The request
should meet all the conditions under the national legislation of the requested states, andthe investigation to collect evidence contained in the request should also follow theirdomestic laws. Perhaps you may not be happy about it, but this is the situation we haveto live with. Collection of evidence to answer the MLA request should follow thenational legislation of the requested state.
There will be a lot of other things, such as work practices of the requested states,
which might affect the actual execution of the request for mutual legal assistance. Evenin this Internet age, and with all the skills you may have on the language of the requested
states, just reading their legislation will not be enough to write a request that would be
one hundred percent acceptable to the Central Authority of the requested state.

Let’s go back to Ms. Christie’s hypothetical case.
If Ms. Christie asks her top boss to sign the request document after finalizing the
document by herself, the Central Authority of her country, Printemps, may find somelegal problems and send the document back for re-drafting. Or, if she was lucky and therequest reaches the requested state, Ilkbahar for example, it is very, I repeat, “very” likelythat its Central Authority will find problems and come back with an answer that theycannot accept the request as it is.
For example, Ilkbahar might say that they cannot conduct the interview of Mr. Fall,
which Ms. Christie had requested, because Mr. Fall is presently under the investigationof the Ilkbahar authority and contacting him might jeopardize their investigation.
However, they might be kind enough to inform Ms. Christie that they have obtained, fromsome other person, a note written by Mr. Fall which states that he was with Mr. Spring at
Il Risotto di Primavera when Mr. Spring handed cash to Ms. Summer, and might proposethat if Printemps asks for this note instead of the interview, they might be able to provide
a copy. Now Ms. Christie has to make a decision. Please remember the Latin dictum
on meat and dried fish. Should she be happy with the note (dried fish) instead of Mr.
Fall’s interview (meat), or should she wait until Ilkbahar officials’ investigation of Mr.
Fall reaches a certain stage and they are ready to honour her request for his interview?
It all depends on how much time and other relevant evidence Ms. Christie has. She has
to decide whether she needs the fish or the meat. After all, any investigator willdefinitely want to add the note to the request.
The Ilkbahar authority might otherwise find that the request lacks some legal
elements required by their domestic law and tell Printemps that they cannot provide
assistance unless the request is revised to add some more contents to meet the conditions.
In such case, Ms. Christie has to revise the request and ask her boss to sign it again.
And if she continues to work in this way, there is a good chance that she has to repeat thisexercise many times. I think you can imagine that, each time Ms. Christie enters theoffice of her top boss, she will be feeling more and more uneasy.
In order to avoid this unpleasant situation, we should do whatever we can to ensurethat the formal request goes as smoothly as possible. Therefore, informal consultation
with your Central Authority, and perhaps through this office, with the Central Authorityof the requested state is instrumental in writing a good request. After finishing her firstdraft, Ms. Christie should send the draft to the Central Authority of Printemps, which will
be asking her a lot of questions and proposing revisions of its texts. Then the Printemps
Central Authority will be sending a revised draft to the Ilkbahar Central Authority, which
will be doing the same thing. After a lot of work and a bit of luck, Ilkbahar would say
they are happy with the request and ready to accept it formally. This is when Ms.
Christie should go to her boss and get the letter signed. Hence my maxim: “Let yourboss sign the MLA request at the very last stage”.
Now, I would like to share the experience of my most successful MLA request.
This was a cocaine smuggling case and not bribery, but I believe the process I followed

in this case may be helpful to show that, if things go well, MLA can be conducted quite
quickly. Please note that although this is a real case I dealt with, I am using pseudonyms
in my presentation.
(LA Case)
It was in 1993. I was thirty-five years old and working at the Chiba District Public
Prosecutors Office. Chiba is the region where Narita International Airport is located,and naturally, we were dealing with many drug trafficking cases through this airport.
On a hot summer day, 29 August 1993 to be specific, I received a phone call fromthe secretary of the Chief Prosecutor of our office to immediately report to his office.
Sitting there were the Chief Prosecutor, Deputy Chief Prosecutor, Director of the Criminal
Investigation Division, and a senior prosecutor. The Chief Prosecutor told me that hewanted me to travel to Los Angeles as soon as possible, and the senior prosecutor gaveme the following reason:- A Mr. East was arrested on 9 July 1993 when he arrived at Narita Airport from Los
Angeles, carrying with him about 80 grams of cocaine;- Mr. East, an employee of a famous Japanese publishing company West Shoten6 Co.
Ltd, was prosecuted on cocaine smuggling charges on 19 August 1993. He was astaff member of the photography section of West Shoten;- From the beginning of the investigation, Mr. East admitted that he tried to smuggle
the cocaine, but first he insisted that it was for his own use. However, at the laterstage, Mr. East told police investigators and the senior prosecutor in charge of thiscase the following story:
Actually, Mr. East tried to smuggle the cocaine for his employer, Mr. West,
president of West Shoten, who was also a famous film producer and haiku7
poet;
Mr. East had been smuggling cocaine for Mr. West many times for many years(at least thirty times starting from 1987);
Each time, Mr. East was instructed by Mr. West himself to purchase cocaine
from Los Angeles.
Under Mr. West’s approval, Mr. East prepared thecompany’s internal papers for overseas travel and for advance payment ofapproximately USD 10,000. According to these papers, the purpose of thetrips was to meet a Mr. North, an entertainment industry consultant, to obtainthe latest information concerning the American film industry, and the money
was for the commission to Mr. North;
Actually, the purpose of Mr. East’s travel to Los Angeles was to see Mr. North
6

Shoten is a Japanese word for “bookstore”.
A Japanese poem of seventeen syllables, in three lines of five, seven, and five, traditionally evoking
images of the natural world (Oxford Dictionary of English, Second Edition, Revised)7and to buy cocaine from him. Mr. North had nothing to do with thecollection of information on the film industry;
Mr. East kept a diary, in which he entered when he met Mr. West in his Tokyo
office, or Mr. North in Los Angeles.
- Since Mr. East’s statement was corroborated by the entries in his diary, the Chiba
Prefectural Police informed the Chiba Prosecutors Office that they wanted to arrest
Mr. West;- Considering that the statement of Mr. East was credible, corroborated by the diary
entries and also by his travel records, the Prosecutors Office agreed to the arrest of
Mr. West, which was to take place on 29 August, the very day I was called into theChief Prosecutors Office. Since Mr. West was a celebrity figure in Japan, thisinformation had been kept only among key officers in the Police and Prosecution,and I, a rather junior prosecutor (six years of experience at that time), was kept
outside the circle.
- Considering the social and financial status of Mr. West, the Chief Prosecutor
expected that Mr. West, with the help of the best defence lawyers in Japan, would
deny the charge and do his utmost to challenge the credibility of Mr. East as awitness for the prosecution. Therefore, the Chief Prosecutor wanted additional
corroboration: the statement of Mr. North that corresponds to what Mr. East said.
Against this backdrop, my mission was to obtain a written statement, preferably anaffidavit, of Mr. North before the conclusion of the investigation against Mr. West. Ourreasonable guess was that the court would grant his pretrial detention until 19 September.
I was assigned this mission because I had been involved in a separate drug
smuggling case in the previous year and succeeded in obtaining several items of evidence
from Los Angeles, and by travelling there to consult with the LA authorities, I had
established good working relations with them.
After coming back from my Chief’s office, I immediately made a telephone call to
Inspector Suzuki of the Chiba Prefectural Police. In the previous year, Inspector Suzuki
and I travelled together to Los Angeles for the mission I just mentioned, and he also hadvery good working relations with the Los Angeles law enforcement officers.
Apparently Inspector Suzuki had received similar instructions from his boss, andour telephone conversation went quite smoothly. We agreed that while Inspector Suzuki
would contact our colleagues in Los Angeles, namely the Los Angeles Police Department(LAPD), the Los Angeles County Attorney’s Office and the Federal Bureau of
Investigation (FBI) Los Angeles Office, I would start drafting an MLA request andcontact our Central Authority, the International Affairs Division of the Criminal Affairs
Bureau of the Ministry of Justice.
I finished the first draft on the same day, and sent it to the Central Authority byfacsimile (in those days e-mail services were not available in our offices). The officers
in the Central Authority were very cooperative. Prior to my contact, the Deputy Chief
Prosecutor of the Chiba Office had already talked with the Director of the Central
Authority, asking him to afford utmost assistance in urgently processing the request.
The officials in the Central Authority (they are selected from among competentprosecutors) asked me to provide additional information, and based on that, suggested
some changes to my draft. After revising the draft, they sent it (again by facsimile) to
our legal attaché in our embassy in Washington (who was also from the prosecution).
Our legal attaché in turn went to the US Central Authority in the Department ofJustice, and showed them the draft MLA request for comments. After some informal
consultation between Washington, Tokyo and Chiba, we managed to finalize the MLA
request which met all US concerns.
In the meantime, Inspector Suzuki talked with his counterparts in Los Angeles.
They were very quick to locate Mr. North. They suggested that they contact Mr. Northand see whether he is willing to provide a statement, and upon our agreement, they did
so. Mr. North at least agreed to see us, both American and Japanese officers in Los
Angeles, and our friends in Los Angeles told us that they would provide assistance once
the formal request reached them. Both the Central Authority in Washington and Los
Angeles authorities also agreed that Inspector Suzuki, my assistant officer and myself
would travel to Los Angeles and be present at the interview of Mr. North.
All of this was done in a few days. After finalizing the MLA request, the Chief
Prosecutor signed the document and we sent it to our Central Authority. The Central
Authority sent the document to the Ministry of Foreign Affairs, and at the same time asked
them to formally process this document as soon as possible. The Central Authority inWashington made a similar request to the State Department (at that time we had notconcluded a Mutual Legal Assistance Treaty with the US, and we had to go throughdiplomatic channels).
While my assistant officer and I were busy processing the MLA request, mycolleagues in the Chiba Office worked very hard to have our official passports and US
visas issued promptly, and to book a plane to Los Angeles.
Inspector Suzuki, my assistant officer Mr. Takaoka and I left Narita on 9 September,and arrived at Los Angeles International Airport on the same day. There we were met by
the officials from the LAPD, the FBI and the LA County Attorney’s Office andimmediately had a meeting, which turned out to be very encouraging. Mr. North agreed
to come to the LA County Attorney’s Office the next day and also agreed to speak about
his interaction with Mr. East. He agreed that we, the Japanese officers, could be present
there. The US officials agreed that the interview should be conducted in Japanese (Mr.
North was a Japanese national with permanent resident status in the US, and two of theAmerican officials were fluent in Japanese because they were second generation JapaneseAmericans). US officials also agreed that I could directly ask questions to Mr. North
with their permission and presence.

The next day, 10 September, Mr. North appeared at the LA County Attorney’s
Office on time. The interview went very smoothly. After being advised of his rightagainst self-incrimination, Mr. North quite frankly answered our questions, and his
answer basically matched what Mr. East had said. At the end of the interview Mr. Northagreed to sign an affidavit that reflected the contents of his oral statement. We called ina notary public and the affidavit was completed. All of this took less than five hours.
With the permission of the US side, I facsimiled the copy of the affidavit to the Chiba
Office (The original was to be processed through formal channels).
Thus my mission was completed on the second day of my stay in Los Angeles. I
was thinking that the Director of the Criminal Investigation Division should be very
happy to see the copy of the affidavit I facsimiled. However, the next day I received aphone call from him and he instructed me to ask several additional questions to Mr. North.
Prosecutors’ appetite for evidence never stops. Therefore, I asked our US colleagues foran additional favour, and made an argument that the new questions should be regarded ascovered by the original MLA request and thus no further request was needed. They werekind enough to agree to this (after consulting their Central Authority), and we met Mr.
North again two or three days later.
While we were in Los Angeles, we interviewed another person, Mr. South. Mr.
South was a film entertainment consultant who had had some business with West Shoten.
We wanted to make sure that he had nothing to do with the money Mr. East was carrying
to Los Angeles, and we succeeded in obtaining his written statement to that effect. We
did not need his affidavit because his statement was just for purposes of impeachment incase Mr. South suddenly appeared at trial as a witness for defence and testified that it was
actually Mr. South, not Mr. North, who had been receiving the commission from West
Shoten and what Mr. East had been saying was not true. Of course, we did not forget toinclude the interview of Mr. South in our original MLA request.
During the execution of our request, we knew that some of the money for cocaine
had been transmitted to Mr. North’s account in a certain bank in Los Angeles. We
wanted to confirm that the money was coming from West Shoten. But bank records
were not included in our original MLA request, and there was no way to read the wordingof the request to argue in good faith that it covered bank records. Then our Americancolleagues decided to use their own investigative authority (cocaine trafficking isnaturally also an offence in the US) to order the bank to produce related records by wayof subpoena. They said that they may be able to provide the bank records to us uponreceiving a new request which clearly asks for them.
Mr. West was prosecuted on 19 September 1993.
Later at the trial of Mr. West, the prosecutors requested the court to admit theaffidavit as evidence against Mr. West. They argued that under Subparagraph 3,
Paragraph 1 of Article 321 of the Code of Criminal Procedure, the affidavit should be
admissible as evidence. The provision states that a person’s written statement is
admissible 1) if a person cannot testify before the court because, inter alia, he/she isresiding outside Japan, and 2) if the statement was made under circumstances whichassure that the statement was especially credible. In practice, documents that are
deemed admissible under this provision are called “Subparagraph 3 documents8” by legal
practitioners, criminal law scholars and law school students. It is quite natural that thedefence attorneys vigorously argued against the prosecutors’ assertion that the affidavit
of Mr. North should be admitted as evidence under this provision.
Since Mr. North was living in the US with permanent resident status and had nointention to come back to Japan, there was a reasonable basis to meet the first condition.
However, the prosecutors had to prove the second condition. In order to do so, I went
to the courtroom as a witness for the prosecution and testified about all the steps we tookin Los Angeles and Mr. North’s attitude during the interview. This was to show that his
statement had been made under circumstances which assure that the statement was
especially credible.
The Chiba District Court admitted the affidavit as evidence, stating that it can be
regarded as a Subparagraph 3 document, and on 12 June 1996, sentenced Mr. West to four
years of imprisonment. However, please note that the most important incriminating
evidence was the testimony of Mr. East. The affidavit worked as corroborating evidence.
Naturally, Mr. West appealed, and his defence attorneys again argued, among others,
that the affidavit was not an admissible Subparagraph 3 document. On 1 March 1999,
the Tokyo High Court rendered a judgement dismissing the appeal. Mr. West appealed
again to the Supreme Court of Japan, which on 31 October 2000 rendered a decisiondismissing the appeal. In its decision, the Supreme Court explicitly endorsed the High
Court’s decision to admit the affidavit under the Code of Criminal Procedure.
As you have seen, I succeeded in obtaining the affidavit of Mr. North twelve days
after I was instructed to do so. Although there were a lot of lucky elements, I think myexperience serves as one example to show that things can sometimes go quite well evenin the twentieth century, without e-mails or an MLAT.
It is my view that the following factors, which are not exclusive, contributed to thesuccess of this operation:- Good working relationships had already been established between the officers of
Los Angeles and Chiba;- Central Authorities of both countries were very cooperative;- Japan had a legal attaché in Washington;- Informal consultation had been done before the finalization of the MLA request;
and last but not least,- US permitted our travel to Los Angeles and we could be present at the execution of
8

San-go shomen, in Japanese.

our request.
VII. INVOLVEMENT OF JUDGESOne of the reasons why I could get the affidavit of Mr. North so quickly was
without doubt because Mr. North agreed to speak. If he did not, and if we did not want
to give up on obtaining his statement, we would have had to find ways to compel him toappear before a judge.
In several cases, especially those relating to coercive measures, there is no way to
avoid the involvement of judges.
Here comes the last maxim in my address this morning: “Judges are
independent”. They do not take instructions from anybody, including administrative
agencies. They are bound only by their constitution and laws. This means that thespirit of cooperation and goodwill among officials of requesting and requested states has
limits in achieving the goals of international cooperation in criminal matters. The judges
in the requested state may make decisions not to afford assistance that is in their view
against their laws. The situation might not change even in cases where the head of stateof the requested state agrees to afford assistance. Judges do not take instructions frompresidents or prime ministers.
I hate to say this, but every time I speak about international cooperation I feel theneed to emphasize this point. I repeat again: cooperation and good will between
prosecutors and law enforcement officials have some limits. In some cases, in order tohave your request go through, you need persuasive arguments, under the law of therequested state, to convince judges. You may not like this situation, but it is a fact oflife we have to live with.
One of the most important jobs of prosecutors is to make convincing arguments
to persuade their judges to take decisions favourable to them. They should be
professionals in this skill. Therefore, if you want to ask for mutual legal assistancewhich inevitably involves judges, the first person to seek advice from is the prosecutors
in the requested state. They know all the conditions for taking certain coercive measures
under their national legislation, and will advise you on what kind of information and/or
evidence is needed to make a good argument before judges. Thus it is highly advisable
to post prosecutors in the central authority.
Before concluding my remarks on the involvement of judges, I want to invite yourattention to the fact that extradition and asset recovery are the fields where judges play anessential role. We should be well prepared to collect all necessary information andevidence and seek professional advice from the prosecutors of the requested state.

VIII.

LEGAL FRAMEWORK

I said judges are independent. But they are bound by the laws of their country.
Therefore, in order to effectively carry out a request for mutual legal assistance, you haveto have good legislation which clearly states what can and should be done. The wordingof the law should be clear and unambiguous enough to leave no room for judges to decide
otherwise.
Having a good legal framework is also important when you want to seek
assistance from foreign governments. If your legislation does not allow you to takecertain measures, you cannot ask foreign states to do the same thing. International
cooperation works in the spirit of reciprocity, and if your legislation prevents you fromreciprocating, you had better forget asking for the assistance from the beginning.
Charity begins at home.
IX.

CONCLUSION

This is all I wanted to say this morning. Notwithstanding my remarks on judges
and the legal framework, I would like to stress that the spirit of cooperation and human
networking that allows frank and prompt informal consultation is the most importantelement in successful international cooperation in criminal matters, including our fightagainst corruption.
I believe that this seminar will definitely contribute to the development of such a
network of experts, and I look forward to participating actively in all the programmes ofthis important meeting.
I thank you for your attention.