Statement Calling for Expediting Legal Reform Such as Expanding the Scope of the Audio and Video Recording of Interrogations to Their Entire Process and All Cases on the Occasion of the Release of a Report by the Council on Criminal Procedures Concerning the Amended Code of Criminal Procedure
Today, the Council on Criminal Procedures Concerning the Amended Code of Criminal Procedure (the "Council") held its 21st meeting and compiled a report regarding the results of its discussions. The Council was established by the Ministry of Justice in 2022 to consider reviewing the 2016 amendment of the Code of Criminal Procedure (the "amended Code") which introduced measures such as the audio and video recording of interrogations by investigative authorities.
The amended Code was enacted following the release of a report by the Special Subcommittee on the Criminal Justice System for a New Era of the Legislative Council of the Ministry of Justice (the "Special Subcommittee"), which was established in 2011 for "reviewing the current state of police investigations and trials which relies too much on interrogations and confession statements." The case of a former senior official of the Ministry of Health and Welfare who was indicted for allegedly committing postal fraud but ultimately acquitted and evidence tampering by the public prosecutor who was in charge of the case served as an important motive for the amendment; a supplementary resolution adopted by the Diet states that the amendment was based on "a thorough debate conducted upon regret over the repeated miscarriages of justice." The audio and video recording of interrogations helps ensure that they are carried out properly. Furthermore, the necessity of recording interrogations is not limited to those involving suspects in some cases who are arrested or detained. However, during the discussions by the Special Subcommittee, investigative authorities opposed requiring the audio and video recording of the entire process of interrogations in all cases by claiming that the audio and video recording of interrogations could hinder investigations and cause other adverse effects. In response, multiple experts serving as members of the Special Subcommittee requested that: (1) the path towards making interrogations transparent in all cases in the future be set to some extent; (2) the state of the implementation of the audio and video recording of interrogations be evaluated at a certain point after its implementation; and (3) a detailed review procedure based on the results of such evaluation be included. Following the request, a reference that a review of the amended Code be conducted after its implementation was included, and the content of the Special Subcommittee’s report was unanimously approved by its members.
The amended Code, after undergoing the above developments, was implemented in stages until 2019, with the state of the implementation of the amendment being shared with the Council. Among the cases shared with the Council, no actual examples of the adverse effects of the audio and video recording of interrogations, which investigative authorities had claimed could arise, were reported. This demonstrates that no adverse effects that outweigh the usefulness of the audio and video recording of interrogations will arise, at least under the current legislation which provides exceptions to the obligation to carry out such recording.
In the meantime, miscarriages of justice have been repeatedly happening even after the implementation of the amended Code, including well known examples of the Pressance case and the Ohkawara Kakohki case. Illegal interrogations have been happening even when the audio and video recording have been made, with a series of interrogations that force false testimony to frame an innocent person by hinting at cruelty and compulsory investigation and those that violate the moral rights of suspects exercising their right to silence being revealed. In addition, "hostage justice," where the accused who maintain their innocence are put under long-term detention, has not been rectified; cases of trial proceedings without the guarantee of the accused’s right to disclosure of evidence and those that unreasonably spend years on the disclosure of evidence have been revealed. This situation must be regarded as that investigative authorities have not built on their "regret over miscarriages of justice" or reviewed the current state of investigations and trials which relies too much on interrogations.
The Council’s report states that, based on a perception that the purpose of the amended Code has not been fully realized, it "strongly expects the government to promote necessary initiatives, for example concrete deliberations at a new forum on system reform and operational improvement, including expanding the scope of the audio and video recording of interrogations, as well as the introduction of a new system for the criminal procedure." The Japan Federation of Bar Associations calls on the new meeting body to be set up following the Council’s report to promote system design to rectify the state of investigations and trials being contingent upon interrogations and prevent miscarriages of justice. Such new system should include: (1) expansion of the audio and video recording of interrogations to the entire process of interrogations in all cases; (2) restriction on interrogation of suspects who are expressing their intention to not make statements; (3) guarantee of the right to have counsel present at interrogations; (4) elimination of "hostage justice;" and (5) guarantee of the right to timely disclosure of evidence, among others. Especially, with regard to the audio and video recording of interrogations, while the usefulness of objectively recording confessions has become clear, it has been demonstrated that no adverse effects that outweigh such usefulness will arise. Therefore, the legislation should be amended to require objective recording of interrogations of in principle all suspects and witnesses, subject to the establishment and appropriate application of the grounds for exception based on the intent of the interrogated, which should be similar to such grounds under the current legislation and also applicable to witnesses including victims. Since as many as 14 years have passed since the establishment of the above-mentioned Special Subcommittee, including the three years that the Council took to compile its report, it must be said that the speed of legal reform to prevent miscarriages of justice is too slow. It is essential to promptly realize such legal reform so as not to lose the public trust in the criminal justice system any further.
July 24, 2025
Reiko Fuchigami
President of the Japan Federation of Bar Associations