Resolution Calling for Fundamentally Reforming the State of Interrogations and Achieving the Audio and Video Recording of the Entire Process of Interrogations in All Cases, as well as Establishing the Right to Have Defense Counsel Present at Interrogations
In Japan, investigative authorities have conducted interrogations in which such authorities keep citizens under suspicion detained for a long period of time and obtain statements from such citizens that match the authority’s belief. In some cases, such authorities have used speech and behavior that inflicts emotional distress on detained citizens by warning them of possible adverse consequences and making them feel anxious as a method to obtain statements. Oral evidence obtained through illegal and unjustifiable interrogations has caused errors in finding facts during criminal trials, resulting in many miscarriages of justice. The Saiban-in (Lay Judge) System was implemented in 2009 for the purpose of shifting to a trial-centric approach, but the reality is that trials have in essence remained unchanged. After a series of cases involving miscarriages of justice were revealed, including the Shibushi case, the Himi case, the Ashikaga Case, the Fukawa Case, and a postal fraud case involving a former Director-General of the Ministry of Health, Labour and Welfare, the Special Subcommittee on the Criminal Justice System for a New Era of the Legislative Council ("the Special Subcommittee") was established in 2011 for the purpose of re-evaluating the state of investigations and trials which heavily rely on interrogations and confession statements. In 2016, the audio and video recording of interrogations was introduced after the enactment of the Act Partially Amending the Code of Criminal Procedure and Other Acts (Act No. 54 of 2016, "the amended Code"), the bill for which was compiled by the Special Subcommittee. Under the amended Code, the audio and video recordings of interrogations of arrested or detained suspects is now required for cases to be tried in Saiban-in trials as well as cases in which public prosecutors conduct their own investigation.
However, even after the introduction of audio and video recording of interrogations in June 2019, illegal and unjustifiable interrogations continue to occur. Furthermore, it has been revealed that some interrogations are not recorded and some interrogators even conduct illegal and unjustifiable interrogations while being recorded. Subjecting innocent citizens to such interrogations is a serious human rights violation that has the potential to destroy their lives, yet it still happens repeatedly. Well known examples of this are a case involving Pressance Corporation Co., Ltd. and a case involving Ohkawara Kakohki Co., Ltd.
The scope of the implementation of the audio and video recording of interrogations was set as above with the amended Code based on an opinion expressed by experts as a member of the Special Subcommittee that the audio and video recording of the entire process of interrogations (making interrogations transparent) should be expanded in stages. It was agreed unanimously with the condition that a review be conducted to re-evaluate the state of the implementation of the Act a certain period of time after its implementation. In July 2022, the Council on the State of Criminal Proceedings Concerning the Amended Code was established for the purpose of carrying out this review. However, the Ministry of Justice has refused to include actual cases involving illegal and unjustifiable interrogations, which are revealed through audio and video recording media used during interrogations, in the scope of such reviews by the Council. The Ministry’s attitude clearly shows their intention to prevent the true reality of interrogations from becoming widely known. In this view, it is impossible to say that the review on the state of the implementation of the Act is progressing as intended by the Special Subcommittee.
In the meantime, it is a publicly known fact that illegal and unjustifiable interrogations are repeatedly happening even after the implementation of the audio and video recording of interrogations. Based on the audio and/or video recordings on media implemented by investigative authorities or suspects, there is no denying the fact that investigative authorities keep suspects detained in an interrogation room for a long period of time while repeatedly acting in a manner that denies suspects’ integrity as a human being, as well as being intimidating toward those who exercise the right to remain silent, among other things. During some interrogations, interrogators even inflict severe emotional distress on suspects and force them who make statements that do not match the authority’s belief into changing their statements by warning them of possible adverse consequences and making them feel anxious.
The current state of interrogations must be reconsidered fundamentally. Interrogations are, by nature, a series of procedures in which suspects are asked to give statements on a voluntary basis, and voluntary statements given are heard and preserved. Interrogations are not to be used by investigative authorities as a means to generate oral evidence that matches the authority’s belief.
The objective recording of the situation in which an interrogation is taking place is required to deter illegal and unjustifiable interrogations, which should apply to all cases. There is no question that leaving the decision on the scope of the implementation of the audio and video recording of interrogations to the discretion of investigative authorities cannot deter illegal and unjustifiable interrogations. In this view, the implementation of the audio and video recording of interrogations should be expanded, and the audio and video recording of the entire process of interrogations of all suspects, regardless of whether they are arrested or detained, as well as all witnesses, should be required in all cases.
Furthermore, interrogations in which interrogators inflict severe emotional distress or force to change statements are continuing to happen even after the audio and video recording of interrogations was implemented under the amended Code. Reflecting on this reality, the right to not be compelled to testify against oneself under Article 38, paragraph 1 of the Constitution must be substantially guaranteed by deterring illegal and unjustifiable interrogations, thereby ensuring the freedom to choose to make statements or not. To this end, a clear restriction on keeping suspects who are expressing their intention to not make statements detained in an interrogation room, as well as the right of suspects to have defense counsel present at interrogations, need to be established.
The Japan Federation of Bar Associations (the "JFBA") calls on the government to fundamentally reform the current interrogation practice of keeping suspects detained in an interrogation room and obtaining statements from them that match the investigative authority’s belief, as well as carrying out the following.
1. Review the implementation of the audio and video recording of interrogations within the Council on the State of Criminal Proceedings Concerning the Amended Code and immediately amend the legislation to require the audio and video recording of the entire process of interrogations of all suspects, regardless of whether they are arrested or detained, as well as all witnesses, in all cases.
2. Restrict the detention of suspects who are expressing their intention to not make statements in an interrogation room and establish the right of suspects to have defense counsel present at interrogations, in order to substantially guarantee the right not be compelled to testify against oneself.
The JFBA is determined to make every necessary effort to achieve the above.
We resolve as above.
June 14, 2024
Japan Federation of Bar Associations