ENFORCEMENT PRACTICE AGAINST CORRUPTION IN JAPAN
Shinichiro Iwashita*

I. INVESTIGATION OF CORRUPTION CASES
Japan has no specialized commission or agency which is responsible for investigating
corruption cases. In Japan, there are two authorities that have responsibility for investigating
all criminal cases: the first is the police, the second is the Public Prosecutors’ Office. No
other agencies have the power to investigate corruption cases; only the police and publicprosecutors have the power to investigate.
A. Police[Art. 189(2) Code of Criminal Procedure (CCP)]
A judicial police official shall, when he/she deems that an offense has
been committed, investigate the offender and evidence thereof.
The police are obliged to investigate any crime including corruption offences.
B. Public Prosecutors[Art. 191 CCP]
A public prosecutor may, if he/she deems it necessary, investigate an
offense him/herself.
This article also provides public prosecutors with the power of criminal investigation;
however, it leaves that power to the prosecutors䇻 discretion.㻌 Thus, the police are theprimary investigative organ in Japan, while public prosecutors have discretionary power toinvestigate all criminal cases.
C. Relationship between the Police and Public Prosecutors
Most criminal cases (over 99㸣) are initially investigated by the police, and the police mustrefer the case to public prosecutors with documents and evidence after they launch aninvestigation. The public prosecutor who receives the case from the police begins his
investigation, which is supplementary to the police investigation and is undertaken with thecooperation of the police. The public prosecutor requests the police to conduct further
investigation and to collect more evidence crucial to proving the offender’s guilt. In addition,
public prosecutors directly conduct interrogation of suspects and interview key witnesses of thecase. Finally, public prosecutors determine whether to indict the suspect or not.
This framework also applies to investigations of corruption cases. Most corruption cases are
first investigated by the police, and public prosecutors investigate the case supplementary.
However, in a very small number of cases (less than 1㸣), public prosecutors conduct
investigation independently, without the cooperation of the police. These tend to be the major
corruption cases involving politicians, high ranking officers, and complicated economic crimes.
*

UNAFEI Professor and Japanese Public Prosecutor.

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Statistics of Bribery 2011
Newly received

Final disposition

Total Initiated orReferralfrom thepolice

Total

Indicted

Suspension Other nonof
prosecution
Prosecution

Total

61

5

56

47

41

1

5

National Diet
Members

-

-

-

-

-

-

-

Local
assembly

18

1

17

6

5

-

1

Government
officials

4

1

3

4

3

-

1

Local
government
officials

34

3

31

32

30

1

1

Quasi-public
officials 1

5

-

5

5

3

-

2

received directly
by public
prosecutors

ͤWhite Paper on Crime 2012

The above statistics are about passive bribery (bribery-taking) suspects newly received andwhose cases were disposed of in 2011. As shown, 56 suspects were investigated and referred toprosecutors by the police while 5 suspects were investigated by prosecutors independently.
persons
who are regarded
as engaging Cases
in official
dutiespursuant
to laws andD. “Quasi-public
Structure ofofficials”:
Independent
Investigationof Corruption
in thePublicProsecutors’
ordinances,suchasofficers
of
the
Bank
of
Japan
and
the
Japan
Broadcasting
Corporation.
OfficeIn large offices, public prosecutors are divided into several departments and share the work.
D.
Structurethere
of Independent
Investigation
Corruption
Cases
the Public
Prosecutors’
For example,
is the criminal
department, oftraffic
department
andinpublic
security
department
Officewhich all handle the investigation of the cases referred from the police. There is also the trial
In large which
offices, conducts
public prosecutors
into several
and share
the above
work.
department,
the trialsare
ofdivided
the cases
indicteddepartments
by prosecutors
in theFor
example,
there
is
the
criminal
department,
traffic
department
andpublicsecurity
department
departments.
which all handle the investigation of the cases referred from the police. There is also the trial
department,
conducts
cases Investigation
indicted by Department
prosecutors (SID).
in the Publicabove
On the which
other hand,
theretheis trials
also ofthe theSpecialdepartments.
prosecutors in this department do not investigate cases referred by the police. They independently

investigate major corruption cases and complicated economic cases by themselves.㻌 In Japan,
On the other hand, there is also the Special Investigation Department (SID). Public
there are three SIDs ˁ in Tokyo, Osaka, Nagoya — and there are Special Investigation Units inprosecutors in this department do not investigate cases referred by the police. They independently
10 other district public prosecutors’ offices. The most competitive prosecutors with great
investigate major corruption cases and complicated economic cases by themselves.㻌 In Japan,
knowledge, skill and experience in corruption cases are assigned to these departments and units,
there are three SIDs ˁ in Tokyo, Osaka, Nagoya — and there are Special Investigation Units in
especially in the SIDs of the Tokyo District Public Prosecutors’ Office. For example, currently,
10
other30district
public prosecutors’
offices.
The most
competitiveprosecutors
with ofgreataroundpublic prosecutors
and around80 assistantinvestigators
belongto the SIDs
theknowledge,
skill
and
experienceincorruption
cases
are
assignedtothese
departments
and units,
Tokyo District Public Prosecutors’ Office.
especially in the SIDs of the Tokyo District Public Prosecutors’ Office. For example, currently,
around 30 public prosecutors and around 80 assistant investigators belong to the SIDs of theTokyo District Public Prosecutors’ Office.
1“Quasi-public officials”: persons who are regarded as engaging in official duties pursuant to laws and ordinances,such as officers of the Bank of Japan and the Japan Broadcasting Corporation.

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II. PUBLIC PROSECUTORS’ BASIC INVESTIGATION METHODS FOR
CORRUPTION CASES
A. Investigative Tools
Japan has not introduced any advanced investigative techniques for corruption cases. For
example, Japan has no plea bargaining or immunity, no electronic surveillance, wiretapping or
eavesdropping, and no undercover or sting operations. On the other hand, it is necessary for
public prosecutors to obtain enough evidence to meet the high standard of proof, that is, “beyond
the reasonable doubt”, by making the best of all investigative methods permitted by law. In thissense, public prosecutors conduct “Intensive Investigation” in terms of physical evidence
gathering and its analysis, interviewing key witnesses and interrogating suspects.
B. Typical Process of Investigation
1. Main Elements of Bribery under Japanese Criminal Law
The main elements constituting bribery under Japanese criminal law are as follows:z Delivery of a bribe / Flow of fundsz Connection between the bribe and the public official’s duties (“quid pro quo”)
Request of bribe-giver to bribe-taker
Favour of bribe-taker to bribe-giverz Criminal intent (“mens rea”)
Among those elements, the hardest to find and prove is delivery of a bribe, usually a flow offunds between a bribe-giver and a bribe-taker, because the source of the bribe is usually a secretaccount of a company. On the other hand, establishing a connection between the bribe and the
public official’s duties, “quid pro quo”, is not so difficult as far as government officials areconcerned because their official duties have been interpreted broadly enough to cover almost all
corrupt activities.
2.

Outline of the Typical Process of Investigation
Investigation is roughly divided into four steps:
1) Collecting Clues
2) Non-Compulsory Investigationz
Analyzing clues / voluntarily submitted evidencez
Obtain further information and evidence to identify the crimes and suspectszInterview key witnesses
3) Compulsory Investigationz
Search and SeizurezInterrogate suspects under arrest / detention4) Indictmentz
Decision whether or not to indict the caseCollecting clues is important. When public prosecutors have good clues, they begin
investigations to obtain more evidence. As the CCP in Japan requires that investigations must be
conducted on a non-compulsory basis as much as possible, firstly, public prosecutors conduct
non-compulsory investigations. In the non-compulsory investigation stage, public prosecutors
gather as much evidence as they can without relying on compulsory investigation. Publicprosecutors aim to gather enough evidence to indict suspects even though they deny the facts
constituting the crime in the non-compulsory stage. In other words, if enough evidence was notcollected in the non-compulsory stage, public prosecutors may move to compulsory investigation,- 79 -

in particular by arresting suspects. Therefore, it usually takes several months and sometimes morethan a year to complete the non-compulsory investigation stage.
The compulsory investigation stage follows if prosecutors succeed in identifying indictablecorruption offences through non-compulsory investigation. Massive raids on relevant sites andthorough search and seizure take place. Public prosecutors also arrest suspects and interview themwhile in detention. Public prosecutors try to gather more evidence to be able to paint the whole
picture of the corruption by introducing evidence at trial. Finally, at the termination of a suspect’s
detention, public prosecutors determine whether to indict the suspect.
3.

Collecting Clues
The following are sources of information for gathering clues at the beginning of aninvestigation:z
Rumors / Media coverage / Internet accusationsz
Criminal Complaintsz
Informants / Whistleblowersz
STR / FIU (Suspicious Transaction Reports / Financial Intelligence Units)z
Investigation of other cases
However, good clues are hard to come by, especially direct indications of bribery. Public
information such as rumors, media coverage and internet accusations are important as basic
information rather than concrete clues. The SIDs receive many complaint letters or telephoneaccusations every day; however, most of them are frivolous. While informants or whistleblowers
directly involved in corruption, especially bribery, are rare, sometimes their information of any
wrongdoing is critical to corruption investigations.
The most important source of information is facts discovered through other investigations,for example, investigation of tax evasion referred by the Regional Taxation Bureau, securities
fraud cases referred by the Securities and Exchange Surveillance Commission, and anti-trust
cases referred by the Japan Fair Trade Commission. It is indispensable to investigate secretaccounts and to follow the money trail connecting the people and companies concerned in thosecases. The direct involvement of the Public Prosecutors’ Office is a great advantage of Public
Prosecutors’ in such corruption investigations.
4.

Non-Compulsory Investigation ձ - Tracing the Flow of Funds
In the investigation of corruption cases, identifying and proving the flow of illicit funds,
namely the source of the bribe, concealment, laundering or use of the bribe, is indispensable butvery difficult. Sometimes the evidence that directly proves the flow of funds cannot be obtained
until the final stage of the investigation through interrogation of suspects. On the other hand, even
if one party to bribery confesses, evidence of the actual flow of the funds must be detected inorder to corroborate the confession. Therefore a financial investigation to establish the flow offunds must be started at an early stage.

(ϸ) Source of the Bribe
Since the source of a bribe is usually a secret fund, corruption tends to be accompanied by“cooking the books”, or the maintenance of false or forged financial records, of the bribing
company. Such fraud frequently includes kickbacks and disguised expenditures. Through theexamination of account books and other financial documents obtained in other investigations or
submitted voluntarily, suspicious expenditures may be identified, and then prosecutors trace themmore closely by directing further inquiries to financial institutions.

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(Ϲ) Inquiries to financial institutions
Inquiries to financial institutions are one of the most important and widely used tools ofinvestigation.
[Art. 197(2) CCP]
Public offices, or public or private organizations, may be asked to makereports on necessary matters relating to investigation.
In Japan, jurisprudence has interpreted this statute as requiring financial institutions to
respond to prosecutors’ requests. It is not necessary to obtain a warrant or subpoena to ask forsuch reports. In the SID, there are many trained assistant investigators who assist prosecutors, andthey are trained to make such inquiries for bank records. Also they know well where and whatkind of records are kept in each financial institution. They actually go to banks and theirwarehouses to find and obtain necessary information and documents.
(Ϻ) Secret funds
By tracing suspicious expenditures, prosecutors may find the funds withdrawn somewherein cash, which is highly indicative that the funds were being used for corrupt purposes. Thenprosecutors prepare to conduct the most effective interview or interrogation of the suspects. In
order to detect secret funds, accurate analysis of financial documents is essential. Many
prosecutors and assistant investigators in the SID have bookkeeping qualifications. To trace theflow of funds between many bank accounts exactly, we usually integrate all transaction records
into one tabular form. On the completed table of transaction records, investigators can trace theflow of funds connected with bribery.
(ϻ) Pseudonymous Bank Accounts
It is important to discover pseudonymous bank accounts in the investigation of corruption
cases because they are likely to be highly connected with bribery. To find them, publicprosecutors and assistant investigators in the SID ask financial institutions to voluntarily submit
the application documents for opening the bank account, and analyze them carefully. Also, publicprosecutors interview bank clerks, the person who opened the bank account, and persons who
remitted the funds to the bank account.
5.

Non-Compulsory Investigation ղ – Interviewing Key Witnesses(ϸ) Importance of interviewing key witnesses
It is important to find witnesses who are willing to cooperate with the investigation. They
will be the key players to support the prosecutions’ claims at trial. At the same time, the key
witnesses might be the suspect’s coworker, a close partner, boss or subordinate of many years.
Investigators should make every effort to take statements from such persons because we often
face difficulty in detecting where the important evidence is without their statements.
Also, the credibility of statements of the witness should be carefully evaluated, taking into
account all factors, such as his/her position, character, knowledge, memory, integrity, relationshipwith suspects, and so forth.
Once witnesses cooperate with the investigation, they often testify to important facts not only
in interviews but also in court. However, sometimes, they refuse to testify in court because they
are intimidated by the defendant, who is seated in front of them. To cope with such situations,public prosecutors always obtain signed and sealed written statements during interviews.

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(Ϲ) Exception to the Hearsay Rule
The Code of Criminal Procedure of Japan has adopted following exception to hearsay rule.
[Art. 321(1) Ϲ CCP]
A document, which contains a statement of a person given before a public prosecutor,
with the person’s signature and personal seal, is admissible as evidence in the following
conditions:z
He or she does not appear or testify on the date either for preparation for the trial
or for the public trial for inevitable reasons; orz
He or she gives testimony contrary to or materially different from his or her
previous statements: This shall apply only where there exists special
circumstances, because of which the court may find that the previous statements
are more credible than the testimony given mentioned above.
If the witness gives testimony at trial which is contrary to or materially different from his/her
previous statement during the investigation, public prosecutors try to prove special circumstances,namely that the previous statements in investigation were more credible than the testimony incourt, and request judge to admit the written statements made during the investigation stage.
Special circumstances are, for example:
࣭where the witness has a close relationship with the suspect࣭where the witness shared a common interest with the suspect for a long time
࣭where the defendant is an influential person, such as a politician, and the witness is notexpected to tell the truth in front of the defendant.
Therefore, in case the witness cannot testify truthfully, public prosecutors submit the written
statement of the interview after proving the existence of such special circumstances.
6.

Compulsory Investigation ձ – Search and Seizure(ϸ) Simultaneous seizure
For effective search and seizure, simultaneous execution of search and seizure warrants is thebest, because the more time it takes, the more risk of concealment / destruction of important
evidence.
To realize effective search and seizure, the public prosecutor in charge of the case should
consider:zWhere and how many places should be searchedzWhat kind of evidence should be seized at each placez
How many public prosecutors and assistant investigators are necessary to complete thesearch and seizure
If the search is not properly carried out, it will result in the failure to seize crucial evidence,
and would lead to destruction of such evidence by those involved.
(Ϲ ) Arranging an effective search teamIn order to effectively execute a search at many sites at the same time, it is important toestablish a good search team that can communicate well. Also, a good leader should be assigned
who can give prompt and appropriate direction to the team. In order to allocate appropriate- 82 -

persons at each site, public prosecutors in charge of the case should have a clear idea of thenumber of sites to be searched, their scale and locations.
Moreover, in allocating personnel, the nature and the expected situations of each siteshould be taken into account. For example, if a site is large, it will take a long time to complete
the search and seizure. If important evidence is expected to be hidden at the site, experienced
investigators should be present. If the defence attorney is expected to be present at the site,
prosecutors should be present, and so forth.
Sometimes, there are too many places to search at the same time by only public prosecutors
and assistant investigators from SIDs. In such cases, many prosecutors and assistant investigatorsin other departments or other district public prosecutors are transferred to SIDs for limited periods
to enable the SIDs to achieve simultaneous searches and seizures.
(Ϻ) Advance briefing – for successful search and seizure
For successful searches and seizurees, appropriate advance briefing of personnel is
indispensable because, as mentioned above, there are usually a few personnel who do not know
the case in detail, including what evidence should be seized at each place.
The objectives of advance briefing are as follows;z
Establish a chain of command, communication network and division of roles in each unit.
z
Share common information and purposes among all personnel.
zPrepare for possible emergency situations on the site and effective measures against them.
z
Finalize logistical matters (time and place for gathering, departure time, transportation of
persons, vehicles for conveying seized evidence, meals for persons during the search, andarrangement of locksmiths).
Advance briefing is usually held just before the search in order to maintain confidentiality.
Even staff prosecutors are not informed in advance of the time and date of the briefing, or where
they will search.
In most cases, the public prosecutor in charge of the case first summarizes the case and thematerial evidence necessary to prove the facts. After this explanation each search team has its
own meeting in preparation for their search.
(ϻ) Analysis of seized evidence After finishing the search, analysis of the seized evidence begins immediately. Thorough andswift analysis of seized evidence and sharing the result of the analysis is the key to a successful
investigation. This should be done systematically. Therefore, special units for analyzing evidence
are often established.
In the initial stage of analyzing evidence, several analysis teams are established based on thelocation of the evidence. Each team is composed of public prosecutors and assistant investigators,
and one public prosecutor is assigned as the leader in each team. For example,zzzzTeam A - in charge of evidence collected at company E
Team B - in charge of evidence collected at the residence of President F
Team C – in charge of evidence collected at the office of politician G
Team D - in charge of evidence collected at the residence of politician G- 83 -

Sometimes evidence is divided by the issue or the person to which evidence is supposed tohave a connection. Such organization is usually used for the second analysis after the initial stage.
For example:zzzzTeam A - in charge of account ledgers collected at company E
Team B - in charge of evidence collected from President F’s desks in his residence andthe desks at company E
Team C - in charge of evidence collected at company E, excluding the above president’s
desk.
Team D - in charge of evidence collected at the office and residence of politician G

Also, it is not rare that analysis of evidence and interrogating/interview of the persons
concerned are conducted at the same time. In that case, the information is always being relayed tothe head prosecutor who is in charge of the case; thus important information is only concentrated
on one public prosecutor in charge of the case.
(ϼ) Sharing information on seized evidence
To share the results of the analysis of an extensive amount of evidence, prosecutors andassistant investigators make a database. The data is called “The list of articles of evidence”.
Investigators can access the data from their PCs at any time. The data includes the following
matters:z Number, name and quantity of the evidencez Name and address of possessorz Where discoveredz Specific contents of the evidencez The name of the officer in charge of the analysis
z Whether or not to retain the evidence
7.㻌 Compulsory Investigation 䐠 – Interrogation of Suspects(ϸ) Importance of interrogation of suspects
Interrogation of suspects is very important because bribery is conducted secretly
between collusive parties. So usually there are no eye-witnesses or self-explanatory physicalevidence. Even if we collected much physical evidence, it is necessary to explain what itmeans. Therefore, confessions have vital meaning. Confessions collaborated by
overwhelming physical evidence are the most credible of all.
On the other hand, even if suspects do not confess, it is very important to hear andidentify the suspect䇻s excuses. This is because public prosecutors can use the defendants䇻
excuses against them at the trial. In this sense, whether a suspect does or does not confess,
interrogation of the suspect plays an important role.
(Ϲ) Procedure after arresting the suspects – public prosecutors’ investigation
When public prosecutors have a suspect arrested under an arrest warrant, theprosecutors have to request a judge to issue a detention order within 48 hours after the arrest.
During these 48 hours, public prosecutors conduct brief interrogation of the suspect andconfirm mainly the suspects’ excuses surrounding the alleged crime.

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TheThejudge
judge
considering
considering
the detention
the detention
order orderreviews
reviews
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theandcaseinterviews
and interviews
the suspectthesuspect directly.
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The
then
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decides towhether
detain tothedetain
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issues adetentionorder,
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detainedisfor
detained
10 days.
for During
10 days.
those
During
10 days,thosethe10 public
days, prosecutor
the publicprosecutor interrogatesinterrogatesthe suspect theeverysuspectday. every day.
After
After
10 10
days,
days,thetheprosecutor
prosecutormust
mustdecide
decidewhether
whether toto prosecuteprosecute thethe suspect. The
prosecutor can indict the suspect at this time. But when there is an indispensable necessity,
the prosecutor may request the judge for an order to extend the detention. The detention canbe extended up to 10 days. Usually, in corruption cases, detention is extended because of thecomplicated nature of the cases.
By the termination of the detention term, the prosecutor must decide whether toprosecute the suspect. If the prosecutor does not institute any prosecution by this deadline,
the prosecutor has to release the suspect.
(Ϻ) Regulation on interrogation
The suspect has a right to remain silent. Confessions must be voluntary to be admissible
as evidence in court. If a suspect is compelled to confess by threat and assault by theinterrogator, the confession is inadmissible. Therefore, public prosecutors pay attention tosuspects’ rights during interrogation.
In Japan, defence attorneys are not permitted to be present during the interrogation.
However, defence attorneys have the right to access the defendant or suspect in detention.
Investigators, including prosecutors, provide defence attorneys with reasonable time to meetthe suspect anytime there is a request. Moreover, to ensure that the interrogation has been
conducted properly, all suspect interrogations by the SID are currently video recorded.
(ϻ) Credibility of confession
When the suspect confesses, the credibility of the confession must be analyzed, taking
into account various factors such as, consistency with other evidence, corroboration by
objective evidence, disclosure of facts unknown to investigators, vividness and livelinessand so forth.
(ϼ) For effective interrogation
Public prosecutors do not question suspects unprepared; they are armed with concrete
evidence and information. For effective interrogations, careful preparations areindispensable. SID prosecutors often deal with politicians, high-ranking officials andcorporate executives who are educated or trained to be accountable. So before interrogation,
public prosecutors make careful and sufficient preparation for the interrogations.
Generally speaking, public prosecutors keep the following in mind when theyinterrogate suspects.
z
z
z
z
z
z

Listening patiently and carefully
Maintaining a resolute and determined attitude
Creating an appropriate atmosphere in which to tell the truth
Never showing prejudiceContemplating the best timing for showing evidence
Thorough, persistent and timely questioning, especially when a suspect begins to
confess- 85 -

In addition, the timing for showing material evidence to a suspect is very important. If
public prosecutors show important evidence to a suspect too early in the interrogation, thesuspect has time to come up with good excuse.
III. WHY THERE IS NO SPECIAL AGENCY DEALING WITH CORRUPTIONCASES IN JAPAN1. Integrity of Police
In Japan,㻌the police maintain integrity and public confidence. In 2012, the total numberof police officers was 293,588, and 458 police officers out of 293,588 were subject todisciplinary procedures. Most of those conduct resulting in discipline involved theft,misbehaviour under the influence of alcohol, inappropriate relations with the opposite sex,
and loss of public money or criminal evidence. Of course the police are not entirely free of
corruption, and there are corruption cases committed by police officers; however, thenumber is very small.
All 47 prefectural police in Japan have in their headquarters a division specializing ininvestigation of corruption with well-trained detectives, and they eagerly pursue corrupt
officials. Japanese police enjoy high confidence from the citizens for their discipline andtheir investigative ability.
2.

Independence of Public Prosecutors
Public prosecutors’ political independence has been highly regarded.㻌Public prosecutors’
positions are secured by law. No arbitrary dismissal, suspension, or reduction of salary canbe made. In regard to the investigation and disposition of individual cases, the Minister ofJustice can control only the Prosecutor General, not each prosecutor, directly. For example,
the Minister cannot directly interfere with prosecutors in charge of individual investigations
and prosecutions.
Accordingly, it is said that this power of the Minister of Justice has been used only oncein more than 60 years since its inception. In April 1954, when Public Prosecutors were
investigating a big bribery case involving several high-ranking politicians and trying toarrest the Secretary-General of the majority party, the Minister of Justice, who belonged tothe same party, ordered the Prosecutor-General to stop the arrest. Consequently, it led totermination of the investigation. However, since it produced severe criticism from the publicthrough the mass media, the Minister himself resigned the next day, and the strong criticism
of opposition parties backed by the media and the general public forced the whole cabinet toresign by the end of the year.
As you can see, in addition to prosecutorial independence, a strong opposition party in
Parliament, active mass media and public confidence in the prosecution service all support
anti-corruption efforts. Japanese prosecutors can investigate and prosecute central politicalfigures with the highest degree of independence.
IV. CONCLUSION
The following are recommendations of some important points for successful
investigation of corruption cases.
z

Impartiality, integrity and independence of investigative authorities- 86 -

z
z
z
z
z
z

Well-organized investigation
Prominent leaders and investigators with experience and expertise
Thorough search and seizure and analysis of physical evidence
Building good relationships with key witnesses
Thorough interrogation of suspects
Confidentiality

Corruption offenders use various methods to tamper with evidence, and prosecuting
corruption cases is a significant challenge; however, in Japan, the police and publicprosecutors, especially those in SIDs, always endeavor to discover corruption and prosecutethe offenders by means of intensive investigation.

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