Denial of Bail, Coerced Confessions, and Lack of Access to Lawyers
You are basically held hostage until you give the prosecutors what they want. This is not how a criminal justice system should work in a healthy society.
—Nobuo Gohara, former prosecutor, quoted in the Japan Times, January 5, 2019
The Nakamura family has lost faith in the Japanese legal system. Nakamura, a senior tax accountant, had pancreatic cancer when the police arrested him in October 2016 for fraud. His lawyer made multiple requests for bail to obtain adequate medical treatment, submitting medical evidence that the cancer had spread to Nakamura’s lungs, he had low blood pressure and blood sugar levels, and that his brain was not properly functioning.
The court rejected seven bail applications filed by Nakamura’s lawyer on medical grounds that his cancer was spreading. He was finally released in March 2017. The trial court and Court of First Appeal found him guilty. Nakamura died in May 2019 while awaiting the decision on his second appeal. His family alleges that the prolonged detention and the prison authorities’ failure to provide adequate medical services contributed to his death.
In another case, Tomo A. was arrested in August 2017 for allegedly causing the death of his 1.5-month-old child by allegedly shaking the baby in a way that led to brain damage. The authorities initially presented insufficient medical evidence to him that the shaking was the cause of death. But they investigated Tomo A. and his wife for around 10 months before arresting him. During the approximately nine months he spent in detention awaiting trial and during the trial itself, the prosecutors told him that either he or his wife must have killed their baby and that his wife would be prosecuted if he did not confess. He refused to do so and was acquitted in November 2018 at the District Court. The court of appeal decision also acquitted him in March 2020.
Japan has a legal system widely regarded internationally as competent and impartial, but its criminal justice system functions on laws, procedures, and practices that systematically violate the rights of accused persons. The problems are so deep and so ingrained that domestic critics have nicknamed it the “hostage justice system” (hitojichi-shiho), reflecting that suspects are frequently detained prior to trial for long and arbitrary periods—sometimes for up to several months or over a year—to obtain their confessions.
The problems are so widely known that the Japanese language has a word, “enzai,” for false accusations that lead to a person becoming a victim of the justice system. The mission statement of a magazine documenting miscarriages of justice describes enzai:
Even though you’re innocent, you get treated as a criminal. [That’s] enzai. If one person spends their entire life appealing their innocence, they’ll find the walls of justice are incredibly thick. Even if you win a not-guilty verdict, the time stolen from you will never come back. You may never recover the job, family, friends, and financial stability.
This report, based on dozens of interviews with former detainees and their family members, lawyers, prosecutors, and legal experts, documents the routine denial of bail; detention of suspects to obtain confessions; questioning of detainees who wish to remain silent or have asked for a lawyer; questioning of detainees without the presence of a lawyer; and the repeated arrests of detainees to prolong pre-indictment detention. This mistreatment is facilitated by the detention of most suspects in cells inside police stations, where there is almost constant surveillance, including during mealtimes and at the toilet, instead of holding them in specialized detention facilities.
These practices cause great personal hardship and lead to wrongful convictions. They violate internationally guaranteed rights to due process and a fair trial, and to be free from cruel, inhuman, and degrading treatment. Many of these rights are also protected under Japan’s 1946 Constitution, including the right of every detainee to immediate access to legal counsel, the right to due process, and the right against self-incrimination.
Denial of Bail
Problems with the criminal justice system start with suspects being ineligible to apply for bail before indictment and the routine denial of bail by the courts even after indictment to those who remain silent or those who challenge their charges.
Japan’s Code of Criminal Procedure allows suspects to be detained up to 23 days before indictment. Articles 203(1) and 205(1) of the Criminal Procedure Code mandate that suspects be brought before a judge within 72 hours of arrest should the prosecutor believe it is necessary to detain them. Pre-indictment detention is limited in principle to 10 days maximum and this extension to a maximum of 10 days is granted only when there are unavoidable circumstances. However, the courts routinely grant two 10-day extensions of the detention, allowing for a 23-day maximum period between arrest and indictment.
The International Covenant on Civil and Political Rights, to which Japan is a party, states that anyone arrested or detained on a criminal charge be “promptly” charged before a court. The United Nations Human Rights Committee, the international expert body that provides authoritative analysis of the Covenant, has said that 48 hours is ordinarily sufficient time to bring someone before a judge and that any longer delay “must remain absolutely exceptional and be justified under the circumstances.”
The Code of Criminal Procedure does not empower the judge who has imposed pre-indictment detention to provide bail. Even after a detainee is indicted and allowed to request bail, those who have not confessed or have remained silent typically have a much harder time persuading a judge to approve their bail request. Judges frequently rule that such defendants are risks to “destroy evidence,” resulting in prolonged and unnecessary detention periods before trial.
Many former detainees and defense lawyers told Human Rights Watch that the denial of bail is used to pressure detainees to confess and as a form of punishment.
Yusuke Doi, a musician, was held for 10 months without bail after being arrested on suspicion of stealing 10,000 yen (US$90) from a convenience store. His application for bail was denied nine times. Even though he was ultimately acquitted, a contract that Doi had signed with a record company prior to his arrest to produce an album was cancelled, resulting in financial loss and setting back his career.
Takashi Takano, a lawyer and academic (former professor at Waseda Law School, Waseda University), points out that suspects are offered release if they “tell the truth,” which in practice means: “Confess, no matter whether true or false.” According to Jeffrey Kingston, director of Asian studies at Temple University, Tokyo: “Lengthy pre-trial detention allows prosecutors to isolate and pressure detainees into signing a confession. Detainees who claim innocence are subjected to prolonged detention until they implicate themselves. Bail is extremely difficult for anyone who does not confess.”
Multiple Arrests to Prevent Bail Applications
One of the most egregious ways that prosecutors and police abuse the criminal justice system is by filing new claims related to the same case to circumvent the legal limitation of a maximum of 23 days of pre-indictment detention. Investigators are supposed to finish interrogating a suspect at the end of the pre-indictment period. But they can continue to do so by starting a new pre-indictment detention period by carrying out a new arrest. Suspects remain ineligible for bail until the most recent pre-indictment detention period is over.
Prosecutors repeatedly make new arrests on new charges to induce confessions. After each new arrest, the pre-trial detention period restarts. Police and prosecutors achieve this by splitting a single case into parts. For example, when a corpse is found, suspects are routinely first detained on the charge of “corpse abandonment” and then, a maximum of 23 days later, rearrested for murder.
This practice is used to pressure a detainee into confessing. One person explained what happened after he was charged with manipulating stock prices:
On the evening of the date of expiry of the detention period, I was told that I had been released and was free to go. I gathered my belongings—comforter and clothes—and left. As soon as I left the detention center, I was arrested outside the building and taken to the police station detention facility and the whole procedure started again. The prosecutor told me that the charge against me was manipulating the price of a stock for one year and they can break it up into two months per charge and arrest me six times for interrogation, and it was better for me to just confess. The prosecutors would yell at me constantly saying, “You are not even human.”
Abusive Interrogations to Obtain Confessions
While reports of violent abuse of suspects are rare in recent cases, investigating officers in Japan have used intimidation, threats, verbal abuse, and sleep deprivation to compel suspects to confess or provide information in violation of international legal protections and contrary to constitutional guarantees.
The Japanese Constitution states that “no person shall be compelled to testify against himself” and a “confession made under compulsion, torture or threat, or after prolonged arrest or detention shall not be admitted in evidence.” It also mandates that no one shall be convicted when the confession is the “only incriminating evidence.”
According to the Japan Federation of Bar Associations:
It is not uncommon that illegal and unreasonable interrogation tactics such as coercive pressure and dispensation of favors are used by investigators, resulting in suspects unintentionally confessing crimes they have not committed. Even if the suspect argues at trial that the interrogations were illegal or unreasonable, there are no means to objectively prove it so that it is possible that false charges could result.
Often, confessions are the result of coercion. The extended pre-trial detention, the prohibition on lawyers being present during interrogation, and the nearly automatic conviction rate for cases that go to trial foster an environment for involuntary confessions. While the law on the books requires the prosecutors to prove the voluntariness of the confessions, in practice, courts require the accused to prove that a confession was made under coercion.
Prohibitions on Communications with Family and Others
Japanese law allows courts to issue a “contact prohibition order,” which puts additional pressure on detainees to confess. These are issued routinely and restrict detainees to meeting and communicating only with their lawyers. They are not allowed to meet, call, or even exchange letters with anyone else, including family members.
Many individuals interviewed by Human Rights Watch cited this ban on communications as a cause of significant anxiety while in detention.
In 2015, Kayo N. was arrested for conspiracy to commit fraud. Kayo N. said that she worked as a secretary at a company from February 2008 to October 2011. In December 2008, the company president asked her to become the interim president of another company owned by her boss while a replacement was sought. She says that she was unaware that the company only existed on paper and that her boss had previously been blacklisted from obtaining loans. After her arrest and detention, the judge issued a contact prohibition order on the grounds that she might conspire to destroy evidence. Kayo N. was not allowed to see anyone but her lawyer for one year, could not receive letters, and could only write to her two adult sons with the permission of the presiding judge. She said:
After I was moved to the Tokyo detention center, I was kept in the “bird cage” [solitary confinement] from April 2016 to July 2017. It was so cold that it felt like sleeping in a field, I had frostbite. I spoke only twice during the day to call out my number. It felt like I was losing my voice. The contact prohibition order was removed one year after my arrest. However, I remained in solitary confinement.
Kayo N. said she did not know why she had been put in solitary confinement. She says that police also interrogated her sons to compel her to confess. The long trial process also exacerbated financial hardships. She was sentenced to three years’ imprisonment.
Unaccountable Prosecutors
Prosecutors exercise wide and often unchecked power in Japan’s criminal justice system, which lawyers and academics often refer to as “prosecutors’ justice.” As in many other countries, prosecutors have the exclusive power to indict. But a judge’s power to dismiss prosecutions is extremely limited and is rarely done over the objections of prosecutors unless there are apparent mistakes in the prosecution.
Japan has a 99.8 percent conviction rate in cases that go to trial, according to 2021 Supreme Court statistics, so the decision to indict or not has enormous significance. One scholar, Prof. Kana Sasakura, says that trials are often reduced to “ceremonies for ratifying prosecutors’ decisions.”
Prosecutors exercise great control over investigations and the use of information obtained during an investigation. Despite reforms in recent years, prosecutors can withhold even key evidence from the defense and from the public at trial, unless it is submitted to the court as evidence. Evidence disclosure amendments introduced by recent reforms are exceptions, but they are only applicable to a minority of cases in which judges decide to use a “pre-trial arrangement proceeding” or “inter-trial arrangement,” including those tried by saiban’in, the lay judge system, in which judges, prosecutors, and lawyers discuss disputed points, evidence to be examined, and the plans for the trial process.
Even in the small number of cases using these procedures, prosecutors are not obliged to fully disclose evidence. The requirement to disclose is limited in practice to when the court directs the prosecutors to disclose the particular evidence at the evidence examination stage of the trial, in cases where accused/legal counsel identifies specific evidence to the court and the court chooses to invoke court's authority to direct court procedure. This is a lengthy process, sometimes longer than a year.
Prosecutors sometimes compose statements that differ from what suspects have said. While many detainees refuse to sign false statements, others succumb to pressure or confusion and sign them.
Crucially, prosecutors’ requests to keep a suspect in detention are rarely denied. According to the Justice Ministry, 94.7 percent of prosecutors’ requests were approved in 2020. During detention, there is minimal judicial oversight of investigations, including whether the time requested is necessary.
Substitute Detention System
The Japanese Code of Criminal Procedure mandates that a criminal suspect must be brought before a judge within 72 hours of arrest (within 24 hours of the filing) if the prosecutor believes it is necessary to further detain the suspect. In the event that detention is allowed, the suspect is supposed to be sent to a specialized detention center under the control of the Ministry of Justice.
However, in practice, a specialized detention center is rarely used before prosecution and suspects are instead held at police stations during the initial detention period, where police investigators are usually located. Most often, suspects are transferred from the police station to the detention center only after indictment, when the pre-indictment period available for interrogation is over. This is commonly referred to as the “substitute detention system” (daiyo kangoku).
In 2018, the UN Human Rights Council in its concluding observations on Japan’s universal periodic review recommended abolishing the substitute detention system, contending that it “increases the risk of prolonged interrogations and abusive interrogation methods with the aim of obtaining a confession.”
Lack of Adequate Health Care
Healthcare services in Japan’s penal detention facilities are understaffed and overstretched. In 2013, approximately 260 full-time doctors worked at penal institutions, compared to 316 in 2003, far below the 332 doctors needed according to Justice Ministry figures.
Under the International Covenant on Economic, Social and Cultural Rights, which Japan ratified in 1979, the Japanese government has an international legal obligation to protect and provide for the health care of everyone in government custody. The UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) provide that prisoners “should enjoy the same standards of health care that are available in the community.”
Insufficient Reforms
Attempts at reforming Japan’s criminal justice system in the past two decades have failed to address fundamental problems. Reform attempts in 2004 included expanding the requirements of evidence disclosure by the prosecution and extending access to court-appointed lawyers in the pre-indictment period for serious offenses. However, these reforms did not address systemic and widespread problems in the investigation process. Prof. Kana Sasakura noted:
The main troubling features of the Japanese criminal process were preserved, including the domination of the process by prosecutors to the detriment of suspects and their legal counsel as well as the judiciary (commonly referred with derision as “kensatsukan-shiho” [justice owned by prosecutors]. The process still lacked transparency, and the outcome of the case was still decided in closed interrogation rooms without the participation of legal counsel, and not in open court.
A lay judge system (saiban-in) was put in practice in May 2009 to increase public participation in the judicial system. Six lay judges appointed from among the public now serve alongside three professional judges in cases involving serious crimes, including those punishable by death and indefinite imprisonment, and intentional criminal acts intended to cause death. Lay judges preside over cases but are not involved in indictments.
In May 2016, the Code of Criminal Procedure was amended to require audio and video recording of interrogations in cases involving serious crimes and where the prosecutors conduct their own investigation. Yet according to statistics compiled by the Japanese Federation of Bar Associations, the cases mandated by law to have audio and video recording are fewer than 3 percent of all criminal cases. Crucially, interrogations of witnesses or suspects who have not been arrested are exempt from recording, even in the specified category of cases.
United Nations Criticism
In 2013, the UN Committee against Torture expressed concerns about the use of confessions obtained without the presence of a lawyer to secure convictions. The committee also recommended that conditions of detention facilities be improved in line with the newly revised UN Standard Minimum Rules for the Treatment of Prisoners.
In November 2020, the UN Working Group on Arbitrary Detention, in response to claims by Carlos Ghosn—a foreign business executive facing charges of financial irregularity and fraud—observed that the process of arresting and detaining Ghosn was fundamentally unfair as it prevented him from regaining his liberty and from enjoying other fair trial rights, including to freely communicate with legal counsel. The opinion noted that “solitary confinement, the deprivation of exercise, constant light, and the absence of heating, as well as limited contact with family and legal counsel” compromised the suspect’s capacity to defend himself.
The Japanese government responded by calling the opinion “totally unacceptable,” and stated:
Japan’s criminal justice system sets out appropriate procedures and is administered properly to clarify the truth in criminal cases while guaranteeing the fundamental human rights of individuals concerned. In addition, detainees awaiting a judicial decision at institutions for detention receive treatments which respect their human rights.
In 2014, the UN Human Rights Committee recommended that the Japanese government provide alternatives to detention, including bail, during the pre-indictment period and the right to have a lawyer present during interrogation.
The Human Rights Committee also called for the abolition of the substitute detention system. However, the government’s response did not address the fundamental problems raised by the committee:
The detention of suspects in police detention facilities was very convenient, allowing families to visit the suspect and the lawyer to regularly visit the suspect. It was not realistic to prohibit the use of detention facilities in police stations. Detainees could appeal to a public detention commission. Detained suspects were always immediately advised that they could choose a lawyer for their defense. If a person could not afford a lawyer, a court would appoint one.
