CHAPTER 4 PRE-TRIAL CRIMINAL PROCEDUREI.

INTRODUCTION

Japan is a unitary state, and the same criminal procedure applies throughout the nation. The Code of
Criminal Procedure (hereinafter CCP), the Act on Criminal Trials Examined under the Lay Judge System,and the Rules of Criminal Procedure are the principal sources of law.
II.

CONSTITUTIONAL SAFEGUARDSThe Constitution of Japan has an extensive list of constitutional guarantees that relate to the criminal
process. Article 31 provides that “no person shall be deprived of life, or liberty, nor shall any other criminal
penalty be imposed, except according to procedure established by law,” while Article 33 states that “noperson shall be apprehended except upon warrant issued by a competent judicial officer which specifies
the offence with which the person is charged, unless he is apprehended, the offence being committed.”
Further, as prescribed in Article 34, “no person shall be arrested or detained without being at once informedof the charges against him or without the immediate privilege of counsel; nor shall he be detained without
adequate cause; and upon demand of any person such cause must be immediately shown in open court inhis presence and the presence of his counsel.” Article 35 provides for the protection of one’s residence andproperty, stating “the right of all persons to be secure in their homes, papers and effects against entries,
searches and seizures shall not be impaired except upon warrant issued for adequate cause and particularly
describing the place to be searched and things to be seized, or except as provided by Article 33.”
As for the trial proceedings, Article 38 provides that “no person shall be compelled to testify against
himself,” and that a “confession made under compulsion, torture or threat, or after prolonged arrest or
detention shall not be admitted in evidence.” It further provides that “no person shall be convicted or
punished in cases where the only proof against him is his own confession.” As for the protection of someof the basic rights of the individual who is facing a criminal trial as an accused, Article 37 provides that“in all criminal cases, the accused shall enjoy the right to a speedy and public trial by an impartial tribunal;
he shall be permitted full opportunity to examine all witnesses, and he shall have the right of compulsory
process for obtaining witnesses on his behalf at public expense; at all times the accused shall have theassistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts,
be assigned to his use by the State.” According to Article 39, “no person shall be held criminally liable foran act which was lawful at the time it was committed, or of which he has been acquitted, nor shall he beplaced in double jeopardy.”
Finally, Article 40 provides that “any person, in case he is acquitted after he has been arrested ordetained, may sue the State for redress as provided by law.”III.

INVESTIGATIVE AGENCIESThe police are the primary investigative agency in Japan. Officers of certain other administrative
bodies, such as narcotics agents and coast guard officers, have limited jurisdiction to investigate certain
type of offences, whereas police officers have general jurisdiction which covers all types of offences.
The vast majority of criminal cases are investigated by the police and referred to public prosecutors.
As the police do not have the power to decide whether to prosecute, all cases investigated by thepolice must be sent to public prosecutors for disposition, except for very minor offences prescribed byprosecutorial guidelines as categories of cases that may be terminated at the police level subject to nonprosecution upon subsequent approval by a prosecutor.
A public prosecutor has the exclusive power to decide whether or not to prosecute, and Japanese
law does not permit private prosecutions. Moreover, public prosecutors are fully authorized to conductcriminal investigations, and they actively supplement police investigation by directly interviewing
witnesses and interrogating suspects. Prosecutors may also instruct police officers as they consider
necessary during an investigation. Prosecutors can also initiate their own investigations. In particular, with－ 13 －

regard to politically sensitive or complicated cases, such as bribery or large-scale financial crime involving
politicians, high-ranking government officials or corporate executives, prosecutors often investigate thecase without any police involvement. This is called “independent investigation”. Special Investigation
Departments established in the Tokyo, Osaka and Nagoya offices are designed to carry out such
independent investigations. Also, several other large offices have “special criminal investigation
departments” mainly dedicated to independent investigations.
IV.

INVESTIGATION PROCESSA.

Overview

Japanese police and public prosecutors, to the extent possible, conduct criminal investigations
without resorting to compulsory measures such as arrest, searches, and seizures. Even for serious offences,
they gather as much information as possible on a non-compulsory basis and carefully evaluate whether anarrest is necessary or if the investigation should continue without arresting the suspect. In 2017, 63.9
percent of suspects of non-traffic offences were investigated and processed without arrest. 7
The procedure after arrest is as follows:
(1)
(2)
(3)
(4)

B.

When the police arrest a suspect, they must refer the suspect, along with supporting documents
and evidence, to a public prosecutor within 48 hours; otherwise the suspect must be released.
Within 24 hours after receiving the suspect, the prosecutor must do either one of the following:
apply to a judge for a pre-indictment detention; prosecute the case; or release the suspect.
If an application for pre-indictment detention is granted, a judge will issue a warrant, and thesuspect will be taken into detention. Its duration is ten days, which may be extended for up toanother ten days.
When the case is prosecuted within the authorized pre-indictment detention period, the preindictment detention is automatically converted to pre-trial detention. If the case is notprosecuted, the suspect must be released. Afterward, the public prosecutor decides whether
to continue the investigation without arrest, or not to prosecute the case.

Initiating a Criminal Investigation

A criminal investigation is initiated when an investigative agency becomes aware that a crime has
been committed. Although there is no limit on what could trigger this, typical causes determined by law
include (1) discovery of an offender in flagrante, (2) autopsy of a body following unnatural death, (3)accusation by the victim or another person, (4) agency request, (5) admission of guilt, and (6) policequestioning.
(1)
(2)

(3)

(4)
7

Discovery in flagrante
Cases where the perpetrator is caught in the act of committing a crime, or where a person may
be clearly deemed to have just committed a crime.
Autopsy of a body following unnatural death
When a body is discovered and the cause of death is deemed highly likely to have been acriminal act, or when such a cause cannot be ruled out, the investigative agency must conduct
an external autopsy. This is a non-invasive examination to assess the condition of a body. If,
as a result of the external autopsy, a need is seen to delve further into the cause of death, a
medico-legal or forensic autopsy is generally carried out by a doctor, pending the issue of acourt warrant.
Accusation by the victim or another person
Cases where the victim of a crime reports the crime to an investigative agency and seeks
criminal proceedings against the perpetrator. Also, in cases where a person other than thevictim reports the crime to an investigative agency and seeks criminal proceedings against theperpetrator.
Agency request
Cases where an organization prescribed by law reports a crime to an investigative agency andWhite Paper on Crime 2018, Ministry of Justice, Japan.

－ 14 －

(5)
(6)

C.

seeks criminal proceedings against the perpetrator.
Admission of guilt
Cases where the perpetrator admits having committed a crime to an investigative agency
before the crime is detected.
Police questioning
Police officers may stop and question any person when suspecting that the person has
committed some kind of crime or is about to do so, judging from unusual behaviour or thesurrounding circumstances, or when deeming the person to know something about a crime thathas been or is about to be committed. If it is disadvantageous to the person to be questioned
there and then, or if the questioning causes a traffic obstruction, officers may ask the person toaccompany them to the nearest police station for questioning.

ArrestAs a general rule, a judicially issued warrant is required to arrest a suspect. Police officers designatedby law and all public prosecutors are authorized to apply to a judge for an arrest warrant, and a warrant
shall be issued if a judge deems that there exists sufficient probable cause to suspect that the person has
committed an offence.
Japanese law does not recognize a class of offence, for which warrantless arrests are generally
permitted. There are two exceptions to the judicial warrant requirement under the CCP, which are thefollowing;
(1)

(2)

D.

Flagrant Offenders:
A flagrant offender (an offender who is in the very act of committing or has just committed
an offence) may be arrested by any person without a warrant. When it appears evident that aperson has committed an offence shortly before, and one of the prescribed legal criteria is met,such a person is also treated as a flagrant offender. 8
Emergency Arrests:“When there are sufficient grounds to suspect the commission of an offence punishable by thedeath penalty, or imprisonment for life or for a maximum period of three years or more, andin addition, because of great urgency an arrest warrant from a judge cannot be obtained, apublic prosecutor, a public prosecutor’s assistant officer, or a judicial police official may arrest
the suspect after notifying the suspect of the reasons therefor.” 9
When an offender is taken into emergency arrest, an application for an arrest warrant mustbe filed immediately after the arrest. If the warrant is not issued, the suspect must be released.

Post-Arrest Procedure

Following an arrest, a police officer or a public prosecutor must immediately notify the suspectof the essential facts of the suspected crime, inform him or her of the right to counsel, and then offer an
opportunity to present his or her explanation.
If the arrest was made by the police, the suspect, along with supporting evidence, must be referred
to a public prosecutor within 48 hours, or the suspect must be released. After receiving the suspect, thepublic prosecutor must immediately inform the suspect of the essential facts of the suspected crime andoffer further opportunity to present his or her explanation. This is an important step in the early stage ofinvestigation as it is the public prosecutor’s initial opportunity to interrogate the suspect.
Within 24 hours of receiving the suspect, the public prosecutor must either apply to a judge for a preindictment detention; prosecute the case; or release the suspect. The police are not authorized to apply for
pre-indictment detention: the application must be made by a public prosecutor. If the suspect was arrested
by a public prosecutor and not by the police, the application for pre-indictment detention must be madewithin 48 hours after the arrest.
A judge will then review the file, take a statement from the suspect, and decide on the prosecutor’s
8
9

CCP Articles 212 and 213.
CCP Article 210.

－ 15 －

application. A pre-indictment detention warrant shall be issued if a judge deems that there exists probablecause to suspect that the suspect has committed the offence, one of the following conditions is met, and thejudge does not consider it unnecessary.
(1)
(2)
(3)

The suspect has no fixed residence;
There is probable cause to believe that the suspect may conceal or destroy evidence; or
The suspect has fled or there is probable cause to believe that the suspect may flee.

If these conditions are not met, the judge will deny the prosecutor’s application and order theimmediate release of the suspect.
The duration of pre-indictment detention is 10 days and, upon application by a public prosecutor,
a judge may grant an extension for up to another 10 days. Thus, the maximum length of pre-indictment
custody is 23 days, including the initial 72 hours following the arrest. If the case is not prosecuted within
the authorized period, the suspect must be released.
During pre-indictment detention, many suspects are detained in police jails instead of detention
houses. The Act on Penal Detention Facilities and Treatment of Inmates and Detainees allows such
substitutions when approved by a judge.
E.

Collection of Evidence
Evidence can be either one of two categories: statements and non-statements.

1.

Taking Statements

When investigators take statements from witnesses and suspects, they will prepare a detailed
summary of what has been said during the interview or interrogation. The summary will be read to or readby the interviewee for confirmation, and if agreed, it will be signed. Such written statements are admissible
as evidence if the defense consents to their use, or they fit in one of the hearsay exceptions provided for in
the CCP.
2.

Interrogation of Suspects

Police officers and public prosecutors may ask suspects to appear in their offices for interrogation,and suspects under arrest or detention are obligated to comply. However, Article 38-1 of the Constitution
guarantees the right against self-incrimination, and Article 198-2 of the CCP requires investigators to notify
the suspect, in advance of the questioning, that he or she is not required to make any statement against hisor her will. In order to be admissible at trial, confessions must be voluntarily made. In this regard, CCP
Article 319-1 provides that “confession made under compulsion, torture or threat, or after prolonged arrest
or detention, or which is suspected not to have been made voluntarily shall not be admitted in evidence.”
Details of statements made by suspects during questioning are compiled into written statements byinvestigating officers and used as evidence in trials. There, however, the admissibility of a confession
made during questioning is often disputed, in that the confession may have been forced or induced by theinvestigating officer and not made voluntarily, among other reasons. Therefore, in practice, suspect
interrogations are now video-recorded in many cases. Under the amendment to the CCP, which will enter
into force by June 2019, video-recording of interrogations of arrested or detained suspects will beobligatory in cases of homicide and other serious offences subject to trial by lay judges (Saiban-In) and incases in which public prosecutors conduct independent investigations (mainly by Special Investigation
Departments and Special Criminal Investigation Departments). However, in practice, interrogations ofsuspects in these cases are already being video-recorded. Moreover, in practice, in most cases,
interrogations by the public prosecutors are fully video-recorded where the suspect is arrested or in preindictment detention, and if the suspect deny the suspicions or the arrest/detention is for a serious crime.
These recordings are used as means of verification, in case the voluntary nature of a confession madeduring questioning or its credibility is disputed at trial. In principle, everything is recorded from the time
the suspect enters the room to the time the suspect leaves.

－ 16 －

3.

Searches and Seizures

In order to lawfully search for and seize evidence, a judicially issued warrant is required. The only
exception to this requirement is for searches and seizures incident to arrest. According to Supreme Court
precedents, a serious violation of search and seizure rules may result in the inadmissibility of evidence soacquired.

Public Prosecutor's Interrogation (moot)F.

The Right to Counsel

The right to counsel is guaranteed by the Constitution and the CCP. Suspects may retain a counsel
at any time at their own expense. Confidential communication is guaranteed, and suspects under arrest or
detention are entitled to meet with their counsel and to exchange documents or articles without any officials
being present.
Previously, court-appointed counsel was available after indictment, but the availability of counsel
was restrictive at the pre-indictment stage, depending on the gravity of the offence. However, a CCP
amendment, effective since June 2018, expanded the rule: now, all suspects held in pre-indictment
detention are entitled to ask for court-appointed counsel if they are unable to hire one because ofindigence or other reasons.
Furthermore, the Bar Associations operate the Toban-Bengoshi system, which was introduced in
1990. Toban-Bengoshi means “an attorney on duty,” and when requested by an arrested person or his or her
family, a Toban-Bengoshi will immediately visit the arrested person at the police station etc. to provide
legal advice. This first visit is provided free of charge.
G.

Bail

Suspects under pre-indictment detention are not bailable. When they are indicted, their legal statuschanges from a suspect to a defendant, and from that point on, they become eligible for bail. Bail must be
granted except when:
(1)
(2)
(3)
(4)
(5)
(6)

the defendant is charged with an offence punishable by death, life, or a minimum term of one
year’s imprisonment;
the defendant was previously convicted of an offence punishable by death, life, or a maximum
term of more than ten years’ imprisonment;
the defendant has habitually committed an offence for which a maximum term of imprisonmentof three years or more is prescribed;
there is probable cause to suspect that the defendant may conceal or destroy evidence;
there is probable cause to suspect that the defendant may harm or threaten the body or propertyof the victim or any other person who is deemed to have essential knowledge for the trial of
the case or the relatives of such persons; orthe defendant’s name or residence is unknown.

Likelihood of reoffending is not a valid ground for denying bail. When granting bail, the court is－ 17 －

required to set the amount of the bail bond. The court may also add other appropriate conditions, and inpractice, bail is often subject to the condition that the defendant not contact co-defendants, witnesses, or
victims.
V.

DISPOSITION OF CASES

A.

Responsibility for Prosecution1.

Principle

Public prosecutors have the exclusive power to decide whether to prosecute, 10 and this system iscalled “monopolization of prosecution.” Japan does not have a system of private prosecution or police
prosecution, and there are no grand juries. A court cannot try a case unless it is prosecuted by a publicprosecutor.
2.

Exception

There are two exceptions to the monopolization of prosecution: quasi-prosecution 11 and compulsory
prosecution following a recommendation by the Committee for Inquest of Prosecution (see Section E for
details).
B.

Forms of Prosecution
There are two forms of prosecution: formal and summary. 12

1.

Formal Prosecution (Indictment) 13

Formal prosecution is a request to hold a formal trial, and it is made by filing of a charging instrument
called a Kiso-Jo. 14 The charging instrument must contain a clear description of the facts constituting theoffence charged. In order not to prejudice the court before trial, no evidentiary materials may be attached
to a Kiso-Jo.
(Speedy Trial Procedure)At the time of the filing of a Kiso-Jo, with the consent of the defendant, the prosecutor may ask the
court to try the case by the Speedy Trial Procedure. The Speedy Trial Procedure is applicable when thefollowing conditions are met:
(1) The offence is not punishable by death, life, or a minimum of one year’s imprisonment;(2) The case is clear and minor; and(3) The examination of evidence is expected to be completed promptly.
When the application is granted, the case will be tried by a simplified and expedited procedure. The
court is required to set an early trial date and, to the extent possible, render its judgement within one day.
When sentencing the defendant to a term of imprisonment, the court has to suspend the execution of thesentence. When a case is tried by the Speedy Trial Procedure, the defendant shall not appeal a judgmenton the ground that fact-finding was erroneous.
The Speedy Trial Procedure was introduced in October 2006 in order to enable prompt dispositionof minor cases and early release of defendants. In 2017, speedy trial procedure was invoked for a total of
723 defendants, and the majority of the cases were for violations of the Stimulant Control Act and the
Cannabis Control Act.

10

CCP Article 247.
In other words, “Analogical Institution of Prosecution through Judicial Action.” (CCP Articles 262 to 269).
12
The traffic infraction fine system (Pecuniary Penalty against Traffic Infractions) is a procedure under which a person who commits certain minor
offences in violation of the Road Traffic Law is exempted from criminal punishment by paying a sum of money fixed by law as an administrative
disposition. However, if violators fail to pay that fine, they are to be dealt with under a regular criminal procedure and are subject to criminal
punishment by the court.
13
The word "indict" or "indictment" used here means "an public action in criminal matters bringing a case to be tried in an open court", unlike the one
determined by the Grand Jury in the United States or cases to be tried in the Crown Court in the United Kingdom.
14
CCP Article 256.
11

－ 18 －

An example of a Kiso-Jo (translated into English) is included below:

Kiso-Jo (Charging Instrument)

The following case is hereby prosecuted.

14 May 2017
Tokyo District Public Prosecutors OfficePublic Prosecutor, KOUNO, Ichirou (his seal)

To Tokyo District Court:
Defendant
Permanent Domicile: Yoshida 823, Kawami-cho, Tama-gun, Fukuoka Prefecture
Present Address: Room Number 303, 1-2-3, Akihabara, Chiyoda-ku, Tokyo
Occupation: None
Under Detention
HIGASHIYAMA, Haruo (The defendant’s name)
17 April 1957 (The defendant’s birth date)Alleged Facts
At around 11 p.m. on 23 April 2017, on a street located in 2-4-7, Minami, Shibuyaku, Tokyo, the defendant, with intent to kill, stabbed MORITA Toshikazu (24 years of age)in the chest with a knife, thereby causing the death of Morita, who died from blood loss
attributable to the stab wound in the chest, at around 11:58 p.m. on the same day, at
YAMADA Hospital located in 3-1-23, Takao, Meguro-ku, Tokyo

Charged Offence and Applicable Penal Statutes
Penal Code Article 199－ 19 －

2.

Summary Prosecution (Request for a Summary Order)

A public prosecutor may prosecute a case in the Summary Court and ask for a summary order, which
is an order by a Summary Court sentencing the defendant to a fine not exceeding one million yen, or a petty
fine. In order to file a summary prosecution, a written consent by the defendant is required. There will be
no oral hearing or trial; a Summary Court judge will examine the case file sent from the prosecutor, andissue an order on that basis. A party dissatisfied with the order may, within 14 days, apply for a formal trial.
In practice, summary prosecution is used in cases where the case is not of a serious nature and where thesuspect admits the allegation.
Summary proceeding is an important part of the Japanese criminal process. A vast majority of minor
cases are disposed of by summary orders. In 2017, out of 329,517 prosecuted suspects, 245,529 (74.5%) weresummarily prosecuted, whereas 83,988 (25.5%) were indicted for formal trials. 15
C.

Non-prosecution of Cases
There are several grounds by which a public prosecutor decides not to prosecute. The most common
grounds for non-prosecution decisions are insufficiency of evidence and suspension of prosecution. Other
grounds for non-prosecution include, among others, “no offence committed 16” and “expiration of statute oflimitations.”
1.

Insufficiency of Evidence

Even if there is some evidence of guilt, public prosecutors will not prosecute unless conviction isvery likely. The threshold varies among countries, and Japanese prosecutors are very careful and selectivein screening cases. It is long established practice not to prosecute unless the prosecutor is certain of aconviction. In Japan, it is considered an irresponsible exercise of the prosecutorial powers, entrusted by
the people to the public prosecutors, to compel a citizen to defend him or herself against criminal
charges without the prosecutor being convinced that the evidence is sufficient to establish guilt. As aresult, the actual conviction rate is 99.9 percent.
2.

Suspension of Prosecution

Japanese prosecutors have broad discretion whether or not to prosecute, and they are authorized todrop cases even when there is enough evidence to secure a conviction. This disposition is called “suspensionof prosecution” and is provided for in Article 248 of the CCP, which reads “Where prosecution is deemed
unnecessary owing to the character, age, environment, gravity of the offence, circumstances or situation
after the offence, prosecution need not be instituted.”
The concept of discretionary prosecution contrasts with that of compulsory prosecution, which
requires prosecution to be instituted whenever a certain quantum of evidence exists. Discretionary
prosecution enables flexible dispositions in line with the specifics of each case such as the nature andseriousness of the offence committed, characteristics of the offender, and the victim’s feelings about thecase. It is also a form of diversion that offers offenders an early opportunity to return to society andrehabilitate themselves.
The following is an illustrative list of factors considered by prosecutors in deciding whether toprosecute the case.
(1)
(2)
(3)
(4)

The gravity of the offence and the harm caused thereby;
The offender’s character, age, criminal history, and risk of reoffending;
The circumstances relating to the commission of the offence: for example, motive, provocationby the victim, existence of accomplices and the role played by the suspect; andConditions subsequent to the commission of the offence: for example, whether the suspectassumes criminal responsibility, whether and to what extent restitution has been made,whether apologies have been made and the victim’s feelings have been restored, whether civil
settlements have been made between parties.

15

White Paper on Crime 2018, Ministry of Justice, Japan.

16

Th i s applies where, after investigation, there are sufficient reasons to believe that no crime has been committed by the suspect.

－ 20 －

Suspension of prosecution is broadly utilized in practice: of the 1,063,320 suspects
17
processed by public prosecutors in 2017, prosecution was suspended for 606,256 (57.0%) suspects.
D.

Cooperative Agreements

In June 2018, cooperative agreements were introduced in order to create a new measure to collectevidence while observing due process.
The public prosecutor and the suspect/defendant, upon the consent of the defense counsel, may enter
into a written cooperative agreement. In this agreement, the suspect/defendant promises to cooperate with
the investigation or prosecution (for example, by making a truthful statement during interview orinterrogation and by testifying before the court) with regard to the criminal conduct of anothersuspect/defendant. In return, the public prosecutor may agree to make a lenient disposition (e.g. suspensionof prosecution, prosecution of a less serious offence, or recommend a mitigated sentence to the court).
Cooperative agreements are applicable only to certain financial and economic offences, drug offences,
firearms offences, etc. as prescribed by law, and, if necessary, taking factors into consideration such as thegravity of the offence or the importance of the evidence that could be obtained through the witness’s
cooperation.
When the prosecutor, the suspect/defendant and the defense counsel reach an agreement, theprosecutor and the suspect/defendant have the obligation to carry out what had been agreed upon.
E.

Safeguards against Arbitrary Disposition

1.

Committee for Inquest of Prosecution

Committees for Inquest of Prosecution are lay advisory bodies that review non-prosecution decisions
by prosecutors. Every district has one or more Committees, and they consist of eleven lay people randomly
selected from among the district’s voters. Their purpose is to reflect the general public’s will in the process ofmaking prosecution decisions.
Victims and certain qualified parties dissatisfied with a prosecutor’s decision not to prosecute may
request a review by the Committee. Upon such a request the Committee reviews the case and gives one of thefollowing three recommendations: (i) non-prosecution is proper; (ii) non-prosecution is improper; or (iii)
prosecution is proper. The last recommendation requires a super majority vote of eight out of eleven
Committee members. Prosecutors generally have good reasons when they decline to prosecute, and during
the five-year period of 2012-2016, out of 10,600 cases decided on the merits, 8,752 (82.6%) haveresulted in a recommendation of “non-prosecution is proper.” 18
The recommendation is notified to the prosecution, and when the latter two recommendations are
made, the prosecutor reopens the case. Upon reinvestigation, they may reconsider their previous
decision and prosecute, or maintain their initial decision not to prosecute.
The Committee’s recommendations were formerly purely advisory, but from May 2009, if theprosecutor’s decision not to prosecute a particular case twice receives a recommendation of “prosecution
is proper,” a court will appoint an attorney, who will undertake the role of the prosecutor and prosecutethe case in accordance with the Committee’s recommendation. This is called “compulsory
prosecution.” However, in practice, the recommendation of “prosecution is proper” has not been given sofrequently. Since May 2009, there have been ten cases of compulsory prosecution (as of December 2017).
2.

Quasi-Prosecution

Quasi-prosecution is a procedure applicable to offences of “abuse of authority” by certain
government officials. If a person who has filed a complaint or accusation of such offences is dissatisfied
with the public prosecutor’s decision not to prosecute, the person may apply to a District Court to commit
the case to trial. This system is intended as a safeguard against unreasonable non-prosecution decisions
by prosecutors. However, in practice, prosecutors usually prosecute if the offence is serious enough andthere is sufficient evidence. Accordingly, the number of cases committed to trial has been few.
17
18

White Paper on Crime 2018, Ministry of Justice, Japan.
Ibid.

－ 21 －

F. Assistance and Protection for Crime Victims and Their Participation in the Criminal Justice Process1.

Victim Notification Programme

Victims of crime have legitimate interest in knowing the outcomes of the criminal cases arisingfrom their victimization. In 1999, the prosecutor’s office introduced the Victim Notification Programme
to keep victims informed of the progress and outcomes of their cases. Notification is not automatic. As
some victims prefer not to be contacted, notice is given to only those who have asked for it. (In addition,in cases where a complaint was filed, the public prosecutor has the obligation under law to notify thecomplainant, of the decision to prosecute or not prosecute, and upon the victim’s request, the reason for
non-prosecution when the case was not prosecuted.)
Information notified under the programme includes the following:
(1)
(2)
(3)
(4)
(5)

2.

Disposition of the case (e.g. prosecution for formal trial, summary prosecution, non-prosecution
or referral to the Family Court);
Venue and time of the trial;
The results of the trial (conclusion section of the judgment, status on appeal);
The perpetrator’s custody details, the indicted facts, summary of the reasons for nonprosecution, and other matters similar to those listed in (1) to (3); andThe matters concerning the perpetrator after conviction is finalized:• Name and location of the prison where the perpetrator is imprisoned.
• The possible schedule for release from prison (the scheduled date of release on completionof the sentence, parole) after the prison sentence becomes final.
• Treatment of the perpetrator in prison (updates are given around once every six months).
• The date when the perpetrator was actually released (release on completion of the sentence,parole).
• The date when suspension of execution of the sentence was revoked.
• The date when a decision was made for granting parole.
• The date when probation was commenced and the scheduled end thereof.
• Treatment during probation (updates are given around once every six months).
• The date when probation ended.

Victim participation and victim protection at the trial stage
Victim participation
Victims of crimes (including the victim's spouse, lineal relatives and siblings in cases where thevictim has died) may, among others, take part in criminal trials as victim participants. As victim
participants, they may, subject to the decision of the court, state their opinions on the facts of the case andthe application of the law (including on sentencing), question defendants for the purpose of stating theopinion on the facts of the case and the application of the law, and of the victim impact statement (seebelow), and question witnesses for the purpose of challenging the credibility of the testimony regarding
the aggravating or mitigating circumstances (except for matters related to fact-finding). Participation is
only permitted in cases of serious crimes such as homicide, grievous bodily harm or rape.
Statement of opinion (victim impact statement)
Victims may, among others, state their feelings about the harm they suffered and other opinions on the
alleged case.
Protection measures during trial
To lessen the burden on the victims when they testify in court as witnesses, or make a statement of
opinion, they may be (a) accompanied by family members or counsellors, (b) shielded from the defendantand observers, (c) seated in a separate room and questioned via video link. The first two measures areavailable if the victim attends the trial as a victim–participant.
Measures to protect the victim’s identity
In certain sensitive cases, there are procedures for protecting the victim’s identity from the public,
and in certain special cases, to the victim’s identity is withheld from the defendant. Protection measures－ 22 －

include non-disclosure of the victim’s name, address and other personal information.
Judicial compromise
There is a procedure for criminal settlement whereby the defendant and the victim may reach an
agreement in a civil dispute related to a criminal case; the content of that agreement is noted in the trial
record of the criminal case.
Restitution Order
When a victim has filed a claim for payment of compensation with a criminal court, the criminal court
continues to review the civil dispute after reaching a judgement of conviction in the criminal case, as anancillary procedure, and makes a decision on compensation.
3.

Compensation for crime victims
Crime victim benefits
The “Act on Support for Crime Victims, etc. Such as Payment of Crime Victims Benefits” provides
victims or families of deceased victims with crime victim benefits when compensation for damages is notreceived from the perpetrator. Eligible beneficiaries include victims who suffered serious injury or
disability or surviving family of a person who died due to homicide or an intentional criminal act.
Recovery of damages from confiscated assets
The “Act on Recovery Payments to be Paid from Assets Generated from Crime” provides victims etc.
with the right to recover damages from crime proceeds, or the equivalent value thereof, confiscated in thecriminal proceedings including assets recovered from foreign countries.
Damage-recovery benefit system
The “Act on Damage Recovery Benefits Distributed from Fund in Bank Accounts Used for Crimes”
pays damage-recovery benefits to victims of crimes such as fraud involving bank account transfers. It
provides a procedure to nullify the perpetrator’s deposits and distribute them as damage-recovery benefits
to the victims.
International Cooperation in Criminal Matters
1. Extradition
The requirements and procedures for extraditing fugitives from Japan are provided in the
Act of Extradition. Pursuant to the Act, the requirements for extradition are that the offence inquestion must not be a political one, that the offence must be punishable by death,imprisonment for life or for a long term of three years or more, that the principle of dual
criminality is recognized, that there is good reason to believe that the person in question has
committed the offence, and that the principle of reciprocity is guaranteed, among others.
When the person in question is Japanese, he or she may in principle not be extradited toanother country.
If there is a bilateral treaty, some requirements may be relaxed. Japan currently has
extradition treaties with the USA and South Korea. Moreover, there are multilateral treaties
with provisions on extradition to which Japan is a party, such as the United Nations
Convention against Transnational Organized Crime and the United Nations Convention
against Corruption.
2. Assistance in criminal investigation
The requirements and procedures for assisting in a criminal investigation when arequest for assistance has been received from another country are set forth in the Act on
International Assistance in Investigation and Other Related Matters. Under the Act, therequirements for assisting in investigation are that the offence in question must not be apolitical one, that the principle of dual criminality should be recognized, and that the principleof reciprocity should be guaranteed, among others. Requests for assistance shall be made to
the Minister of Foreign Affairs, which will be transmitted to the Minister of Justice.

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Where there is a relevant bilateral or multilateral treaty, some requirements may berelaxed and a request may be made between the central authorities (in Japan, the Ministry ofJustice for incoming and outgoing requests, and also the National Police Agency for outgoing
requests). Japan currently has concluded bilateral and multilateral treaties with the USA,South Korea, the People’s Republic of China, Hong Kong, the EU and the Russian Federation.
Moreover, a State Party to a multilateral treaty to which Japan adheres and which prescribesthat it may be used as a legal basis of mutual legal assistance, may base its request to Japan onthat treaty in accordance with the treaty requirements. Applicable multilateral treaty includes:
the United Nations Convention against Transnational Organized Crime, the United Nations
Convention against Corruption, and Convention on Cybercrime .

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