An overview of the criminal law system in Japan

Disclaimer

Information on this webpage is provided as a public service by the Government of Canada. While every effort is made to provide accurate information, information contained here is provided on an "as is" basis without warranty of any kind, express or implied. The Government of Canada assumes no responsibility or liability of any kind and shall not be liable for any damages in connection to the information provided. This publication is not intended to provide legal or other advice and should not be relied upon in that regard. The reader is encouraged to retain a lawyer, if arrested or detained, and to supplement this information with independent research and professional advice. The information on this webpage is updated on a regular basis; however, laws are subject to change at any time.

Context

This document is intended to give you basic information on how the Japanese criminal law system functions. It is not a substitute for legal advice, which can only be provided by a lawyer qualified to practice in Japan. It should also be read in conjunction with the brochure A Guide for Canadians Detained Abroad.

If you break the laws of another country, you are subject to the judicial system of that country. Being a foreigner or not knowing the local laws is not an excuse. Your Canadian passport will not get you out of detention or prison. Global Affairs Canada can neither protect you from the consequences of your actions nor override the decisions of local authorities.

The Japanese and Canadian criminal law systems are significantly different. This can increase the stress and practical problems arising from arrest and imprisonment in Japan. For example, please note that in Japan:

The Government of Canada will seek to ensure that you are not penalized for being a foreigner and that you are neither discriminated against nor denied justice because you are Canadian. It cannot, however, seek preferential treatment for you or try to exempt you from the due process of local law. The Government of Canada cannot interfere in the judicial system of another country, just as Canadians would not stand for another government interfering in Canada’s judicial process.

For further information on the services consular officials can and cannot provide, consult the brochure A Guide for Canadians Detained Abroad.

Introduction to the Japanese legal system

The legal system of Japan is based upon civil law. Under Japanese criminal law, the accused is innocent until proven guilty and the burden of proof rests with the prosecutor. The defendant must be given the benefit of the doubt.

Should an accused be convicted of committing an offence, he or she will be subject to the punishment as prescribed by law. The procedure followed in a criminal case is the same throughout Japan; the basic provisions governing criminal offences can be found online at Penal Code and Rules of Criminal Procedure.

The role of the public prosecutor is to present facts and information to the court to establish the guilt of a defendant and request the court to punish the defendant in accordance with the provisions of the law. The decision to plead “guilty” or “not guilty” is entirely the decision of the defendant.

The court system in Japan consists of summary courts, district courts, family courts, high courts and the Supreme Court of Japan. For criminal cases, a three-tier court system is used: a summary or district court (first instance), a high court (second instance) and finally, the Supreme Court (appeal).

Legal counsel

Your choice of legal representation in Japan can be critically important and should be made with care. Canadian consular officials can provide a list of lawyers who have expertise in your particular type of case and who may have represented Canadians in the past.They cannot, however, select or recommend a specific lawyer. You may prefer to hire a lawyer who is not on the list. This decision remains your responsibility. For further information, please consult the section on selecting a lawyer in the brochure A Guide for Canadians Detained Abroad.

Private lawyers in Japan can be expensive, and costs may increase according to the number of visits before trial, the number of appearances in court and the amount of work involved.

Contact us for a list of English and French-speaking lawyers by prefecture: TokyoConsular@international.gc.ca

If you are unable to hire a private lawyer, you may ask for a court-appointed lawyer. These are not available immediately after arrest, unless you are accused of a crime with a possible sentence of more than three years in prison. In that circumstance, you can ask for a court-appointed lawyer immediately. If you are accused of a minor crime, a court-appointed lawyer may only be available after an indictment (a formal accusation of a crime).

As court-appointed lawyers also have private clients, there could be a delay between the lawyer’s appointment to your case and the start of your trial. The number of visits you can expect from a court-appointed lawyer varies significantly; in general, you can expect more visits when you hire a private lawyer.

If necessary, the lawyer will bring an interpreter. The Japanese government generally pays the costs of a court-appointed lawyer and a court interpreter, but this is at the discretion of the judge. You may be deemed liable for court costs. Private lawyers generally include interpretation costs in their legal fees. You should discuss with your lawyer what costs may be charged to you.

If you need a lawyer before you qualify for a court-appointed lawyer, you can request that the police contact the next available lawyer under the duty attorney or toban bengoshi program. This lawyer will meet with you for an initial, free consultation. If an interpreter is required, the local bar association will cover the cost. Should you decide then to hire this lawyer, you must pay for subsequent services. You can find contact details through the Japanese Federation of Bar Associations’ Centre for Criminal Defense Duty: Attorneys Contact List.

Arrest and detention

Please note: Japan is an INTERPOL member country; you may therefore be subject to an INTERPOL Notice.

Japanese criminal law is applicable to both citizens of Japan and foreigners who commit crimes within the territory of Japan.

Arrest in Japan usually involves a lengthy stay in police detention. If you are detained, even for minor offences such as petty theft or possession of very small quantities of illegal drugs, you may be held in detention for an extended period during the investigation and legal process. If you are detained by police for questioning, the initial interview may last several hours. You can ask the police to provide an interpreter; the police may also request one if they feel it is necessary. These interpreters are paid by the police service. The skills of Japanese-English interpreters can vary greatly, and skilled Japanese-French interpreters are not as easily available.

In rare cases where the arrest is groundless, the public prosecutor may authorize compensation if you are detained and released without an indictment. You also have the right to sue for compensation from the prefectural government that has jurisdiction over the police or prosecutor involved in your case, if you have suffered damages due to errors they may have made. You should speak to your lawyer if either of these situations may apply to you.

Your rights under the Vienna Convention on Consular Relations

If you are detained or arrested abroad and wish to have Canadian consular officials notified, you should communicate that request clearly to the Japanese authorities. The Japanese authorities have an obligation, under the Vienna Convention on Consular Relations, to advise you of your right of access to a consular representative. They are not, however, obliged to inform a Canadian consular post of your detention or arrest, unless you ask them to do so.

Under the convention, Japanese authorities are also required to forward to a Canadian consular post any communication you address to the consular post. For example, if you write a letter to the Embassy of Canada or another Canadian consular office in Japan, that letter must be delivered. This is in accordance with your rights to communicate with, and have access to, a consular official. These rights must be exercised in conformity with the laws and regulations of Japan.

If you choose to talk to Canadian consular officials, any information you give them will remain confidential, subject to the provisions of Canada’s Privacy Act. It will not normally be passed on to anyone other than the consular officials concerned with your case without your permission. However, under the Privacy Act, personal information may be disclosed in certain circumstances, such as in cases where disclosure would clearly benefit you, where the public interest in disclosure clearly outweighs any invasion of your privacy, or pursuant to a court order. Please consult the Consular Services Privacy Notice Statement for more details.

At your meeting with a consular official, please inform him/her if the Japanese authorities did not inform you of your right to request that Canadian officials be advised of your arrest or detention, or at any time denied you the right to communicate with, or have access to, a Canadian consular official.

Upon arrest, Canadian citizens with dual citizenship are asked to choose one country of citizenship from which to seek consular support. The Embassy of Canada may be limited in its ability to provide you with consular services if you choose to seek assistance from the country of your other citizenship.

The preliminary investigation

If you are arrested, you can be held for up to 23 days, with a possibility of extension, without being formally charged with a crime. First, the Japanese police may detain you for up to 48 hours. During this time, they are required to inform you of the crime of which you are suspected, of your right to remain silent, of your right to hire a lawyer at your own expense and of your right to have the Embassy of Canada notified of your arrest. Under Japanese law, the police are allowed to begin their initial questioning before you see a lawyer.

If the police decide, within this 48-hour period, that there is enough evidence to justify detaining you further, they must present the evidence to a public prosecutor. If the prosecutor agrees with the police, he/she has up to 24 hours to ask for an initial 10-day detention order from a judge so that the police can continue their investigation. The prosecutor can request a second 10-day detention period to continue the investigation, if necessary. If there is not enough evidence, the case may be dropped.

Under exceptional circumstances, for a limited number of very specific crimes, this period could be extended by another five days, for a total of 28 days in detention from the time of arrest. You should proactively monitor the progress of your case and discuss the length of your detention with your lawyer.

At each of the detention hearings (held to determine whether you will be detained longer or be released), you will normally appear before a judge and you may be asked to testify on your own behalf.

By the end of this detention period, the prosecutor must either ask the court for an indictment or release you. Time limits for the detention period apply to each suspected crime. If you are suspected of more than one crime, you may be legally released at the end of detention period and then rearrested for another crime, leading to a longer total detention period before indictment.

For minor offences, there have been cases where a sincere apology and an offer of reparation to any victim of the crime have led to an early release. If you deny any charge against you, however minor, this generally leads to an indictment and a period of detention while the police investigate fully.You should ask your lawyer how these options may apply to your circumstances.

There is no bail in the Japanese legal system before indictment. After indictment, bail is rarely granted to foreigners without residence in Japan.

The criminal trial

If the prosecutor believes that the investigation produced sufficient evidence that you committed a crime, you will be brought before a judge to be formally indicted. Prosecutors in Japan generally do not take a case to trial unless they are convinced they can win. About three quarters of all cases are dropped prior to indictment. Statistics from the Japanese Ministry of Justice show that, between 2002 and 2011, the conviction rate in Japan after indictment was more than 99 percent.

In Japan, there are two main forms of prosecution: formal trials and summary procedures. For serious offences with a penalty of imprisonment, you will have a formal trial even if you admit guilt. Summary procedures are limited to minor offences with fines not exceeding ¥1,000,000, an admission of guilt and victim compensation (if applicable). In summary procedures, your sentence is provided within 14 days of the date you are indicted.

If the punishment under the law for a crime is not severe, a single judge may preside over the trial. Otherwise, a three-judge panel is generally required. In very serious cases, the lay-judge or saiban-in system is used. Six members of the general public are selected at random and tasked with sitting alongside the three-judge panel. Saiban-in proceedings are generally conducted for serious crimes including homicide, robbery causing death or injury, drug offences, arson of inhabited buildings and kidnapping for ransom. You should ask your lawyer which system may apply to your circumstances.

You will have the opportunity to make a statement and enter a plea at the beginning of the court proceedings. Trials focus on the examination of evidence (including witnesses’ testimony), and hearsay evidence is generally not allowed.

Duration of a trial and sentencing

If a case is not resolved in one hearing, additional dates are scheduled anywhere from several days to several weeks later.Trials can last for extended periods, depending on the complexity of the case. If you plead guilty to a minor offence, the trial could be resolved in one or two hearings, as long as the prosecutor can present corroborating evidence. If your case is subject to saiban-in proceedings, trial sessions will be held on successive days.

After hearing closing arguments by the defence and prosecution, the judge(s) will set a date to deliver the verdict and sentence.

Under Japanese law, if there is reasonable doubt concerning your guilt, the presiding judge(s) must render a verdict of not guilty and you must be compensated for your detention by the Japanese government. A not-guilty verdict does not necessarily guarantee your release, as prosecutors may appeal. If the prosecutor requests an appeal, you may be detained until the next trial date.

If you are found guilty of a relatively minor offence, you may receive a suspended sentence of one to five years (meaning you would not have to go to prison). If you are not convicted of another offence in Japan during that time, your sentence would be cancelled. If you are convicted of another offence in Japan during the suspension, you would have to serve both the initial sentence and the new sentence.

If you receive a custodial sentence (that is, not a suspended sentence), you must pay all applicable fines and/or serve your sentence in Japan. Prisoners normally receive partial credit for time served prior to conviction, but this is not an automatic right and is at the discretion of the judge. The remainder of your sentence will generally be spent in prison with hard labour, for which you will receive a nominal wage. If your sentence includes a fine as well as imprisonment, you can use this wage to help pay your fine. You will be detained until the fine is paid. If you are unable to pay the fine, you will have to serve extra time at a rate of one day’s imprisonment for each ¥5,000-10,000 owed.

In some cases, supplementary fines or tsuichoukin are imposed. Designed to confiscate all proceeds from a crime, tsuichoukin cannot be paid off through labour wages while in prison. If you have been fined for a crime involving personal financial gain, you should consult your lawyer to learn how you can pay the fine.

Parole is rarely granted, and generally not before at least two thirds of the sentence has been served. You should discuss parole options with your lawyer.

Appeals

A first appeal (koso) can be requested in writing by the defence or prosecution within 14 days of your conviction. If the defence appeals, the high court will not impose a higher sentence. If the prosecution appeals, the high court can increase the sentence. A high court has the power to reverse a lower court decision, alter a sentence or return a case to the lower court for retrial. Prisoners filing an appeal are held at the prison facility nearest the high court hearing the appeal. Before filing an appeal, you should ask your lawyer if you may be transferred from one detention centre to another.

High court decisions may also be appealed to Japan’s Supreme Court if questions of constitutional law are involved. This second appeal (jokoku) considers the application of laws and procedures in the lower court decisions, rather than the facts of the case. It does not require the presence of witnesses or defendants.

Deportation

Whether you will be deported as a result of a criminal offence depends on your residential status (for example, your visa), your sentence, and the type of crime committed. If you are subject to deportation, you will be detained at a local immigration centre upon your release by the police or prison. A deportation order will be issued within 60 days from the beginning of this immigration detention. If you have strong ties to Japan, especially a spouse or children living in Japan with valid status, you may be given a special permission of residence instead of a deportation order. Being in detention is not considered an excuse for overstaying the period of your current residential status.

If you receive a deportation order, you can be deported within a few weeks at your own expense. If you cannot sponsor your own flight, you will be detained in the immigration centre until you receive financial assistance from your family or friends.

Transfer to a Canadian prison

Canada has a transfer of offender treaty with Japan that enables Canadians convicted of offences in Japan to serve their prison sentence in a Canadian penal institution if both the Canadian and Japanese governments consent to the transfer. Transfers are not automatically granted. An application for transfer can be submitted only after you have been convicted and sentenced, and there are no legal processes pending.

At least six months of your sentence must remain at the time you submit your request for a transfer. Japanese authorities require that at least one third of your sentence be served in Japan before a transfer will be considered. You will not be eligible for transfer until this minimum portion of your sentence is served in Japan and all outstanding fines or restitution that are imposed as part of the sentence have been settled monetarily or through compensatory labour. It routinely takes an extended period to process a transfer after approval has been granted and one third of your sentence has been served.

You should consult your lawyer if you are considering applying for a transfer. You should also ask your consular officer for general details on transfers from Japan to Canada. For further information on transfer requests, please consult the brochure A Guide for Canadians Detained Abroad.

Seeking clemency in death penalty cases

In Japan, sentences for serious crimes, such as murder, may include the death penalty. If you have been charged with or convicted of a crime punishable by death, consult your lawyer.

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