What happen if your family or friend is arrested in Japan?
The arrest and detention of a foreign famous manager has been reported every day and at the same time issues about Japanese criminal proceedings are also reported. I would like to take up the realities of the criminal proceedings.
Flow of the criminal proceedings
Given the case of being arrested or detained by detention, criminal proceedings will proceed as follows.
① Arrest
When police and other investigative organizations detect the fact of a crime, identify a suspect and judge that there is a need for arrest, request an arrest warrant from the court in advance, if the court finds that there is a reason for arrest, an arrest warrant comes out. The police arrest the suspect based on this arrest warrant.
② Detention before indictment
Since the police can detain for up to 48 hours even if the suspect is arrested, the police send documents and evidences to the prosecutor. If the prosecutor decide that it is necessary to detain the suspect for further investigation, he/she makes a request for detention and the court finds that there is a reason for detention, the court issue a warrant of detention for up to 10 days, so the detention will continue based on this warrant of detention. (The place for detention should not be a police station but a detention center (famous for the Kosuge Detention Center in Tokyo), but indeed, there are no places in detention centers and convenience for investigation etc. it is common that detainees continue to be detained in the police station.)
The detention period is for up to for 10 days, but the period is often extended for another 10 days by the prosecutor’s request. The prosecutor will decide whether to indict the suspect before the expiration of the detention period and will release the suspect unless indictment.
You may think that even if you get detention, you can be released on bail immediately. But it will not. Because bail is available after being prosecuted. The only thing you can do to be released immediately is to make an appeal against a judgment to issue the warrant of detention, but it is quite a narrow gate.
③ Detention after indictment
In the event that the prosecutor determines that it is necessary for the suspect to go to a criminal trial, it will file a indictment to the court and indict the suspect. And if the court judges that there is a requirement and necessity of detention after indictment, the detention will continue. The detention may be renewed without limitation of number of times, unlike the detention before indictment. So it is usual that if the suspect cannot prepare bail money, he/she will be detained for many months until the end of the trial.
Because there is a bail system for the detention after indictment, if you can prepare bail deposit and meet the requirements of bail, you will be released on bail before the trial ends. It is said that the bail deposit will be 1.5 million yen or more, and will be increased for foreign suspects.
Issues for Japanese Criminal Proceedings
As stated above, arrest and detention shall be made based on judgment of the court. This is because the detention is considered to be a serious constraint on human rights, so the judgment is left to the court, but in reality, the court is easy to admit arrest and detention claims as requested by the prosecutors.
In addition, attorney’s attendance is not allowed for interrogation of suspects who are detained, and interrogation in a closed room is one of the issues.
Also, as for the detention before indictment, bail is not allowed but, as mentioned above, there is a period restriction of 20 days. However the prosecutor can get over the 20 days restriction by re-arresting the suspect for an alleged fact B, after exhausting 20 days period for an alleged fact A. In this way, in practice the 20 days detention periods without way for bail is renewed many times and the limit of 20 days without bail is watered down.
In addition to being detained, communications with family members or friends may be prohibited. It is called a contact ban, it is often found when there is a danger of collusion with accomplices, there is a possibility of imminence to the witness or there is a danger of destroying the evidence, and the meetings and letters with non-counsel is prohibited. It is a heavy burden to the suspect being detained.
As stated above, the court often admits detention as requested by the prosecutor, an appeal against the detention is not easily accepted, and if multiple cases are alleged, it may take months to be released on bail.
For normal office workers, even for only 10 days detention, there is a danger to be fired by his/her company and if he/she deny guilty it is highly likely that the detention period will be extended for another 10 days and the danger to be fired will be increased. For this reason, in a minor case such as a molester, guys arrested tend to think that it is better to admit that he is guilty even if he is NOT, and be released for a few hundred thousand yen fine. These cases are regarded as false charge for molesting.
Recently courts and others may be carefully, but still there may be false charging to avoid unreasonable long term detention.
To solve these issues t is necessary to change the policy that investigations and trials are carried out without detention if the suspects are not likely to escape and the crime is minor.
What should you do if your family or friends are arrested?
In the criminal proceedings the means the suspect can take is limited, but 99.9% cases is ended up guilty, once indicted, while the proportion of indictment including summary trials is around 30%. For this reason, depending on types of cases, it is extremely important to avoid indictment, and for that reason the suspects should receive legal advice from a lawyer as soon as possible.
In such a case, there is also a system for defense of duty (“touban bengoshi”) which is free only for the first meeting, so please do use it by all means. Usually, interpreter service is also available.