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    <h1><span class="ch_n">Chapter 1</span><br>Investigation</h1>
    <p class="f-prg">The objective of this book is to explain the content of the code of criminal procedure based on the process of criminal procedure.</p>
    <p>This book cites articles of the code of criminal procedure and other laws related to criminal procedure like other law books. When an article is cited, please check the content of the article when necessary in order to supplement the explanation in this book.</p>
    <h2 id="sigil_toc_id_1">I. Criminal Cases</h2>
    <h3 id="sigil_toc_id_2">1. Criminal Cases</h3>
    <h4 id="sigil_toc_id_3">What is a Criminal Case?</h4>
    <p class="f-prg">In all societies a variety of problems between the human beings regularly occur. Some of these may arise out of disputes about who owns a given piece of property. Some, in fact many, may present themselves as the result of disagreements among members of a family. Others may break out due to disputes between private persons and local or even national governments. In legal terms we categorize these various types of disputes into one of two categories. The former, which involve disputes between private individuals, are referred to as civil cases while the latter, involving disputes between private individuals and government, are called administrative cases.</p>
    <p>We also have a third category, which we use to describe incidents in which an individual (or individuals) has committed a particularly egregious act such as theft or murder. These are criminal cases. The acts which constitute a “crime” are specifically defined by law. Or perhaps it is more accurate to say that only those acts which the law prohibits and prescribes punishment for can be called crimes. We call this the principle of “<span class="w_latin">nullum crimen, nulla poena sine lege</span>” (“there is no crime or punishment without a law”; <span class="w_jp key-wd">zaikei hōtei shugi</span>).</p>
    <p>The fundamental law which defines crimes in Japan is the Penal Code (<span class="w_jp key-wd">Keihō</span>; hereinafter “PC”) which was enacted in 1907 and was subject to an extensive amendment in 1995 in which many expressions in the old PC were modernized. The PC criminalizes a number of acts which society has long considered to be anti-social or to violate commonly held moral standards. These include such acts as murder, theft, battery (causing bodily injury), intimidation, rape, robbery, fraud, kidnapping, arson and insurrection.</p>
    <p>Not all acts which we would consider “criminal” are covered by the PC however. The provisions of the PC are supplemented by other, more specific, laws that deal with acts such as negligent driving causing death or injury (the Act on Punishment of Acts Inflicting Injury or Death on Others by Driving a Vehicle), acts related to stimulants (the Stimulants Control Act) and those related to organized crime (the Act on Punishment of Organized Crimes and Control of Crime Proceeds). Another specific law, the Anti-Stalking Act, provides punishment for (as the name suggests) stalking.</p>
    <p>In the area of administrative law as well certain laws and provisions impose criminal penalties for violations of the law in order to achieve administrative enforcement. Examples of such are to be found in the penal provisions of laws like the Public Offices Election Act and the Road Traffic Act.</p>
    <h4 id="sigil_toc_id_4">Substantive Laws and Procedural Laws</h4>
    <p class="f-prg">A penal law not only defines the acts which constitute a crime but also stipulates the type and the length of punishment which may be imposed. We thus further divide the law into two categories to reflect this distinction. Those laws which stipulate the substance of legal relations, rights and obligations are called substantive laws (<span class="w_jp key-wd">jittai hō</span>)<span class="key-wd">.</span> In addition to the PC, important examples of these include the Civil Code (<span class="w_jp">Minpō</span>) and Commercial Code (<span class="w_jp">Shōhō</span>). On the other hand, those laws which stipulate the procedures which must be followed for crimes to be punished, or in civil litigation, for lawsuits to be brought are called procedural laws (<span class="w_jp key-wd">tetsuzuki hō</span>). In Japanese criminal law the most fundamental procedural law is the Code of Criminal Procedure (<span class="w_jp key-wd">Keiji Soshō Hō</span>; hereinafter “CCP”) which you will study here. The current version of this Code was enacted in 1948. In addition to the CCP there are a number of specific laws which also affect criminal procedure, such as the Juvenile Act*.<!--必ずというわけではありませんが、米英語では、「.*」 の順（注がピリオドの後ろ）になる方が一般的です。イギリス英語は逆です。--> An additional important source of law in this field are the Rules of Criminal Procedure (<span class="w_jp key-wd">Keiji Soshō Kisoku</span>; hereinafter “RCP”), which supplement the provisions of the CCP with more detailed rules.</p>
    <div class="endnotes">
      <p>* Other specific laws include the Court Act, the Public Prosecutor’s Office Act, the Attorney Act and the Act on Committee for Inquest of Prosecution. These have further been recently supplemented by other laws dealing with specific areas, including the Act on Interception of Communications for Criminal Investigation, the Act on the Expediting of Trials, the Act on Criminal Trials with the Participation of Saiban’in, the Basic Act on Crime Victims and the Act on Measures Incidental to Criminal Proceedings for Protecting the Rights and Interests of Crime Victims.</p>
    </div>
    <h3 id="sigil_toc_id_5">2. Overview of Investigation</h3>
    <h4 id="sigil_toc_id_6">Outline</h4>
    <p class="f-prg">The process of criminal justice begins with an investigation. When a crime has occurred, or is suspected to have occurred, the investigative authorities will seek to identify and, if necessary, detain suspects and preserve any relevant evidence. This is provided for in article 189 II of the CCP which states that “a judicial police official shall, when they deem that an offense has been committed, investigate the offender and evidence thereof.”</p>
    <p>In simple terms, the investigative process usually proceeds in the following way. When an investigative authority discovers a lead in relation to a crime they will interview witnesses and victims, search the crime scene and seize any evidence that remains in order to preserve it so that it can be used later to establish the facts of the case. If they are able to narrow their focus down to a suspect, they will interview that person and prepare a written statement of the results of that interview. They will then look for further evidence and, under certain circumstances, the suspect will be detained.</p>
    <p>Thus, a person who is suspected of committing a crime and becomes the target of an investigation is called a suspect (<span class="w_jp key-wd">higisha</span>). The CCP, as a rule, distinguishes suspects from the accused or defendants (<span class="w_jp key-wd">hikokunin</span>).</p>
    <p>Over the course of the investigation the degree of suspicion regarding a given suspect may gradually be strengthened. When all of the facts and the identity of the suspect are identified the investigative phase will end and the public prosecutor will proceed with a prosecution. If, on the other hand, despite a thorough investigation there is not enough evidence to proceed to trial, or owing to various other circumstances, the public prosecutor may render a disposition of non-prosecution, ending the case without a prosecution.</p>
    <p>In other words an investigation is an activity that is aimed at discovering the facts of a case. It begins when an investigative authority obtains a lead and ends with a prosecutor’s decision to pursue or drop a prosecution against a suspect.</p>
    <h4 id="sigil_toc_id_7">Related Laws</h4>
    <p class="f-prg">In addition to the CCP a number of other laws place limits on the powers of those conducting an investigation. These include the Police Act (hereinafter “PA”), which sets out the responsibilities of the police and requires political neutrality and fairness in their activities (art. 2). The Police Official Duties Execution Act (hereinafter “PDEA”) also requires that police measures be carried out only to the minimum extent necessary and strictly prohibits any abuse of this (art. 1 II). In addition there are the Criminal Investigation Regulations (<span class="w_jp key-wd">Hanzai Sōsa Kihan</span>; hereinafter “CIR”), promulgated by the National Public Safety Commission, which set out the ethical duties that police officers must observe when conducting a criminal investigation and details the methods and procedures to be followed.</p>
    <h3 id="sigil_toc_id_8">3. Investigative Authorities</h3>
    <h4 id="sigil_toc_id_9">Judicial Police Officials (<span class="w_jp">Shihōkeisatsu Shokuin</span>)</h4>
    <p class="f-prg">Who are the investigative authorities? The CCP sets out three different types: judicial police officials, public prosecutors and public prosecutor’s assistant officers (art. 189, 191). The first among these, judicial police officials, refers to officials who are legally entitled to conduct an investigation (art. 189, 190). These are further classified into general judicial police officials (<span class="w_jp key-wd">ippan shihōkeisatsu shokuin</span>) and special judicial police officials (<span class="w_jp key-wd">tokubetsu shihōkeisatsu shokuin</span>) (art. 1, 2 Act on Emergency Measures on Designation of Judicial Police Officials). The former refers to police officers belonging to national or prefectural police agencies who conduct ordinary police activities as authorized under the Police Act and are entitled, under this classification, to conduct investigations. The latter on the other hand refers to officials with various administrative agencies who are entitled under this classification to conduct investigations in specialized areas. These include such officials as police officials, members of the Coast Guard, labor standard inspectors and drug enforcement officers who investigate crimes which require their specialized professional knowledge (art. 31 Japan Coast Guard Act, art. 102 Labor Standards Act, art. 54 V Narcotics and Psychotropics Control Act).</p>
    <p>Judicial police officials are also classified by rank into judicial police officers (<span class="w_jp key-wd">shihōkeisatsuin</span>) and judicial police constables (<span class="w_jp key-wd">shihōjunsa</span>). They are first mentioned in article 39 III of the CCP. Under the CCP it is only judicial police officers and not judicial police constables who are entitled to conduct important acts in an investigation, such as requesting a warrant or referring a case to a public prosecutor (art. 199 II, 218 IV, 246). This is one of the distinctions that can be easily overlooked, underscoring the need to pay careful attention to the detailed provisions of the CCP.</p>
    <h4 id="sigil_toc_id_10">Police Officer</h4>
    <p class="f-prg">The quota for police officers nationwide was 261,652 in the 2016 fiscal year (April 1–<!--範囲を示すところはen dash-->March 31). These officers perform their duties under the supervision of the National Public Safety Commission (<span class="w_jp key-wd">Kokka Kōan Iinkai</span>) and the Prefectural Public Safety Commissions (<span class="w_jp key-wd">Todōfuken Kōan Iinkai</span>). The National Police Agency falls under the control of the former commission, while the police forces of each prefecture—such as the Metropolitan Police Department (<span class="w_jp key-wd">Keishichō</span>) in Tokyo—fall under the control of the latter. The quota for the National Police Agency only amounts to 0.8% of the total number of police officers.</p>
    <p>There is a hierarchical ranking system for police officers which runs, from top to bottom, as follows (art. 62 PA): Superintendent-General of the Metropolitan Police Department (<span class="w_jp key-wd">Keishisōkan</span>), superintendent supervisor of police (<span class="w_jp key-wd">Keishikan</span>), chief superintendent (<span class="w_jp key-wd">Keishichō</span>), senior superintendent of police (<span class="w_jp key-wd">Keishisei</span>), superintendent of police (<span class="w_jp key-wd">Keishi</span>), police inspector (<span class="w_jp key-wd">Keibu</span>), assistant police inspector (<span class="w_jp key-wd">Keibuho</span>), police sergeant (<span class="w_jp key-wd">Junsabuchō</span>), and constable (<span class="w_jp key-wd">Junsa</span>). In addition there is the Commissioner-General of the National Police Agency (<span class="w_jp key-wd">Keisatsuchō Chōkan</span>), which is a job title rather than a rank.</p>
    <p>Police officers conduct operations under the guidance and supervision of their superior officers. Within the above ranking judicial police officers, who are entitled by the CCP to exercise authority in investigations, correspond to those with the rank of police sergeant or higher, while judicial police constables hold the rank of constable. Public prosecutors and public prosecutor’s assistant officers, who shall be discussed later (cf. Ch.1-I-6: “<a href="#sigil_toc_id_25">General Rule</a>”), are also entitled to conduct investigations.</p>
    <h3 id="sigil_toc_id_11">4. The Number of Reported and Cleared Cases</h3>
    <h4 id="sigil_toc_id_12">Reported</h4>
    <p class="f-prg">According to the National Police Agency, 1,100,000 Penal Code offenses (including crimes set out in special criminal laws, such as the Regulations to Control Explosives) were handled by the police (“reported”) in 2015. Theft accounted for a whopping 73.5% of that total. While this may seem like a large number of cases it is a significant decrease from the peak of 2,850,000 cases reported in 2002. Most of this decrease, however, is attributable to the enactment and enforcement of the Act on Punishment of Acts Inflicting Injury of Death on Other(s) by Driving a Vehicle in May 2014. This Act removed negligent driving causing death or injury, which had previously been the second most reported type of criminal case, from the Penal Code and moved it to a special law. This change has resulted in the number of cases involving negligent driving causing death or injury being excluded from the Penal Code statistics. In reality, thefts used to constitute about 50% of reported cases before the change and negligent driving causing death or injury about 32%, meaning the numbers have actually not changed much.</p>
    <h4 id="sigil_toc_id_13">Cleared</h4>
    <p class="f-prg">In 2015 360,000 Penal Code offences involving 240,000 suspects were either referred by police to public prosecutors or subject to special dispositions for petty offences, roughly 32.5% of all the cases which were reported.</p>
    <h3 id="sigil_toc_id_14">5. Leads for Opening an Investigation</h3>
    <h4 id="sigil_toc_id_15">Leads</h4>
    <p class="f-prg">An investigation starts when an investigative authority has somehow come to know that a crime has occurred. In about 90% of cases involving Penal Code offences this comes about as the result of a report from a victim or someone connected to a victim. Additional sources of information are reports from security companies or from third parties. Only in less than 10% of cases are investigations started as the result of police activities, mainly in the form of interrogations and police questioning. The police may also become aware of a crime while in the process of investigating another crime.</p>
    <h4 id="sigil_toc_id_16">Police Questioning (<span class="w_jp">Shokumu Shitsumon</span>)</h4>
    <p class="f-prg">A police officer may stop a person for questioning when their conduct is found to be suspicious. This is called police questioning. “Any person who is suspected on reasonable grounds of having committed or being about to commit a crime or who is deemed to possess information on a crime which has already been committed or is about to be committed, judging reasonably on the basis of unusual behavior and/or other surrounding circumstances may be questioned by a policeman.” (art. 2 I PDEA).</p>
    <p>Police questioning is an administrative task of the police which is done for the purpose of “crime prevention” and which may be performed in the absence of any suspicion of a particular crime having been committed. In reality however police questioning often turns into an investigation under the CCP so the boundary between the two remains somewhat unclear.</p>
    <p>Recently the active use of police questioning has been emphasized and training in related techniques has been promoted, but since it constitutes an “encounter” between police and citizens more and more disputes regarding its legality have arisen.</p>
    <p>Further, as explained later, a debate has arisen regarding checking the personal belongings of persons being questioned. This has focused on a number of issues such as whether or not there exists an applicable provision for such actions, and even if article 2 I of the PDEA can be applied, under what conditions such checks are allowed.</p>
    <p>In relation to police questioning, there have also been discussions in court cases and academic debate with respect to the issue of under what provision inspections at traffic checkpoints are allowed, since they constitute an indiscriminate and simultaneous check that does not have any specific target. The Court has ruled that inspections at traffic checkpoints conducted for the purpose of prevention and arrests of traffic violations in an area with frequent violations are legal as long as they are conducted by methods and in a manner which asks for non-compulsory cooperation and do not unjustifiably restrict the freedom of the person being questioned, such as stopping a car for a short period and asking necessary questions (<span class="case_j" id="cj_id_s1980-09-22_ch1-1_01">Sup.Ct. Sept. 22, 1980 (34 Keishū 272)</span>).</p>
    <h4 id="sigil_toc_id_17">Police Inspection of Personal Belongings (<span class="w_jp">Shojihin Kensa</span>) Incident to Police Questioning</h4><!--incidentのiを大文字にしました-->
    <p class="f-prg">The Supreme Court has held that police inspection of personal belongings during police questioning shall in principle be conducted with the consent of the owner and be carried out within the bounds of such consent. Inspection without the owner’s consent should be deemed permissible only where it is not forced, does not reach the level of a search and is carried out within limits considered reasonable under the specific circumstances in light of the necessity and urgency of the inspection, balancing the individual’s legal interest that would be impaired by the inspection against the public’s interest in being protected (<span class="case_j" id="cj_id_s1978-06-20_ch1-1_01">Sup.Ct. June 20, 1978 (32 Keishū 670)</span>, <span class="case_j" id="cj_id_s1978-09-07_ch1-1_01">Sup.Ct. Sept. 7, 1978 (32 Keishū 1672)</span>).</p>
    <p>In practice, particularly in drug related cases the legality of searches are controversial and numerous challenges have been raised in court against the admissibility of stimulants found as a result of the inspection of belongings (ex.<!--e.g. も使われているようなので揃えたほうがよいかもしれません。--> <span class="case_j" id="cj_id_s2003-05-26_ch1-1_01">Sup.Ct. May 26, 2003 (57 Keishū 620)</span>).</p>
    <p>The CCP provides six types of proceedings by which an investigation may begin and defines the legal effects which each type has. Here we look at each of these in the order in which they appear in the CCP.</p>
    <h4 id="sigil_toc_id_18">Flagrante Delicto (Flagrant Offender)</h4>
    <p class="f-prg">When a person is found in the act of committing an offence anyone, not just police officers, may arrest the offender (art. 212–<!--～-->).<!--チルダでよいのか検討された方がよいかも--> While the Penal Code defines the arrest of a person as a crime itself (art. 220), the arrest of a flagrant offender (<span class="w_jp key-wd">genkō hannin</span>) caught in the act is deemed a justifiable act that does not constitute such a crime (art. 35). Further details of the arrest of flagrant offenders are explained later (cf. Ch.1-III-2: “<a href="#sigil_toc_id_49">Arrest of Flagrant Offenders</a>”).</p>
    <h4 id="sigil_toc_id_19">Postmortem Inspection of Persons who have Died Unnaturally</h4>
    <p class="f-prg">The second type is the postmortem inspection (<span class="w_jp key-wd">kenshi</span>) of persons who have died unnaturally (art. 229 I). The object of such an inspection is “the corpse of a person who died or is suspected to have died unnaturally” and it is not clear whether or not the death is caused by a crime. The inspection is directly carried out by a prosecutor with the purpose of determining whether the death was caused by a crime. In order to make that determination the prosecutor may enter the place where the corpse is located, observe it (externally) and examine the belongings of the deceased.</p>
    <p>Prosecutors, rather than police, conduct postmortem inspections in principle because life is the most important legal interest that needs protection and thus any crime which violates the life of a person is of the utmost seriousness. A warrant is not required to perform a postmortem inspection (Warrant requirements in general are discussed later. cf. <a href="#sigil_toc_id_86">Ch.1-V-2</a>). Prosecutors are, in fact, required to perform postmortem inspections as part of their duties, though they may delegate the task to a public prosecutor’s assistant officer or a judicial police officer (art. 229 II, art. 5 the Rule of Postmortem Inspection. These are referred to as representative postmortem inspections (<span class="w_jp key-wd">daikō kenshi</span>). When a police officer conducts the inspection it is required for them to do so with the assistance of a doctor and the results of the inspection must be promptly reported to the public prosecutor.</p>
    <h4 id="sigil_toc_id_20">Complaints (<span class="w_jp key-wd">Kokuso</span>) and Accusations (<span class="w_jp key-wd">Kokuhatsu</span>)</h4>
    <p class="f-prg">Investigations may start also with a complaint or an accusation (art. 230–<!--～-->, 239–<!--～-->). A complaint is the act of requesting punishment of an offender through the reporting of criminal facts. Under the CCP either the victim of a crime or their legal representative is entitled to file a complaint with the investigative authorities. An accusation is also an act of requesting punishment of an offender through the reporting of the criminal facts, but it is filed by a person other than the offender or a person entitled to file a complaint.</p>
    <p>The main difference between the two, with the exception of some minor points such as retraction are the person who expresses the intention to file the complaint. An accusation in practice is often used in so-called “victimless crimes” such as bribery with an accusation being the means by which such crimes are detected by investigative authorities. Public officers are obliged to file accusations regarding crimes which they discover in the course of executing their duties (art. 239 II).</p>
    <p>Ordinarily, a complaint/accusation is filed in writing directed to a public prosecutor or judicial police officer, but an oral complaint/accusation is also permitted (art. 241 I). When made orally the person receiving such complaint/accusation must prepare a written statement (art. 241 II). Once prosecuted, the complainant may not withdraw the complaint. When a complaint is withdrawn before the institution of prosecution, the complainant cannot file a complaint again (art. 237 I II. Under the former Code of Criminal Procedure, the complainant was able to withdraw a complaint until the judgment of the appellate court).</p>
    <p>Furthermore, when reporting facts on damages, submitting a claim without showing any wish to punish the offender may lead to the start of an investigation, but no legal effects of the complaint or accusation shall be given (art. 242, 246, 260, 261, etc.).<!--ピリ入れました--></p>
    <h4 id="sigil_toc_id_21">Offense not Prosecutable Without a Complaint (<span class="w_jp">Shinkokuzai</span>)</h4>
    <p class="f-prg">Offenses which require a complaint from victims as a necessary condition for prosecution are called offenses not prosecutable without a complaint. For those types of offenses, a complaint is not just the starting point of an investigation, but rather, any prosecution of such an offence without a complaint is ineffective. Accordingly, if a prosecution is instituted without a complaint, a court will render a judgment of dismissal of prosecution (art. 338④. cf. Ch.5-III “<a href="p-005.xhtml#sigil_toc_id_471">Dismissal</a>”).<!--閉じパーレン入れました--></p>
    <p>Offenses not prosecutable without a complaint stipulated in PC are divided into (1) cases which protect the interest and/or reputation of the victim (defamation (art. 230, 232), unlawful disclosure of confidential information (art. 134, 135) etc.), (2) cases where the damaged legal interest is generally small and punishment against the will of victims is not necessary (causing injury due to negligence (art. 209), damage to property (art. 261, 264), etc.), (3) cases where certain relationship exists between the suspect and the victim (art. 244 II, 251, 255). Under a special law, infringement of copyright is stipulated as an offense not prosecutable without a complaint (art. 123 Copyright Act).</p>
    <p>Furthermore, sexual crimes such as indecency through compulsion (art. 176) and rape (art. 177) were offenses not prosecutable without a complaint, but they were excluded therefrom by the 2017 reform (Forcible sexual intercourse was stipulated in place of rape.).</p>
    <p>As a rule, the time limit for the filing of complaint of an offense not prosecutable without a complaint is 6<!--10より小さい数字なので、sixとする?--> months from the day on which a person entitled to file a complaint learns who the offender is (art. 235 I).</p>
    <p>For crimes involving multiple accomplices the law provides that a complaint against one (or several) is effective against any remaining accomplices as well (art. 238 I).</p>
    <p>Issues that need to be further considered with respect to offenses not prosecutable without a complaint include the period for filing a complaint, the scope of the effect of a complaint, whether or not an investigation may be begun before the filing of a complaint and the scope of persons entitled to file a complaint.</p>
    <h4 id="sigil_toc_id_22">Request (<span class="w_jp">Seikyū</span>)</h4>
    <p class="f-prg">The fifth type is a request (art. 92 PC). A request is the manifestation of an intention by a certain agency to seek punishment by the investigative authorities through the reporting of criminal facts, such as a request by a foreign government in a case of damages to a foreign national flag. Another example would be a request by the Labor Relations Commission in relation to a violation of the obligation of prior notification of a strike in a public undertaking (art. 42 Labor Relations Adjustment Act). The nature of a request is the same as that of a complaint in an offence prosecutable upon a complaint, so the corresponding articles in the CCP on complaint apply (art. 237 III, 238 II).</p>
    <h4 id="sigil_toc_id_23">Surrender (<span class="w_jp">Jishu</span>)</h4>
    <p class="f-prg">Investigations may also start with the surrender of the offender of the crime. A surrender refers to the act of offenders who come forward to present the facts of their own criminal act to the investigative authorities and leave their disposition to the authorities. In order for a surrender to be accepted, it needs to be done before the investigation authority comes to know the facts of the crime or who the offender is. In cases where the investigative authority knows who but not where the offender is, the offender stepping forward does not constitute a surrender. To be a surrender, moreover, the facts of the crime need to be declared without waiting for an interview with the investigative authority. It does not amount to a surrender if an offender admits to the facts of one crime when asked if they have committed any other crimes while being interviewed in relation to a different crime.</p>
    <p>Procedurally, this is only the beginning of an investigation. Surrender is a ground for the reduction of punishment under the Penal Code (art. 42 I, 80, 93, 228-3). Regarding the mode of surrender, the provisions in the CCP respecting complaint are applied correspondingly (art. 245).</p>
    <h3 id="sigil_toc_id_24">6. Investigation by Public Prosecutors</h3>
    <h4 id="sigil_toc_id_25">General Rule (Secondary Investigation Authority)</h4>
    <p class="f-prg">Public prosecutors may, if they deem it necessary, investigate an offense (art. 191 I, art. 6 I Public Prosecutor’s Office Act (hereinafter “PPOA”)). According to the CCP, judicial police officials are the primary investigative authorities while investigations by public prosecutors are secondary. Therefore, in the majority of cases, an investigation is first conducted by the police. After conducting their investigation, the police refer the case to public prosecutors along with documents and articles of evidence (art. 246). The public prosecutor thereafter continues the investigation supplemental to the police investigation. Only cases concerning certain types of offences which have been “designated by public prosecutor” <span class="w_latin">ex ante</span> as those for which referral is unnecessary do not need to be referred to a public prosecutor (<span class="w_jp key-wd">bizaishobun</span>, art. 246 proviso).</p>
    <p>With regards to the cases which were not referred, a report from the police to the prosecutors are made monthly. Although practice varies from area to area, generally speaking, the cases designated by public prosecutors are mostly cases with small damages such as cases of theft, fraud, embezzlement, cases related to stolen goods, and cases of gambling. However, cases in which a suspect was arrested by ordinary arrest or arrest under exigent circumstances, and cases with a complaint, accusation or surrender are excluded.</p>
    <p>After an investigation is concluded the public prosecutor decides whether or not to move forward with a prosecution, a discretion that only public prosecutors possess (art. 247, 248).</p>
    <p>Due to the concentration of cases, which must all be submitted to the public prosecutors, in larger cities the public prosecutors’ offices have been organized into different divisions for the sake of administrative efficiency. These include Criminal Division (which conducts investigations of general criminal cases including violent crimes, Traffic Division (which conducts investigations of traffic related offences), Public Security Division (which conducts investigations of public security related cases) and Trial Division (which handles trials after prosecution has been initiated).</p>
    <p>Public prosecutor’s assistant officers are also an investigative authority, but since they support and follow the orders of public prosecutors in conducting their investigations they are not independent (art. 191 II; art. 27 PPOA). Therefore, the relationship between public prosecutors and public prosecutor’s assistant officers is different from the relationship between public prosecutors and police officers, which will be explained later. Public prosecutors are given authority to interrogate suspects and witnesses, to enforce arrest warrants and search and seizure warrants that have been issued in advance, to request the issuance of arrest warrants (ordinary arrest), to request detention, and to examine witnesses as a part of an investigation (art. 198 I, 223 I, 199 I, 218 I). The authority of public prosecutor’s assistant officers on the other hand is limited to interrogating suspects and witnesses and enforcing arrest warrants and search and seizure warrants that have been issued in advance (art. 199 II, 204 I, 205 I, 226. Although they have the authority to request the issuance of search and seizure warrants (art. 218 IV), in reality, public prosecutor’s assistant officers rarely request the issuance of such warrants.).</p>
    <h4 id="sigil_toc_id_26">Direct Investigation by Public Prosecutors</h4>
    <p class="f-prg">There are cases where it is difficult for the police to conduct a primary investigation due to their lack of legal knowledge. Some types of crimes by their nature require a detailed understanding of other areas of law, such as civil or commercial law which public prosecutors, being lawyers themselves, have better knowledge of. Examples of such crimes include tax evasion, accounting frauds which violate commercial laws or cartel activities which violate the Antimonopoly Act. In such cases it is more appropriate for the investigation to begin with public prosecutors rather than the police.</p>
    <p>Since the scope of duties of the police is very wide, they tend to place emphasis on exposing crimes against personal interests. It is thus natural that they only start an investigation after they are notified of financial damages or a violation of the life, body or liberty of an individual. It may also be more appropriate for public prosecutors, due to their independence, to conduct investigations into political cases such as those involving serious allegations of corruption. Complaints and accusations related to perjury or abuse of authority are also often brought to public prosecutors. In such cases the public prosecutor directly conducts the investigation as an exception to the normal process.</p>
    <p>The Tokyo, Osaka and Nagoya District Public Prosecutors Offices have Special Investigation Departments (<span class="w_jp key-wd">Tokusōbu</span>) which conduct investigations without the help of police. These departments directly accept complaints/accusations (<span class="w_jp key-wd">chokkoku jiken</span>). They are also known for handling investigations of major bribery cases and cases involving tax evasion or the violation of commercial laws. In the ten District Public Prosecutors Offices (in Yokohama, Saitama, Chiba, Kyoto, Kobe, Hiroshima, Fukuoka, Sendai, Sapporo and Takamatsu), Special Criminal Divisions were established in May of 1996 with the purpose of strengthening investigations directly conducted by the public prosecutors office. Despite this only about one percent of the total number of suspects in cases involving Penal Code offences are independently investigated by the public prosecutors.</p>
    <h4 id="sigil_toc_id_27">Relationship between Public Prosecutors and Police Officers</h4>
    <p class="f-prg">Public prosecutors and judicial police officials are both independent investigative authorities, but they must cooperate with each other in conducting an investigation (art. 192). At the same time, however, public prosecutors may give necessary general instructions to judicial police officials within their jurisdiction regarding their investigations (art. 193 I). The main role of public prosecutors is conducting a legally flawless prosecution, so these instructions are given in the form of general standards for conducting a fair investigation. Further, when conducting an investigation themselves, public prosecutors may, within their jurisdiction, give general directions to judicial police officials that are necessary for them to cooperate in the investigation (art. 193 II). In other words, they set down the policies and plans of investigation for a particular case and seek the cooperation of police in accordance with such policies and plans.</p>
    <p>When public prosecutors conduct an investigation as a primary investigative authority, they may give specific directions to judicial police officials and have them assist in the investigation (art. 193 III). These directions are given when the public prosecutor is actually conducting an independent investigation by the public prosecutors office. They are directed towards a particular judicial police official. The public prosecutors are not limited by their geographical jurisdiction in giving this type of direction. Judicial police official must obey the general instructions, general orders and individual orders they receive from public prosecutors (art. 193 IV). If they disobey, they may be disciplinarily punished or dismissed (art. 194). The relationship between these two authorities has, however, been the subject of recent legal and practical debate.</p>
    <h2 id="sigil_toc_id_28">II. Method and Conduct of Investigation</h2>
    <h3 id="sigil_toc_id_29">1. Non-compulsory and Compulsory Investigations (<span class="w_jp">Nin’i Sōsa</span> / <span class="w_jp">Kyōsei Sōsa</span>)</h3>
    <h4 id="sigil_toc_id_30">Course of Investigation</h4>
    <p class="f-prg">When an investigative authority gets a lead they begin a full scale investigation in order to establish the true facts of the case. This may, for example, begin with the result of a postmortem inspection which determines that an unnatural death was the result of a criminal act. In that case the investigative authority will both request the issuance of a warrant permitting necessary measures for expert examination and request a doctor who can perform an expert examination of the body (art. 225 I, 223 I, 168 I). When the warrant is issued, the doctor then conducts an autopsy. In addition to this, the investigative authority will, authorized either by an inspection or a search and seizure warrant issued by a judge, take photographs of the crime scene where the body was found and measure its position (art. 218 I). This will then be preserved as evidence and recorded in a record of inspection. Any evidence the investigative authority finds during their search of the crime scene which is related to the crime will be seized. This is the general sequence in which the investigative authority collects evidence.</p>
    <h4 id="sigil_toc_id_31">Characteristics of an Investigation</h4>
    <p class="f-prg">Based upon a consideration of the objectives and functions of an investigation, there are various lines of thinking as to how to perceive its character (an issue that was mentioned earlier). Such differences in thinking in turn lead to differences in the operation of proceedings in individual cases. In particular, in criminal cases, post-prosecution (trial) proceedings are assumed to come after the investigative proceedings have completed. This creates a problem with respect to how to characterize such proceedings in relation to the trial.</p>
    <h4 id="sigil_toc_id_32">Article 197 I of the CCP</h4>
    <p class="f-prg">Flexibility, promptness and efficiency are strongly required in investigations, because it is important to find criminals and collect evidence quickly. Thus, article 197 I provides “with regard to investigation, such examination as is necessary to achieve its objective may be conducted.” This allows an investigative authority to employ whatever appropriate investigative measures they deem necessary even when there is no specific provision authorizing them.</p>
    <p>However, this clause is limited in its second part which states that “compulsory measures (<span class="w_jp key-wd">kyōsei shobun</span>) shall not be applied unless special provisions have been established in this Code (art. 197 I proviso)” (<span class="w_jp key-wd">kyōsei shobun hōtei shugi</span>). The word used here is “this Code,” so the provision needs to be prescribed in the Code of Criminal Procedure (cf. art. 222-2). The main part relates to non-compulsory investigations while the second part relates to compulsory investigations. The order of the two also demonstrates that investigations are mainly conducted voluntarily (≒<!--英語圏では≈（U+2248）を使います。あるいは文章で書いた方がよいかもしれないです。-->without using compulsory measures) while compulsory investigations are exceptions. The term “voluntary investigation (<span class="w_jp key-wd">nin’i shobun</span>)” is, it should be noted, not actually used in the CCP, though it does appear in articles 99 and 100 of the CIR.</p>
    <p>In order to obtain authority to perform a “compulsory measure” in a case a warrant issued by a judge after examining whether adequate cause exists and whether the disposition is necessary is required (this is called the Warrant Requirement, cf. <a href="#sigil_toc_id_86">Ch.1-V-2</a>).</p>
    <h4 id="sigil_toc_id_33">Distinction</h4>
    <p class="f-prg">The distinction between compulsory investigations conducted by means of a “compulsory measure” and non-compulsory investigations is quite important. A non-compulsory investigation can be performed simply at the discretion of the investigative authority, which is not the case with a compulsory investigation. The criteria used to define the distinction between the two include such factors as whether or not coercion is used against an individual and whether it suppresses the will of an individual. Due to the complexity and diversification of investigations it is often difficult to clearly draw a line between the two.</p>
    <p>The Supreme Court has held that the use of physical force in the course of voluntary investigations may be considered permissible, depending “upon a determination of the urgency and necessity for employing such force and of the allowable limit under the specific circumstances of each case.” This is only so long as it does not amount to a coercive measure, namely “measures that are not permitted in the absence of special rules and provisions justifying such action, such as suppressing the will of the individual and placing restrictions on his person, residence, or property for the purpose of carrying out the coercive investigation” (<span class="case_j" id="cj_id_s1976-03-16_ch1-2_01">Sup.Ct. March 16, 1976 (30 Keishū 187)</span>).</p>
    <p>The Supreme Court has also dealt with cases concerning the use of X-rays to observe the contents of unopened packages that have been put into a delivery agent’s transportation process without the consent of either the consignor or consignee. Though such acts do not directly suppress the will of an individual the Court nonetheless held that they “seriously infringe the privacy of the consignors or consignees in relation to the content of the parcels and can be regarded as compulsory measures that have the nature of an inspection in criminal procedure” (<span class="case_j" id="cj_id_s2009-09-28_ch1-2_01">Sup.Ct. Sept. 28, 2009 (63 Keishū 868)</span>).</p>
    <p>Further, recently, the courts have been considering the question of whether attaching a GPS (Global Positioning System) device to the automobile or motorcycle of the target of an investigation without obtaining a warrant for the purpose of keeping track of his location is permissible as a voluntary investigation. The Supreme Court held that “GPS investigation, which is an investigative method which invades someone’s personal territory against the reasonably presumed will of such person by secretly attaching a device that enables infringement of privacy to a belonging of a person, infringes an important legal interest that is protected by the Constitution, and as such, it amounts to compulsory measure which is not allowed without special provision under the Code of Criminal Procedure (cf. <span class="case_j" id="cj_id_s1976-03-16_ch1-2_02">Sup.Ct. March 16, 1976 (30 Keishū 187)</span><!--前出箇所は2段落前と比較的近いので、aboveでも付して簡略化することも可能ですが、出典を付しておいてもとくに違和感はないのでこのままとする。-->, and generally, it is difficult to acknowledge that there is a special circumstance that allows it to be treated in the same manner as measures that do not require arrest warrant, such as arrest of flagrant offender; thus, it should be understood as a measure that cannot be exercised without a warrant” (<span class="case_j" id="cj_id_s2017-03-15_ch1-2_01">Sup.Ct. March 15, 2017 (71 Keishū 13)</span>).</p>
    <h4 id="sigil_toc_id_34">Compulsory Investigation</h4>
    <p class="f-prg">The CCP currently provides various types of compulsory measures that can be used by investigators.</p>
    <p>Any compulsory investigation which does not fit into one of these categories is illegal since there is no special legal basis for conducting such an investigation. Representative examples include measures against persons (arrest, detention, confinement for expert examination, examination of witnesses and so on) and measures against items (search, seizure, inspection, wiretapping, measures necessary for expert examination and so on). The Constitution requires that a warrant be issued in order to conduct a compulsory investigation, which serves to protect the rights of individuals to be secure in their person, to maintain their privacy and to protect their property rights (art. 33, 35).</p>
    <h4 id="sigil_toc_id_35">Non-compulsory Investigation</h4>
    <p class="f-prg">Non-compulsory investigations are typically conducted with the consent of the party subject to the investigation. As noted above in the discussion on the distinction between compulsory and non-compulsory investigations however, these may also be permissible in certain instances without such explicit consent (art. 197 I). This usually occurs in cases where the police requests that a person voluntarily come with them (art. 198 I; art. 102 CIR).</p>
    <p>Sting operations (<span class="w_jp key-wd">otori sōsa</span>) are another form of non-compulsory investigation. These occur when an investigative authority induces a suspect to commit a crime, while concealing their status or intention, with the aim of arresting the suspect in flagrante delicto upon finding the suspect actually committing the crime as induced. The Supreme Court has stated that sting operations are permissible as non-compulsory investigations at least in cases with no direct victim (such as drug related crimes) if it is difficult to reveal the crime through ordinary investigative methods and the person subject to the investigation is suspected to intend to commit the crime should an opportunity to do so present itself (<span class="case_j" id="cj_id_s2004-06-12_ch1-2_01">Sup.Ct. July 12, 2004 (58 Keishū 333)</span>).</p>
    <p>The courts have also held that another permissible form of non-compulsory investigation is the taking of photographs of individuals in places where they would normally expect to be observed by others (<span class="case_j" id="cj_id_s2008-04-15_ch1-2_01">Sup.Ct. April 15, 2008 (62 Keishū 1398)</span>, <span class="case_j" id="cj_id_s1969-12-24_ch1-2_01">Sup.Ct. Dec. 24, 1969 (23 Keishū 1625)</span>).</p>
    <h3 id="sigil_toc_id_36">2. Interrogation</h3>
    <h4 id="sigil_toc_id_37">Interrogation of Suspects</h4>
    <p class="f-prg">Regardless of whether or not they are taken into custody, an investigative authority may interrogate a suspect (art. 198 I. Peculiar problems exist for suspects in custody however (cf. Ch.1-VII-2: “<a href="#sigil_toc_id_140">Obligation to be Interrogated</a>”).).<!--ピリオドの位置、指示どおりに修正したが、あらためてご指示いただいたほうがよいかもしれない。--> Investigative authorities must inform suspects that they “do not need to make a statement against their will” before conducting an interrogation (art. 198 II; art. 169 I CIR). This is called notification of the right to refuse answering, which is discussed further as one of the rights of suspects below (cf. Ch.1-VII-2: “<a href="#sigil_toc_id_139">Right to Silence</a>”). According to CIR, this notification “must be done whenever the interrogation re-starts after an interruption which lasted for a considerable period, and when there has been a change of interrogating officer (art. 169 II).”</p>
    <p>When a suspect gives a statement, the investigative authority records it in a written statement (art. 198 III; art. 177 I CIR. <span class="w_jp key-wd">kyōjutsu chōsho</span>/ <!--スラッシュの前後はベタが原則ですが、イタリック体なのでスペースが入っているのでしょうか。--><span class="w_jp key-wd">kyōjutsu rokushusho</span>.<!--ここはもとスペースだけだったところ。ピリオドを入れてみたが適切かどうか。--> <a href="p-form05.xhtml">[FORMAT 5] “Written Statement”</a>). This record must be inspected by or read to the suspect to verify its content (art. 198 IV). The investigative authority must record any additions or alterations to its content which the suspect requests. When the suspect affirms that the content of the record is correct, the investigative authority may ask them to attach their signature or seal to it, but the suspect is free to choose whether or not to comply with this request and even if there is no error in the record may refuse (art. 198 V). An investigator’s record of oral statement with a suspect’s signature or seal is admissible as evidence under certain conditions (art. 322 I).</p>
    <h4 id="sigil_toc_id_38">Comparison with the Former CCP</h4>
    <p class="f-prg">With respect to the interrogation of suspects the former CCP (<span class="w_jp">Kyū Keiji Soshō Hō</span>; hereinafter “<span class="w_latin">ex</span>-CCP”) simply provided that investigative authorities “must be courteous and kind to the suspect and must give him a chance to make statements regarding facts which will benefit the suspect (art. 139, 135).” In contrast the current CCP requires suspects be notified of their right to refuse to answer. It also denies the admissibility as evidence at trial of “confessions under compulsion, torture, threat, after unduly prolonged detention or where there is doubt about its being voluntary (art. 319, 322 I proviso)”. Both the current and former versions of the CCP also contained provisions regarding the protection of the reputation of suspects during the course of an investigation (art. 253<span class="w_latin"> ex</span>-CCP; art. 196).</p>
    <h4 id="sigil_toc_id_39">Criminal Investigation Regulation (CIR)</h4>
    <p class="f-prg">The Criminal Investigation Regulation (CIR) contains general provisions which cover ethical duties during interrogation, points to note during an interrogation and rules on ensuring that oral statements are made voluntarily by the suspect (art. 166–<!--～-->). The CIR was amended in 2008 to add a provision which states that “except in cases where there are unavoidable reasons, conducting interrogation late at night or for a pro-longed time should be avoided (art. 168 III).” The CIR also contains provisions regarding precautions to be taken in the preparation of written statements and the elements to be contained therein (art. 177–<!--～-->179). It also requires the police to prepare a document recording the time, date, place and other circumstances of an interrogation after performing one (an interrogation status report) (art. 182-2). Similar obligations are imposed on public prosecutors who perform interrogations based upon a directive of the Ministry of Justice (art. 182-3). The 2008 amendment also introduced standards for the structures and facilities in which interrogations take place.</p>
    <h4 id="sigil_toc_id_40">Rules Regarding Supervision for Regulation of Interrogation of Suspects</h4>
    <p class="f-prg">After the introduction of the <span class="w_jp">Saiban’in</span> system (cf. <a href="p-003.xhtml#sigil_toc_id_360">Ch.3-III</a>) the National Police Agency drew up the “Guidelines for Regulation of Interrogation in Police Investigation” in 2008, in response to which the “Rules for Supervision for Regulation of Interrogation of Suspects” were established and an Interrogation Supervision System (<span class="w_jp key-wd">Torishirabe Kantoku Seido</span>) was introduced from April 2009. Under this system police officers who are not members of the investigative division monitor interrogations to determine whether or not there has been an improper interrogation.</p>
    <p>The following is the status of the implementation of this system by the prefectural police and the Imperial Guard in 2015 (research by the National Police Agency):</p>
    <p>—Number of interrogations of suspects: approx. 1,410,000 cases</p>
    <p>—Number of reports of complaints regarding interrogations of suspects: 411 cases</p>
    <p>—Number of inquiries (art. 10 of Rules): 519 cases</p>
    <p>—Number of acts supervised: 28 cases (accordance of convenience, offer of provision of convenience, promises of convenience: 11cases; interrogation of suspects in the middle of the night or for a pro-longed time without prior approval: 8 cases; bodily contacts: 4 cases)</p>
    <h4 id="sigil_toc_id_41">Video/Audio Recording of Interrogation (<span class="w_jp">Rokuon Rokuga</span>)</h4>
    <p class="f-prg">A 2016 amendment (which came into effect on June 3, 2019) introduced a requirement that the entire process of interrogating suspects in custody be recorded (video and audio) in cases that are subject either to the <span class="w_jp">saiban’in</span> system or independent investigations by the public prosecutors (art. 301-2 IV). This system was established after a trial of a similar system at the prosecutors office and the police with the purpose of ensuring that interrogations were conducted appropriately and for the purpose of proving the voluntariness of the statements made by suspects. Despite its limited scope, as it only applies in serious cases, the introduction of a requirement to record interrogations is a significant reform and its implementation in the near future is worthy of attention.</p>
    <h4 id="sigil_toc_id_42">Interrogation of Witnesses</h4>
    <p class="f-prg">Victims of crime and eyewitness of criminal acts are interrogated as witnesses in a process usually referred to as “interviews for questioning (<span class="w_jp key-wd">jijō chōshu</span>)” in the media (art. 223 I). Statements made by witnesses are recorded in written statements. While suspects are those who are suspected of committing a crime and thus are the subject of an investigation, sometimes the degree of suspicion surrounding an individual does not rise to this level. Such people are not suspects but rather are referred to as “<span class="key-wd">important witnesses</span> (<span class="w_jp key-wd">jūyō sankōnin</span>).” This distinction is important because the procedures for interrogating witnesses and suspects are quite different, for example with respect to the necessity of notification of the right to refuse answering (art. 198 II, 223 I). An investigator’s record of an oral statement by a witness is admissible under certain conditions if it is signed by the witness or has their seal attached to it but the law treats written statements based on interrogations by public prosecutors differently from other written statements (art. 223 II, 321 I). A number of problems concerning how the interrogation of witnesses are regulated are currently being debated in much the same way problems with the interrogation of suspects are.</p>
    <h2 id="sigil_toc_id_43">III. Arrest of Suspects</h2>
    <h3 id="sigil_toc_id_44">1. What Is an Arrest ?</h3>
    <h4 id="sigil_toc_id_45">Arrest</h4>
    <p class="f-prg">An arrest is the act of holding a suspect in custody continuously for a short period of time. Articles 33 and 34 of the Constitution draw a distinction between the words “<span class="w_jp">taiho</span>” and “<span class="w_jp">yokuryū</span>” but the CCP uses the term “<span class="w_jp key-wd">taiho</span>” which contains the meaning of the latter (<span class="w_jp">yokuryū</span>), which means holding a person in custody for a short period of time. The CCP also provides for the “detention (<span class="w_jp key-wd">kōryū</span>)” (cf. <a href="#sigil_toc_id_58">Ch.1-IV</a>) of a suspect as another means of holding a person in custody (art. 207 I・60). Detention is used when it is necessary to keep a suspect in custody after the period of custody following the arrest has expired. This is interpreted as being the “detention (<span class="w_jp key-wd">kōkin</span>)” referred to in article 34 of the Constitution.</p>
    <p>What, then, is the purpose of arresting a suspect? In reality, while it is true that a suspect held in custody is usually interrogated by investigative authorities, the question of whether or not the interrogation of suspects is itself the purpose of an arrest is not easily answered. This is because of the underlying problem of understanding the overall structure of an investigation. The general understanding of academics is that suspects are arrested for the purpose of preventing them from escaping or destroying evidence, and readers may reasonably suppose that suspects are arrested in most cases. In reality however only 35.5% of all suspects in cases handled by the public prosecutors office (excluding those concerning negligent driving resulting in injury and Road Traffic Law violations) were arrested in 2015, including those who were later released by police. This figure is actually a substantial increase over previous years when the figure was typically only about 10%, but still represents a minority of cases. In the rest, investigations proceed without the suspect being held in custody. For some crimes, it should be noted, the arrest rate is higher, particularly those involving extortion, violations of the Stimulants Control Act, forcible indecency and arson.</p>
    <h4 id="sigil_toc_id_46">Types of Arrests</h4>
    <p class="f-prg">The CCP provides 3 types of arrest: ordinary arrest (<span class="w_jp key-wd">tsūjō taiho</span>, arrest upon warrant issued in advance), arrest of a flagrant offender (<span class="w_jp key-wd">genkōhan taiho</span>), and arrest under exigent circumstances (<span class="w_jp key-wd">kinkyū taiho</span>). Article 33 of the Constitution states that “no person shall be apprehended except upon a warrant issued by a competent judicial official which specifies the offense with which the person is charged, unless he is apprehended for an offense being committed”, thus expressly providing for arrests <span class="w_latin">flagrante delicto</span> and arrest upon warrant. Arrests under exigent circumstances (art. 210), however, are not expressly provided for in the Constitution, leading to doubt among some academics that such arrests are constitutional.</p>
    <p>Of the three types, ordinary arrest is most frequently employed, arrest of flagrant offender the second, and arrest under exigent circumstances the least. In the past, almost half of all arrests consisted of flagrant offender arrests, but ordinary arrests have now overtaken them and represent about half the total.</p>
    <p>Despite the fact that arrests for offences not described in a warrant are often described with the term “arrest” in the media (usually as “<span class="w_jp key-wd">bekken taiho</span>”), and this terminology is also used by practitioners and academics, such instances do not fall under the types of arrest contained in the CCP.</p>
    <p>The CCP and RCP contain provisions which anticipate re-arrest (art. 199 III; art. 142 I⑧ RCP), but they do not classify it as an independent type of arrest. “Re-arrest” (<span class="w_jp key-wd">sai taiho</span>) in the media usually refers to an instance in which a suspect who has already been arrested for one crime has been arrested again for a different one, but the term as used in the CCP refers to a person being arrested a second time for the same offence.</p>
    <h3 id="sigil_toc_id_47">2. Requirements and Procedures of Arrests</h3>
    <h4 id="sigil_toc_id_48">Ordinary Arrest (Arrest upon Warrant)</h4>
    <p class="f-prg">An ordinary arrest is one made based upon an arrest warrant which has been issued in advance by a judge when there exists probable cause to believe that an offense has been committed by the suspect (art. 199 I). Arrest warrants may be requested by public prosecutors and judicial police officers but not by public prosecutor’s assistant officers or judicial police constables (art. 199 II). Originally when the CCP was enacted all judicial police officers were entitled to request the issuance of arrest warrants. Due to a problem of abusive requests, however, the CCP was reformed in 1953 to limit the ability to make requests to those who had been appointed by the National Public Safety Commission (<span class="w_jp key-wd">Kokka Kōan Iinkai</span>) or Prefectural Public Safety Commission (<span class="w_jp key-wd">Todōfuken Kōan Iinkai</span>) to the rank of police inspector or higher. In addition, when a judicial police officer with the rank of police inspector or higher “requests an ordinary arrest warrant, he must report to the Chief of Police or chief of police station and follow their direction (art. 119 II CIR).”</p>
    <p>Approximately 99% of all requests for warrants are made by judicial police officers. The number of requests has declined considerably since the 1960s and in recent years has hovered around 100,000 per year.</p>
    <p>A request for the issuance of an arrest warrant is made by submitting a written request which contains a description of, among other things, information related to the identity of the suspect, the offence, the reasons necessitating the issuance of the warrant, and the identity of the person making the request (art. 139, 142 RCP). Additionally, the request must be accompanied by “materials that establish the grounds for arrest and that there is a need for the arrest”, which refers to documents and items which establish the <span class="w_latin">prima facie</span> case necessary for the warrant to be issued (art. 143 RCP).</p>
    <p>Arrest warrants are issued by the judge of the competent district court or summary court of the area of the government agency to which the requester is affiliated (art. 199 I II, art. 299 I RCP). In juvenile cases, judges of the family court are entitled to issue such warrants (art. 299 II RCP). Several copies may be issued upon request (art. 146 RCP). The judge examines the materials submitted by the requester and “when the judge finds it to be necessary, he may hear statements from the person who requested the arrest warrant by requesting said person to appear, or may request said person to present documents or any other articles (art. 143-2 RCP).” An examination of the facts may also be conducted if necessary (art. 43 III).</p>
    <p>When a judge deems that there exists probable cause to believe that the suspect has committed the alleged offense, they will issue an arrest warrant (art. 199 II). Even when there is such probable cause, where the judge deems that there is clearly no necessity to arrest the suspect, no warrant shall be issued (art. 199 II proviso). This is also based upon the amendment of 1953. No necessity to arrest here means a situation where “for example, there is no concern that the suspect would flee or conceal evidence, etc., in light of the age and environment of the suspect, the gravity and mode of the offense, and various other circumstances (art. 143-3 RCP).” There is some dispute as to what the “etc.” refers to.</p>
    <p>As explained above, judges can accept or dismiss a request. In practice the number of dismissals of requests for warrants is extremely small. In 2015 only 62 requests were denied, representing only 0.06% of all requests submitted. In addition to these, despite some theoretical dispute about whether or not the practice is even permitted, in 1,373 cases the request itself was withdrawn.</p>
    <p>The CCP also provides that for offences punishable with a fine not exceeding 300,000 yen (20,000 yen for offenses other than those prescribed in the Penal Code), misdemeanor imprisonment without work or a petty fine, suspects may only be arrested in cases where they have no fixed dwelling or where they fail, without justifiable grounds, to make an appearance. A variety of arguments have been raised with respect to the question of whether the mere fact that a suspect failed to appear at a designated police station, etc. is enough by itself to justify an arrest or whether this must be accompanied by one of the other factors such as flight risk or the likelihood of concealing evidence in a petty case. With the exception of crimes under special laws only a few that are prescribed in the Penal Code, such as causing injury through negligence or insult, meet this condition (art. 209, 231).</p>
    <p>An arrest warrant must contain certain descriptive elements including the “name and residence of the suspect, the charged offense, and a gist of the alleged facts of the crime (art. 200; art. 144 RCP)” (see <a href="p-form01.xhtml#form01aw">[FORMAT 1] “Arrest Warrant (Ordinary Arrest)”)</a>.</p>
    <p>Ordinary arrest warrants contain the phrase “arrest permitted”, which leads to the view that the warrant is one which grants permission. Some academics however argue that its legal nature is that of an order rather than a granting of permission, which relates to the broader debate about the purpose of an arrest outlined earlier.</p>
    <p>It should also be noted that arrest warrants are limited in time, as a rule being valid for a period of 7 days, though a judge may specify a longer period where they deem it appropriate (art. 300 RCP). The warrant also allows not just the requester, but also public prosecutor’s assistant officers or judicial police officials to effect the arrest under the warrant (art. 199 I).</p>
    <p>Execution of the warrant may be done in either an “ordinary” or an “exceptional” manner. The former is an arrest made by showing the arrest warrant to the suspect while the latter is done in urgent situations where the executing officer does not have the warrant in their possession and makes it by giving the suspect a summary of the alleged facts of the crime and informing them that the warrant has been issued (art. 201 I, 201 II・73 III).</p>
    <h4 id="sigil_toc_id_49">Arrest of Flagrant Offenders</h4>
    <p class="f-prg">Arrest <span class="w_latin">flagrante delicto</span> is an arrest made without a warrant, and is permitted by article 33 of the Constitution. It is generally understood as an exception to the warrant requirement, but in reality, it accounts for about 40% of all arrests. A “flagrant offender” is a person who is “in the very act of committing or has just committed an offense (art. 212 I).”</p>
    <p>Enhancing<span class="w_latin"> flagrante delicto</span> described above, the CCP further defines a flagrant offender as a person who “is clearly deemed to have committed an offense a short time before” and falls under any of the following categories (art. 212 II): “1) a person being engaged in hot pursuit; 2) a person carrying with him goods obtained through an offense against property or a dangerous weapon or other things which are manifestly believed to have been used in the commission of the criminal act; 3) a person with visible traces of the offense on his body or clothing; and 4) a person who attempts to run away when questioned of their identity”. Since this type of flagrant offender is only “treated as” a flagrant offender they are called a quasi-flagrant offender.</p>
    <p>While it may seem that the conditions for the arrest of both a flagrant and a quasi-flagrant offender are clear in reality the conditions necessary to be deemed a quasi-flagrant offender and the factual questions of whether a person “has just committed an offense” or can be “clearly deemed to have committed an offense a short time before” are quite difficult to determine. In one case for example a police officer was informed that an act of intra-group violence had taken place and, at a time between 1 hour and 1 hour and forty minutes after the commission of the offence and at a place 4 kilometers away the officer arrested the suspect after he tried to run away from police questioning. At trial the legality of the arrest under such circumstances was contested and the Court found that the suspect satisfied the requirements to be deemed a quasi-flagrant offender and thus held that the arrest was legal (<span class="case_j" id="cj_id_s1996-01-29_ch1-3_01">Sup.Ct. Jan. 29, 1996 (50 Keishū 1)</span>).</p>
    <p>Another issue that arises with the arrest of flagrant offenders is necessity. No provisions directly impose a necessity requirement, so there is some debate as to whether it is a requirement like it is with ordinary arrests (cf. art. 199 II). Additionally, while a flagrant offender can be arrested without a warrant by “any person” nobody other than an investigative authority may forcibly enter the residence of another person to effect such an arrest (art. 213, 220 I①). When a private person apprehends a flagrant offender, they must “immediately” bring that person to a public prosecutor or a judicial police official (art. 214). Likewise when a judicial police constable has received a flagrant offender, they must promptly bring the offender to a judicial police officer (art. 215).</p>
    <p>As a general rule the arrest of flagrant offenders for offences punishable with a fine not more than 300,000 Yen, misdemeanor imprisonment without work or a petty fine is only allowed when the residence or name of the offender is unknown or when the offender poses a risk of flight (art. 217).</p>
    <p>When the suspect has been arrested as a flagrant offender, a document containing the date, time, and place of arrest, the reason for their being determined to be a flagrant offender, a summary of the facts, the circumstances of the arrest, and the date and time the suspect was brought to the public prosecutors office is prepared (art. 148 I② RCP).</p>
    <h4 id="sigil_toc_id_50">Arrest under Exigent Circumstances</h4>
    <p class="f-prg">Article 210 I of the CCP provides that a public prosecutor, a public prosecutor’s assistant officer or a judicial police official may arrest a suspect after notifying the suspect of the reasons therefor “when there are sufficient grounds to suspect the commission of an offense punishable by death, or life imprisonment with or without work or for a maximum period of three years or more, and in addition, because of urgency an arrest warrant from a judge cannot be obtained”. This is called an arrest under exigent circumstances (<span class="w_jp key-wd">kinkyū taiho</span>).</p>
    <p>In such cases “sufficient” rather than “probable” grounds to suspect the commission of the offence must exist, a higher standard than is applied to ordinary arrests.</p>
    <p>Unlike arrests of a flagrant offender, an arrest warrant is required to make an arrest under exigent circumstances. The procedures for requesting an arrest warrant must be taken “immediately” after the arrest, failing which the arrest will be deemed illegal though the question of what constitutes a request made “immediately” has often been disputed in court. If the arrest warrant is not issued, the suspect must be released immediately.</p>
    <p>Unlike ordinary arrest, there is no limitation as to the person within the investigative authority entitled to request the issuance of the warrant here. A judicial police constable may make such a request as well. The procedures for making requests are the same as in cases of ordinary arrest (art. 211). Circumstances which arose after the arrest (for example, the content of explanation by the arrested suspect) cannot be considered as grounds for the arrest.</p>
    <p>The form of the arrest warrant is basically the same as that for an ordinary arrest warrant, though the phrase “permit the arrest of the suspect” is changed to “confirm and permit the arrest of the suspect (art. 210 II).” When an arrest under exigent circumstances has been performed, a report of arrest under exigent circumstances is prepared, which explains the reason and necessity of the arrest and the circumstances at the time of arrest.</p>
    <p>Arrest under exigent circumstances is not clearly set forth in the Constitution (art. 33), so there was a heated discussion as to whether or not it complied with the Constitution after the complete amendment of the CCP after World War II. The Supreme Court upheld its constitutionality shortly thereafter, holding that “under the strict constraints (stipulated in article 210 of the CCP) the approval of the arrest of a suspect only in relation to specific serious crimes and only under urgent unavoidable circumstances, on condition that examination by a judge and issuance of an arrest warrant is sought immediately after arrest, is not in breach of the intent of stipulations in article 33 of the Constitution” (<span class="case_j" id="cj_id_s1955-12-14_ch1-3_01">Sup.Ct. Dec. 14, 1955 (9 Keishū 2760)</span>). Despite the fact that 90% of arrests are either ordinary arrests or arrests of flagrant offenders, arrests under exigent circumstances remain broadly used. While the numbers have decreased in recent years approximately 8000 warrants for arrests under exigent circumstances are issued annually. Dismissal of requests for such warrants are quite rare.</p>
    <h3 id="sigil_toc_id_51">3. Procedures After Arrest</h3>
    <p class="f-prg">When a public prosecutor’s assistant officer or a judicial police constable has arrested a suspect, the former must immediately bring the suspect to a public prosecutor and the latter to a judicial officer (art. 202, 211, 216).</p>
    <h4 id="sigil_toc_id_52">Sending of Suspect to Public Prosecutor</h4>
    <p class="f-prg">When a judicial police officer receives a suspect from a judicial police constable, or when they arrest a suspect themselves, they must “immediately inform the suspect of the essential facts of the suspected crime and the fact that the suspect may appoint a defense counsel and then, give the suspect an opportunity to present excuses” (art. 203 I). The suspect’s excuses are recorded in a document. In practice, upon hearing excuses from the suspect, it is common to inform them of their right to refuse answering. Such interviews are distinguished from the interrogation of suspects, meaning that notification of the right to refuse to answer, which is required upon the interrogation of suspects, is not expressly required by the CCP when merely listening to the suspect’s explanation (cf. art. 198 II).</p>
    <p>If the judicial police officer believes that it is not necessary to detain a suspect after hearing their explanation, the officer must release them immediately (art. 203 I). If on the other hand the officer believes that it is necessary to detain the suspect, the officer must carry out the procedure of sending the suspect together with the documents and articles of evidence to a public prosecutor within 48 hours from the time the suspect was placed under physical restraint. This is called the sending of the suspect to the public prosecutor (<span class="w_jp key-wd">migara sōchi</span>). About 6% of those arrested, mostly involving cases of flagrante delicto, are released at the police station while in all others the suspect is sent to the public prosecutor. Most suspects held in custody are also interrogated during this time period, but unlike merely listening to the suspect’s explanation, needless to say, it is necessary to inform the suspect in advance of their right to refuse answering (art. 198 II).</p>
    <h4 id="sigil_toc_id_53">Procedures of the Public Prosecutor after Receiving a Suspect</h4>
    <p class="f-prg">When a public prosecutor has received a suspect sent by a judicial police officer, they give the suspect an opportunity for explanation, prepare documents containing that explanation and immediately release the suspect if they believe that detention is not necessary (art. 205 I). If on the other hand they believe detention is necessary, they must make a request to a judge for further detention within 24 hours of receiving the suspect and 72 hours of the time the suspect was placed under physical restraint (art. 205 I・II). This dual time limitation (24/72) requires special attention. In practice the police conduct the process so that the suspect reaches the prosecutor within 48 hours, but sometimes transportation time may result in the suspect reaching the public prosecutor after more than 48 hours have elapsed. In such cases the time that has already passed has eaten into the 24 hours the public prosecutor is given due to the overall 72 hours time limit.</p>
    <p>If prosecution is instituted within that 72 hours time period, at which point the “suspect” becomes a “defendant”, the public prosecutor is not required to make a request for detention (art. 205 III). In practice, in such cases, the public prosecutor writes in the bill of prosecution a “<span class="w_jp key-wd">taihochū kyū reijō</span>”, which means “warrant of detention as defendant is required for the person presently arrested”, purporting to ask a judge to exercise their authority to detain the defendant. The judge then must “immediately notify the defendant of the facts charged, hear his statement” and decide whether or not to detain them (art. 280 II). This in turn leads to matters related to detention after prosecution has begun. When the public prosecutor does not make a request for detention or institute prosecution within the time limitation, the suspect must be immediately released (art. 205 IV).</p>
    <h4 id="sigil_toc_id_54">Arrest by Public Prosecutor</h4>
    <p class="f-prg">When a public prosecutor has arrested a suspect themselves or has received a suspect who had been arrested by a public prosecutor’s assistant or judicial police official who had been ordered by the prosecutor to make the arrest the same basic procedure is followed (art. 204). Arrests conducted in this manner are quite rare however and only make up 0.2% of all arrests. In such cases the public prosecutor must “immediately inform the suspect of the essential summary of the suspected crime and the fact that the suspect may appoint a defense counsel and then, give the suspect an opportunity for explanation”. If the public prosecutor then believes that detention is not necessary the suspect must be immediately released. If detention is believed to be necessary on the other hand, a request to detain the suspect must be made to a judge within 48 hours of the suspect being placed under physical restraint. There is, of course, no requirement to refer the suspect to a public prosecutor. If prosecution is initiated within those 48 hours, the public prosecutor is not required to request a detention because the court decides whether or not to detain the defendant (art. 60. Until the first trial date, the judge has authority to decide (art. 280)).</p>
    <h4 id="sigil_toc_id_55">Time Limitations</h4>
    <p class="f-prg">As can be seen above, time limitations are placed on the process following arrest, but the CCP also stipulates that “when unavoidable circumstances prevent a public prosecutor or a judicial police officer from complying with the time limitations…, a public prosecutor may, by showing <span class="w_latin">prima facie</span> evidence, request a judge to detain the suspect” (art. 206 I). From the words of the provision, it may seem that “unavoidable circumstances” could include such things as the complexity of the case or difficulty in collecting evidence. But it is actually limited to special circumstances where, due to problems in transport, it took a significant amount of time to take the suspect into custody or where a natural disaster such as a large earthquake has taken place. Cases where this provision is applied in reality are scarce.</p>
    <p>The procedures following arrest are as explained above, but in cases of arrest under exigent circumstances, there are several differences due to differences in the characteristics of each type of arrest, as already explained earlier. Examples of such differences include the necessity to ask for the issuance of an arrest warrant immediately after the arrest (art. 210 I) and in cases where a private person made the arrest of a flagrant offender, the need for such private person to immediately hand over the offender to a public prosecutor or judicial police official (art. 214).</p>
    <p>Furthermore people who have been arrested are usually detained in police detention facilities (<span class="w_jp key-wd">ryūchi shisetsu</span>; <span class="w_jp key-wd">ryūchijō</span>) (Act on Penal Detention Facilities and the Treatment of Inmates and Detainees (hearinafter “<span class="w_jp key-wd">Keiji Shūyō</span> Act”) art. 14 II①) .</p>
    <h4 id="sigil_toc_id_56">Acceptance into Detention</h4>
    <p class="f-prg">Public prosecutors request detention prior to prosecution in more than 90% of cases involving suspects arrested by or referred to the public prosecutor, meaning that fewer than 10% are released.</p>
    <p>A small number are juveniles referred to family court or juvenile classification homes or people against whom a trial or summary order has been requested.</p>
    <h4 id="sigil_toc_id_57">Legal Position of Arrestee</h4>
    <p class="f-prg">While warrants are issued by a judge arrested persons are not brought before a judge nor is a judge notified of the reasons for the arrest or even the fact that the arrest has occurred. After the arrest no procedure like a “detention hearing” (<span class="w_jp key-wd">kōryū shitsumon</span>), which will be discussed later, is held either. The law in fact does not even create any obligation to notify the suspect’s family that they have been arrested, another distinction between arrest and detention, nor are there any provisions governing requests for disclosure of the reason for arrest or for its rescission.</p>
    <p>Arrestees are furthermore not allowed to request relief from the decision of a judge to issue an arrest warrant. The Supreme Court has held that “it is appropriate to understand that the decision of a judge concerning arrest and execution of such a decision are not included in decisions which are subject to the request for relief prescribed in article 429 I of the Code of Criminal Procedure” (<span class="case_j" id="cj_id_s1982-08-27_ch1-3_01">Sup.Ct. Aug. 27, 1982 (36 Keishū 726)</span>). There is thus no independent way of obtaining a remedy for an illegal arrest.</p>
    <p>It is generally understood, and practice bears this out, that judges are not involved at any point in the process of holding a suspect in custody after the arrest warrant has been issued and before the prosecutor makes a request for detention. As we shall see in the next section, the protection of the rights of suspects is quite different when it comes to detention than it is with arrest.</p>
    <h2 id="sigil_toc_id_58">IV. Detention (<span class="w_jp">Kōryū</span>)</h2>
    <h3 id="sigil_toc_id_59">1. What Is Detention?</h3>
    <h4 id="sigil_toc_id_60">Detention</h4>
    <p class="f-prg">When it is necessary, and there are sufficient justifying reasons, to keep a suspect in custody following the period of detention which accompanies their arrest they may be “detained” upon the issuance of a detention warrant issued by a judge at the request of a prosecutor (art. 207 I・60–<!--～-->). It is necessary to distinguish here between detention of a suspect before prosecution has been instigated, which we are discussing here, and detention of a defendant after prosecution has begun.</p>
    <p>Detention before prosecution (detention of suspect) and detention after prosecution (detention of defendant) differ institutionally in the following points: 1) the subject (whether it is done by judges or as a rule, by court), 2) procedure (whether it is based on a request from the prosecutor or on order from the court), 3) length of time (10 days + <!--「+」の前後にアキ-->extension of 10 days (+ re-extension of 10 days) or monthly renewal after a 2 month period), 4) whether principle of no detention without arrest in advance applies (in the former case, an arrest must always come first), and 5) whether bail exists or not (bail is allowed only in the latter case). Further, in terms of operation, they differ in terms of 6) place (detention facility (police detention facility) or criminal facility (jail) (art. 207–<!--～-->, 60–<!--～-->)).</p>
    <p>Furthermore, if a prosecution is instituted with regards to suspected facts that are the same as suspected facts which were the basis of detention before prosecution, the detention before prosecution shifts to detention after prosecution without any procedures. Since strict examination is conducted as to whether or not a detention should be allowed at the stage of detention before prosecution, there is little need to conduct examination again as to whether or not the detention should be continued (Such thoughts are shown in art. 208 I, 280 II, 60 II).</p>
    <h3 id="sigil_toc_id_61">2. Requirements for Detention</h3>
    <h4 id="sigil_toc_id_62">Requirements</h4>
    <p class="f-prg">Article 207 I of the CCP provides that “The judge who has been requested to detain a suspect pursuant to the provision of the preceding three articles shall have the same authority as a court or a presiding judge.” Though somewhat difficult to understand this means that a “judge” may exercise any authority that a “court” or a “presiding judge” possesses in detaining a defendant as provided in Chapter 1 “General Provisions”. In other words the provisions for the detention of defendants are applied <span class="w_latin">mutatis mutandis</span> to the detention of suspects. The same rule of application is employed in the RCP as well (art. 302 I). Thus, the requirements for the detention of suspects should correspond to those provided in article 60 I. It was mentioned earlier that the detention of suspects is conducted based upon a detention warrant. This is because article 62 is applied <span class="w_latin">mutatis mutandis</span> pursuant to article 207 I. Thus, the word “defendant” in and after article 60 is replaced by the word “suspect.” Therefore, a suspect may be detained when there is probable cause to suspect that they have committed a crime and when a suspect “has no fixed residence”, when “there is probable cause to suspect that they may conceal or destroy evidence”, or when they “have fled or there is probable cause to suspect that they may flee.”</p>
    <p>Moreover, since it is provided that “when the ground or the necessity of detention no longer exists,” the judge would rescind the detention (art. 87 I), a judge may determine not only whether there is sufficient “ground” for the detention, but also whether there is a “necessity” (which includes the “appropriateness” as explained below) for it. Thus, “necessity” for detention is also included in the requirements. It is understood that the court may find there is no necessity for a detention when, for example, although a suspect has no fixed residence, there is clearly no probable cause to believe that they may flee because their identity is established and they have reliable contact information, or it is not appropriate to hold them in custody due to old age or illness.</p>
    <p>Detention of suspects arrested for minor offenses is only permitted under limited conditions based upon the same reasons (art. 60 III) as in cases of arrest for minor offenses.</p>
    <h4 id="sigil_toc_id_63">No Detention Without Arrest in Advance (<span class="w_jp">Taiho Zenchi Shugi</span>; <span class="w_jp">Taiho Senkō Shugi</span>)</h4>
    <p class="f-prg">Even if the requirements for detention explained above are fulfilled, since article 207 I refers to the “preceding three articles”, it presupposes that the suspect has already been arrested. The prosecutor may therefore not request the detention of a suspect who has not been arrested. This principle is referred to as no detention without arrest in advance. In contrast it may be noted that after the institution of prosecution it is possible to issue a detention warrant for a defendant who is not under arrest.</p>
    <p>There are differing views on the point, but “a suspect who has not been arrested” does not mean simply a suspect who is not in custody. It is understood generally that it is not possible to request detention for an alleged offense without first arresting the suspect for that offense even if they had already been arrested or detained for another offense, or to request detention of a suspect who has been arrested illegally. This view has been adopted in practice. It is understood generally that an arrest needs to be based upon the same reasons as those of detention, and the arrest needs to be legal.</p>
    <h3 id="sigil_toc_id_64">3. Decision for Detention and Request for Relief</h3>
    <h4 id="sigil_toc_id_65">Hearing by the Judge to Determine Whether or not<!--Not?--> to Detain a Suspect (<span class="w_jp">kōryū shitsumon</span>)</h4>
    <p class="f-prg">A request for detention by a public prosecutor is filed by submitting a written request for detention along with the necessary supporting materials, such as those necessary for “establishing the grounds for detention” (art. 147, 148 RCP). The elements which must be contained in a written request for detention are outlined in the RCP. A judge who receives a request for detention must first inform the suspect of the case and listen to what they have to say about it in a process referred to as a detention hearing by the judge to determine whether or not to detain a suspect (art. 61). At this point, the suspect is brought before a judge by the public prosecutor for the first time after being arrested (there is no such procedure for arrestees (cf. Ch.1-III-3: “<a href="#sigil_toc_id_57">Legal Position of Arrestee</a>”). This hearing is normally conducted in a specified Detention Hearing Room (<span class="w_jp key-wd">kōryū shitsumon shitsu</span>) within the courthouse. The content of the hearing is recorded in a written statement (art. 39, 42 RCP). There are no express provisions regarding measures to be taken by a judge at detention hearing, such as notification of the right to refuse answering or to appoint a defense counsel, so the actual manner in which this questioning is performed is not necessarily uniform.</p>
    <h4 id="sigil_toc_id_66">Allowing or Dismissing the Request for Detention</h4>
    <p class="f-prg">The judge, after performing the detention hearing, determines whether the request for detention is legitimate and whether sufficient grounds and necessity for the detention exist (art. 207 V, 207 I・64; art. 56 I, 149 RCP. <a href="p-form02.xhtml">[FORMAT 2] “Detention Warrant”</a>). If so the request is granted, if not it is dismissed. The decision is characterized as an “order” among the various types of decisions explained below. When a detention warrant is issued it is executed by either a public prosecutor’s assistant officer, a judicial police official or personnel at a penal facility (the chief of the facility or a staff member designated by the chief) under the supervision of the public prosecutor who requested the detention (art. 70, 71). Suspects can request the delivery of a certified copy of the detention warrant (art. 74 RCP). A suspect who has been arrested may continue to be held in custody even after the passage of the statutory time limit for detention accompanying arrest so long as the request for detention has been filed within the time limit and not been dismissed, otherwise the judge must immediately order their release (art. 204 IV, 205 IV, 207 V). As mentioned earlier detention is requested for more than 90% of cases in which the suspect has been arrested and sent to the public prosecutors office.</p>
    <h4 id="sigil_toc_id_67"><span class="w_jp">Junkōkoku</span> (Request for Relief)</h4>
    <p class="f-prg">When the public prosecutor, or the suspect and their counsel are dissatisfied with a decision concerning detention rendered by a judge of a summary court or of another court, they may file a request for revocation and alteration to the competent district court with the jurisdiction (when the decision has been rendered by a summary court judge), or the court to which such judge is assigned (when the decision has been rendered by a district/high court judge) (art. 429 I②).</p>
    <p>The court to which such a request has been filed must render a decision by a judicial panel composed of three judges (whereas the issuing of a warrant is performed by only one judge) (art. 429 III). Even after the court has rendered a decision to dismiss the request for detention, suspects remain in custody in practice until the court renders a judgment on prosecution requests to revoke or alter such dismissal and to stay the execution of a decision to dismiss. There is some dispute among academics as to the legitimacy of this practice. Another point of dispute revolves around the legitimacy of requests filed by suspects on the ground that there is no suspicion that they committed the offence alleged (art. 420 III, 429 II).</p>
    <h3 id="sigil_toc_id_68">4. Notification of Detention and Disclosure of the Grounds for Detention</h3>
    <h4 id="sigil_toc_id_69">Notification</h4>
    <p class="f-prg">When a suspect is detained, the judge must notify their counsel immediately (art. 79). When the suspect has no counsel, notification is to be given to the person who has been designated by the suspect from among their legal representative, guardian, spouse, lineal relatives or siblings (art. 79). Upon request by the suspect, notification may also be given to a person designated by the suspect, such as their employer or acquaintance when the suspect has no legal representative (art. 79 RCP). By providing a statutory obligation of notification of detained suspects’ whereabouts to the outside world, the law attempts to protect their rights and interests though it should be noted that no such procedure is provided with regards to arrestees (cf. Ch.1-III-3: “<a href="#sigil_toc_id_57">Legal Position of Arrestee</a>”).</p>
    <h4 id="sigil_toc_id_70">Request for Disclosure of the Grounds for Detention (<span class="w_jp">Kōryū Riyū Kaiji Seikyū</span>)</h4>
    <p class="f-prg">Suspects under detention may request the court to disclose the grounds for their detention (art. 82 I). This is a right based upon article 34 of the Constitution which provides that “no person shall be detained without adequate cause, and upon demand of any person, such cause must be immediately shown in open court in their presence and the presence of their counsel.” In addition to suspects themselves their counsel, legal representative, guardian, spouse, lineal relatives, siblings or other interested parties are entitled to file this request, though public prosecutors are not (art. 82 II).</p>
    <h4 id="sigil_toc_id_71">Requirement of Court Open to the Public</h4>
    <p class="f-prg">Article 34 of Constitution provides that the disclosure of the grounds for detention is to be conducted in open court, thus allowing for public observation of the process. Judges and court clerks are required to attend these hearings, but unlike with trial proceedings public prosecutors are not (art. 282 II). If the suspect and their counsel do not appear as a rule the proceeding is not conducted. When a request is filed, the judge fixes the date of disclosure, but as a rule, the grounds for detention must be disclosed within five days from the day on which such request was made (art. 82 I, 84 RCP). The public prosecutor, the suspect, their defense counsel, their authorized assistant in court and the requester must be notified in advance of the date on which the grounds for detention are to be disclosed (art. 82 III). The grounds for detention may also be disclosed at trial (art. 83 I).</p>
    <h4 id="sigil_toc_id_72">Disclosure Procedure</h4>
    <p class="f-prg">The judge must state the grounds for detention in court and the public prosecutor, suspect, counsel or other requesting persons may state their opinions (art. 84), each taking no more than 10 minutes to do so (art. 85-3 I RCP). This time limit was introduced in a 1950 amendment immediately after the enactment of the CCP. When a judge believes it appropriate they may order the submission of written rather than oral statements, based on a 1953 amendment (art. 84 II proviso). Whether the grounds for detention should be based on those which existed when the warrant was issued or at the time of disclosure is a matter of debate, as is the question of to what extent the grounds should be disclosed. The proceedings are recorded (art. 86 RCP).</p>
    <h4 id="sigil_toc_id_73">Actual Situation</h4>
    <p class="f-prg">The number of requests for disclosure of the grounds for detention varies slightly from year to year and is not necessarily constant. It is worth noting that the number of disclosure requests by defendants is quite smaller than the number made by suspects, which is a trend that extends beyond this single year.</p>
    <h3 id="sigil_toc_id_74">5. The Place and Time of Detention</h3>
    <h4 id="sigil_toc_id_75">The Place of Detention</h4>
    <p class="f-prg">The CCP and RCP outline what elements need to be contained in a detention warrant (art. 64; art. 70 RCP, art. 60 I.<!--ここはもとスペースだけだったところ。ピリオドを入れてみたが適切かどうか。--> <a href="p-form02.xhtml">[FORMAT 2] “Detention Warrant”</a>) and the place of detention (the name of the penal institution) is included among these.</p>
    <p>Penal institutions (<span class="w_jp key-wd">keiji shisetsu</span>) are establishments for committing people who have been sentenced to punishments that restrict bodily freedom (imprisonment with work, imprisonment without work and penal detention), defendants for criminal cases, suspects and prisoners who are sentenced to the death penalty (art. 3 Act on Penal Detention Facilities and the Treatment of Inmates and Detainees)). Among penal institutions, prisons (<span class="w_jp key-wd">keimusho</span>) are establishments which are mainly used to commit inmates sentenced to imprisonment and penal detention, and detention houses (<span class="w_jp key-wd">kōchisho</span>; <span class="w_jp key-wd">kōchishisho</span>) are used to commit defendants and suspects whose guilt has not yet been decided.</p>
    <p>The Act on Penal Detention Facilities and the Treatment of Inmates and Detainees (hereinafter “APDF”) assumes that penal institutions (detention houses and detention house branches) are the place of detention (art. 3③, 14 APDF), <!--，全角カンマが入っていました-->but at the same time allows a police station serving as a “detention facility (<span class="w_jp key-wd">ryūchi shisetsu</span>)” to be used as an alternative (art. 15 I APDF; “<span class="w_jp key-wd">daiyō keiji shisetsu</span>”). In practice suspects are generally detained in detention facilities, the appropriateness of which is open to some debate. On the one hand is the argument that keeping a suspect in police custody may lead to coerced confessions and poses problems to the right to defense. On the other is the practical argument that the use of a police detention facility is unavoidable in order to conduct a prompt and efficient investigation. It is also pointed out that since April 1980 the investigation division and custodial administration divisions of the police have been separated in an attempt to remove the risk of human rights abuses.</p>
    <p>As of April 2016 there were 1157 detention facilities throughout Japan (and 8 detention houses and 103 detention house branches). Approximately cumulative total of 3,480,000 arrestees and detainees (approximately 9,000 people per day) are detained in police detention facilities annually (as of 2015).</p>
    <h4 id="sigil_toc_id_76">Change of Place of Detention</h4>
    <p class="f-prg">A public prosecutor may, with the consent of a judge, transfer a detained suspect to another penal institution (art. 80 RCP). When the public prosecutor transfers the suspect to another penal institution, they must immediately notify the court and the defense counsel (or person designated by a suspect who has no defense counsel) of such transfer and of the name of the penal institution the suspect had been transferred to. A judge may also order a transfer <span class="w_latin">ex officio</span> (<span class="case_j" id="cj_id_s1995-04-12_ch1-4_01">Sup.Ct. April 12, 1995 (49 Keishū 609)</span>).</p>
    <h4 id="sigil_toc_id_77">Period of Detention</h4>
    <p class="f-prg">The period of detention of a suspect is ten days from the day a public prosecutor filed a request for detention (art. 208 I). While the period of an arrest is counted from “the time the suspect is put under physical restraint,” the period of a detention is counted from “the day the request for detention was filed.” Judges do not have the discretion to issue a warrant designating the period of detention to be shorter than 10 days. Although not expressly provided in article 55 proviso of the CCP, it is understood in practice that the first day of calculation for the period of detention is included in the ten days. The suspect must be released within those ten days if the prosecutor does not go ahead with a prosecution or obtain an extension of the period of detention (art. 208 I). Release does not in itself mean a rendering of a disposition to not prosecute.</p>
    <p>Most releases are conducted without the prosecutor rendering a disposition. Roughly 40,000 suspects are released after detention annually.</p>
    <h4 id="sigil_toc_id_78">Extension of the Period of Detention</h4>
    <p class="f-prg">A public prosecutor may request the extension of the period of detention within the ten days when unavoidable circumstances exist (art. 208 II. For example, the complexity and difficulty of the case, a delay or difficulty in collection of evidence or difficulty in deciding at the end of period whether to prosecute or not, though this does not include delay due to failure of the investigative authorities.). In such circumstances, the judge has discretion to extend the period as they deem necessary, which differentiates it from the initial request for detention which must be for a period of ten days. The public prosecutor may make several requests to extend the period of detention, so long as the total period of such extensions does not exceed ten days. It is therefore possible to detain a suspect in cases involving ordinary crime for a maximum of twenty days from the day of the initial request for detention.</p>
    <p>Extensions to the period of detention are permitted as an exception to the general rule. This exception was created under the current CCP with the purpose of avoiding excessive reliance on confessions and encouraging the collection of other evidence, which it was expected in some cases would take more time in comparison with a conventional investigation. The twenty day rule is limited to “ordinary crimes”, but further extensions for periods up to five days are permitted based on a 1953 amendment in cases of insurrection, treason, crimes related to foreign relations and disturbances (art. 208-2). It is possible to file a request for the rescission or alteration of a decision to extend a period of detention (art. 429 I②).</p>
    <h4 id="sigil_toc_id_79">Actual Situation</h4>
    <p class="f-prg">In 2015 1.2% of suspects were detained for five days or less, 36.1% for six to ten days, 62.6% for eleven to twenty days and 0.1% for more than twenty days. Thus almost all were detained for somewhere between six and twenty days. A little less than half of all detained suspects are ultimately prosecuted and about one third are released after detention.</p>
    <h3 id="sigil_toc_id_80">6. Rescission and Suspension of Detention</h3>
    <h4 id="sigil_toc_id_81">No Bail for Detained Suspects</h4>
    <p class="f-prg">It is important to note that under article 207 I bail is not available for detained suspects.</p>
    <h4 id="sigil_toc_id_82">Rescission of Detention</h4>
    <p class="f-prg">When suspects believe that the grounds or necessity for their detention no longer exists they may request its rescission (art. 87 I). Public prosecutors, defense counsel, legal representatives, guardians, spouses, lineal relatives and siblings of the suspect are also entitled to request rescission. This differs somewhat from those who are entitled to request disclosure of the grounds for detention in that public prosecutors are included while “interested parties” are not. This difference is due to the differing nature of each hearing. A request to disclose the grounds for detention is primarily intended to show in open court the grounds for an adverse disposition, while the purpose of a request to rescind detention is to directly obtain the release of a suspect who is unreasonably being held in custody.</p>
    <p>The detention is rescinded when a judge upholds the request. The rescission may be conducted <span class="w_latin">ex officio</span>.</p>
    <p>The judge may also rescind a detention if the period of confinement has been unduly long despite there being sufficient grounds and necessity for the detention (art. 91). This type of rescission is also conducted upon request or <span class="w_latin">ex officio</span>, but here the public prosecutor is not entitled to make a request.</p>
    <p>Requests for disclosure of the grounds of detention are not directly aimed at obtaining the release of a suspect. However, when, as a result of the disclosure, it has become clear that the requirement of detention had not been satisfied, the detention will be rescinded upon request or <span class="w_latin">ex officio</span>.</p>
    <p>Before rendering a decision the judge must hear the opinion of the public prosecutor (art. 92 II).</p>
    <p>In 2015 93 detentions were rescinded upon request and 63 <span class="w_latin">ex officio</span>.</p>
    <h4 id="sigil_toc_id_83">Suspension of Detention</h4>
    <p class="f-prg">The judge may, when they believe it appropriate, suspend detention, entrusting the suspect under detention to a relative, shelter organization or other person, or designating the residence of the suspect (art. 95). A suspension of detention temporarily releases the suspect from custody. It resembles release on bail, but differs in that there is no need to deposit bail, it is conducted only <span class="w_latin">ex officio</span>, and neither the suspect nor their counsel or spouse, are entitled to request it. Of course, the fact that it is permitted in a stage before prosecution is also a difference. Even when a request is made it only has the effect of “encouraging” the judge to suspend the execution of detention <span class="w_latin">ex officio</span>.</p>
    <p>In practice suspensions are issued in cases of hospitalization for the treatment of diseases or to attend the funeral of family members. The judge prescribes the period of suspension and any conditions such as limits on travel, though this is not expressly required by law. 105 suspects obtained suspensions in 2015 as did 346 defendants.</p>
    <p>The CCP provides five grounds for the rescission of a suspension of detention (art. 96 I). When any of these grounds is applicable, the judge may, upon the request of a public prosecutor or <span class="w_latin">ex officio</span>, rescind the suspension of the execution of detention. After rescission, the suspect is, of course, committed to a penal institution (or a police detention facilities) and is returned to custody (art. 98). Grounds for rescission and the procedures to be followed are the same as for release on bail of the defendant.</p>
    <h2 id="sigil_toc_id_84">V. Searches, Seizures and Inspections</h2>
    <h3 id="sigil_toc_id_85">1. What are Searches, Seizures and Inspections?</h3>
    <p>1) In order to discover evidence or suspects (art. 218 I), an investigative authority may search a person’s body, their personal items (such as bags) their residence or any other place (art. 222 I・102).</p>
    <p>2) When they find evidence while conducting a search, they can acquire possession of the relevant item coercively from its owner or custodian (art. 222 I・99).</p>
    <p>3) By using their five senses they may perceive the existence, content, condition and nature of places, physical items and people (art. 222 I・129).</p>
    <p>These three “compulsory measures” are called 1) search (<span class="w_jp key-wd">sōsaku</span>), 2) seizure (<span class="w_jp key-wd">sashiosae</span>), and 3) inspection (<span class="w_jp key-wd">kenshō</span>).</p>
    <p>The basic provisions regarding searches, seizures and inspections conducted by investigative authorities are articles 218 to 221 of the CCP, but many provisions regarding “seizure and search” and “inspection” by the court (Part 1 General Provision Chapter 9 article 99 and below) are applied <span class="w_latin">mutatis mutandis</span> (art. 222 I III).</p>
    <h3 id="sigil_toc_id_86">2. Based on a Warrant—The Warrant Requirement</h3>
    <h4 id="sigil_toc_id_87">Warrant Requirement (<span class="w_jp">Reijō Shugi</span>)</h4>
    <p class="f-prg">For an investigative authority to conduct these coercive measures, as a rule, a warrant issued by judge is required (art. 218). Article 35 of the Constitution provides that “the right of all persons to be secure in their homes, papers and effects against entries, search and seizures” is protected. Since searches, seizures and inspections are acts which coercively infringe on these rights in order to accomplish an investigative objective a judge must examine the “legitimate reasons” put forth justifying them before permitting their use by issuing a warrant.</p>
    <p>For example in one case mentioned earlier (cf. Ch.1-II-1: “<a href="#sigil_toc_id_32">article 197 (1) of the CCP</a>”), the Court decided that an investigative authority’s act of X-raying parcels that had been put into a delivery agent’s transportation system, and observing the projections of the items contained therein without obtaining consent from the consignors or consignees seriously infringed their privacy in relation to the content of the parcels. According to the Court, this act had the nature of an inspection and, having been conducted without a warrant, was illegal (<span class="case_j" id="cj_id_s2009-09-28_ch1-5_01">Sup.Ct. Sept. 28, 2009 (63 Keishū 868)</span>).</p>
    <p>The provisions on “seizure and search” and “inspection” in the general provision discussed above apply <span class="w_latin">mutatis mutandis</span> to the requirements and procedures for warrants (art. 222 I III).</p>
    <p>Search upon consent is permitted without a search warrant, but according to article 108 of CIR searches of houses require a warrant even if consent is obtained. A warrant is not required in most cases where consent is given due to the fact that the subject is deemed to have voluntarily waived their own right. Some other types of inspections may be conducted without a warrant, such as an inspection of a vehicle involved in a case of negligent driving resulting in injury or death. Such non-compulsory inspection is called “on-the-spot investigation (<span class="w_jp key-wd">jikkyō kenbun</span>)”.</p>
    <p>Also in cases where a suspect has left a possession behind or an item was voluntarily produced by its owner no warrant is necessary since no coercive power was used in obtaining the item (this is called retention (<span class="w_jp key-wd">ryōchi</span>)). After an item is retained a retention statement is prepared. The investigative authority may refuse requests for the restitution of a retained item, giving it a similar effect to seizure.</p>
    <p>“Seizure” (<span class="w_jp key-wd">Ōshu</span>) as a measure for investigation, as provided in Chapter 2 of the CCP (e.g. art. 222 I) involves “seizure” (<span class="w_jp key-wd">sashiosae</span>) and “retention”. Article 35 I of the Constitution, on the other hand, requires a warrant for “seizures” (“<span class="w_jp key-wd">ōshu</span>”), which refers to those which accompany the use of coercion in obtaining possession of an item. As a result retention is not considered to fall under this provision.</p>
    <p>When a warrant is necessary for an investigation, the investigative authority (except judicial police constables who are not entitled to do so) requests the issuance of one from a judge (art. 218 IV). The request must be submitted along with the materials which <span class="w_latin">prima facie</span> establish the suspicion that the suspect has committed the alleged offence (art. 155, art. 156 I RCP).</p>
    <h4 id="sigil_toc_id_88">The Warrant (<span class="w_jp">Reijō</span>)</h4>
    <p class="f-prg">The warrant contains the name of the suspect, the name of the offense alleged (<span class="w_jp key-wd">zaimei</span>), the items to be seized, the place, body or items to be searched and inspected, and its date of expiry (art. 219 I; art. 157, 157-2 RCP). It is understood that a judge may also examine the necessity and appropriateness of a seizure (<span class="case_j" id="cj_id_s1969-03-18_ch1-5_01">Sup.Ct. March 18, 1969, (23 Keishū 153)</span>). Unlike arrest warrants it is not necessary to include a summary of the alleged facts of the crime (<span class="w_jp key-wd">higi jijitsu no yōshi</span>). This is because searches, seizures and inspections may be conducted against persons other than suspects and is meant to protect the reputation of suspects and maintain the confidentiality of the investigation. For warrants to intercept communications, however, a summary of the alleged facts of the crime is included (cf. <a href="#sigil_toc_id_102">Ch.1-VI-1</a>).</p>
    <p>The provisions detailing these required elements in a warrant were introduced to comply with article 35 I of the Constitution’s requirement that warrants “describe the place to be searched and things to be seized….” The issue of how specific this description needs to be has been a constant source of dispute however. With respect to a warrant to seize items, for example, it is sufficient to write “and any other items related to this case” after listing the particular items sought. The Supreme Court has held that when those words follow a list of specific items and it is clear that they are both related to the offence indicated in the warrant and are items similar to those specifically listed this meets the requirement for a particular description of the items to be seized (<span class="case_j" id="cj_id_s1958-07-29_ch1-5_01">Sup.Ct. July 29, 1958 (12 Keishū 2776)</span>). It has been argued that this suggests that in addition to simply naming the offence a summary of the alleged facts of the crime should also be included to satisfy this condition.</p>
    <p>Since the particular description of a place and items are required in a warrant, several different places may not be searched, nor seizures be conducted on different occasions, with one warrant even if they are in the same location. Searches also may not be conducted on a warrant issued for a separate offense (art. 35 II Const.). When conducting a search and seizure for the same case at the same place and on the same occasion, however, it is permissible to carry it out based upon one search and seizure warrant. In practice many searches and seizures are conducted upon combined warrants like that. An example of a warrant for search and seizure can be seen on <a href="p-form03.xhtml">[FORMAT 3] “Search and Seizure Warrant”</a>.</p>
    <h3 id="sigil_toc_id_89">3. Inspection of a Person (<span class="w_jp">Shintai Kensa</span>)</h3>
    <h4 id="sigil_toc_id_90">What is an Inspection of a Person?</h4>
    <p class="f-prg">A special warrant is required to conduct an inspection of a person rather than a normal inspection warrant (art. 218 I VI). The judge may prescribe the conditions they deem appropriate for such an examination to be conducted under. As sorts of compulsory measures which involve the body of a person, body search of a person and inspection of a person conducted as a necessary measure of expert examination also exist. There is however a great deal of debate over the limits to be placed on these, whether or not they can be conducted coercively and what types of warrant are necessary to conduct such things as urine and blood tests. The examination of certain things, like blood or gastric juices for example, by their nature require an invasion of the body. A special warrant (warrant permitting necessary measures for expert examination) is therefore required in order for the experts (in those cases doctors) to conduct such examinations (art. 225・168). If on the other hand the person consents, such examinations can be conducted without a warrant.</p>
    <h4 id="sigil_toc_id_91">Compulsory Collection of Urine Samples (<span class="w_jp">Kyōsei Sainyō</span>)</h4>
    <p class="f-prg">The collection of urine samples without consent poses several problems. Even if a warrant is issued, what happens if the person in question refuses such collection? Is it permissible to collect it by force? And if it is permissible, what kind of warrant does it require? This has been discussed in the context of whether it is permissible to use a catheter to forcibly collect a urine sample from a person suspected of using illegal stimulants without their consent. Previously the majority of investigative authorities had obtained two warrants, one for inspection of a person as a sort of inspection and one permitting inspection of a person as a necessary measure for expert examination, before conducting such collection (art. 222 I・139, 225 I・168). This was based on the understanding that the investigator could force the inspection of a person as a sort of inspection based upon the former warrant, and the person who has been entrusted with expert examination could be present at the scene to conduct the necessary urine collection based upon the latter.</p>
    <p>Later however the Supreme Court ruled that compulsory urine collection was permissible as an unavoidable measure. It stated that collecting it through compulsion from a suspect as evidence of a crime was an act which had the nature of a search or seizure and therefore investigative authorities had to obtain a warrant for search or seizure in order to conduct it (art. 222 I・102). Unlike an ordinary search or seizure however compulsory urine collection also had a nature similar to an inspection of a person conducted as a sort of inspection in that it is likely to violate the types of human rights similar to those violated by bodily inspections of those subject to it. Therefore the warrant “must include a statement of condition that compulsory urine collection shall be conducted by a doctor through a medically appropriate method” (<span class="case_j" id="cj_id_s1980-10-23_ch1-5_01">Sup.Ct. Oct. 23, 1980 (34 Keishū 300)</span>. cf. art. 218 VI <span class="w_latin">mutatis mutandis</span>). In a later case it was further held that a warrant for a compulsory urine sample allowed the police to take a suspect to the nearest place suitable for obtaining a sample when it was impossible for them to have the suspect voluntarily go (<span class="case_j" id="cj_id_s1994-09-16_ch1-5_01">Sup.Ct. Sept. 16, 1994 (48 Keishū 420)</span>).</p>
    <p>The current practice therefore is to use warrants for search and seizure. The warrant states that the “body of the suspect” is to be searched and the item to be seized is a “urine sample of the suspect.” These are generally called a compulsory urine sampling warrant (<span class="w_jp key-wd">kyōsei sainyō reijō</span>). An appendix is attached which states the conditions for search and seizure: “1. Compulsory urine collection shall be conducted by a doctor through a medically appropriate method. 2. When there is a need for compulsory urine sample collection, it is possible to take the suspect to a particular place for taking the urine sample or to the nearest place that is suitable for taking a urine sample.”</p>
    <h3 id="sigil_toc_id_92">4. Execution of Warrant</h3>
    <h4 id="sigil_toc_id_93">Procedures Accompanying the Conducting of Searches, Seizures and Inspections</h4>
    <p class="f-prg">When a warrant is issued, it is executed by the investigative authority. When executing it the warrant is presented to the person subject to it, who is usually the owner of the place to be searched (art. 222 I･110). This person then checks the contents of it, including its date of expiry and the place to be searched. The CCP allows measures necessary to conduct the search and seizure, such as opening locks, to be taken (art. 222 I・111). Other actions such as developing film that has been seized may also be classified as necessary and allowed under this rule.</p>
    <p>The Supreme Court has upheld the police practice of opening a hotel room door with a master key before presenting the search and seizure warrant in a case involving drugs (<span class="case_j" id="cj_id_s2002-10-04_ch1-5_01">Sup.Ct. Oct. 4, 2002 (56 Keishū 507)</span>). High Courts have upheld the police practice of pretending to be a courier delivering a package in order to trick the suspect into opening the door.</p>
    <p>Displaying or printing information recorded on a disc is also considered to be a permissible necessary measure.</p>
    <p>An observer must be present when the warrant is executed. The executing officer must have the head of the office, when searching a public office, or the head of the household when searching a residence attend the scene during the search or seizure (art. 222 I・114). Conversely the officer may also prohibit any person from entering the place being searched during execution (art. 222 I・112).</p>
    <h4 id="sigil_toc_id_94">Object of Search and Seizure</h4>
    <p class="f-prg">There is no dispute as to the permissibility of searching appliances based upon a search warrant for a particular place where such equipment is located, but the same cannot be said of searching the belongings or the body of persons present at the scene of the search. In one case the Supreme Court held that the search of the travelling bag carried by a roommate during a search based on a warrant which specified a room in a condominium to be searched was legitimate (<span class="case_j" id="cj_id_s1994-09-08_ch1-5_01">Sup.Ct. Sept. 8, 1994 (48 Keishū 263)</span>).</p>
    <p>The items which are specifically described in the warrant may be seized (art. 222 I・99 I). These are generally limited to items that are related to the alleged facts of the crime under investigation. When documents are listed as the items to be seized, only those documents which relate to the alleged facts of the crime may be seized.</p>
    <p>Thus, before seizing an item, the investigative authority needs to check whether it is related to the alleged facts of the crime. The Supreme Court has however held that in cases where it is likely that a pile of floppy disks contained information relevant to the case but there is a risk that they would be deleted if checked at the site of the search it is permissible to seize them without first checking their content to confirm that they relate to the case (<span class="case_j" id="cj_id_s1998-05-01_ch1-5_01">Sup.Ct. May 1, 1998 (52 Keishū 275)</span>). In another case it was held that the scope of a warrant may extend to items which have been brought into the place being searched after the warrant was presented. That case involved a parcel containing stimulants being delivered to a residence while it was in the middle of being searched (<span class="case_j" id="cj_id_s2007-02-08_ch1-5_01">Sup.Ct. Feb. 8, 2007 (61 Keishū 1)</span>).</p>
    <h4 id="sigil_toc_id_95">Points to be Noted in Executing a Warrant</h4>
    <p class="f-prg">A number of other points are worth noting with regard to the execution of a warrant. The first is that when executing a search warrant on the body of a female, a female adult must attend the execution unless urgent circumstances exist which prevent this (art. 222 I・115). In the case of inspection of females a physician or female adult must also always be present during the search (art. 222 I・131 II). A second point is that there are restrictions on the hours in which a warrant may be executed. Generally searches and seizures in residences are not permitted before sunrise or after sunset unless the warrant expressly permits its execution at night (art. 222 III・116). Third is that postal items in the possession of a public agency of communications like the post office fall under limits meant to protect the privacy of communications (art. 21 II Const.). It is only permissible to seize them when they are sent to or from a suspect or when they are reasonably suspected of being related to the case (art. 222 I・100). Fourth is that people holding certain offices or positions such as public officials, members of the Diet, physicians or lawyers may refuse the seizure of items containing confidential information under certain conditions (art. 222 I・103–<!--～-->105). Finally, when a warrant is executed, its content is put in writing in a document called a “record of seizure proceedings” (<span class="w_jp key-wd">sashiosae chōsho</span>).</p>
    <h4 id="sigil_toc_id_96">End of Execution</h4>
    <p class="f-prg">When articles have been seized, the investigative authority produces an inventory of the seized items and hands it to their owner or possessor (art. 222 I・120; art. 96 RCP). When a search has come up empty and nothing has been seized the executing officer is obliged, upon request of the person subject to the search, to issue a certificate which certifies that the search has ended in such result (art. 222 I・119).</p>
    <h3 id="sigil_toc_id_97">5. Searches, Seizures and Inspections Conducted Without a Warrant</h3>
    <h4 id="sigil_toc_id_98">Search, Seizure and Inspection Incident to Arrest</h4>
    <p class="f-prg">As explained above, a warrant is necessary in order to conduct a search, seizure or an inspection. However, article 35 of the Constitution provides an exception to that general rule for those conducted in situations provided in article 33, that is, searches incident to legal arrest. Corresponding to these constitutional provisions, the CCP has also provided that when “it is necessary while arresting” a suspect, the executing officers may enter into the residence of suspects to search for them without a warrant (art. 220 I①・III). The CCP also provides that the executing officer may, “on the spot of the arrest,” conduct a search, seizure or inspection without a warrant (art. 220 I②・III). This provision is applied <span class="w_latin">mutatis mutandis</span> to cases of executing a detention warrant or a subpoena (art. 220 IV).</p>
    <p>These warrantless searches are similar to arrests of flagrant offenders in that they are both exceptions to warrant requirements that limit the actions of investigative authorities. A number of reasons are cited justifying warrantless searches, seizures and inspections incident to arrest. One is the exigent necessity of disarming a suspect and removing their means of escape in order to conduct an arrest as safely and smoothly as possible. Another is the high probability that evidence related to the offence may exist at the site of an arrest and the existence of an urgent necessity to collect and preserve the same. Resolving definitional problems surrounding the meaning of phrases such as “while arresting” and “site of the arrest” depend in large part on a consideration of these factors.</p>
    <p>These searches are conducted incident to the arrest of any suspect, and not just flagrant offenders, so the object of the seizure must be related to the alleged facts of the crime from which the arrest is being made (see “<a href="#sigil_toc_id_100">Object of Seizures Incident to Arrest</a>” below). Any weapons or tools of escape which might be used to impede an arrest are also viewed as being legitimate subjects of a seizure. In terms of timing, the Supreme Court has clarified that the phrase “while arresting” should be interpreted as requiring the search occur in close temporal proximity to the arrest, but was broad enough to include searches that occurred shortly before the beginning of the act of arrest itself (<span class="case_j" id="cj_id_s1961-06-07_ch1-5_01">Sup.Ct. June 7, 1961 (15 Keishū 915)</span>).</p>
    <p>Interpretation of the “site of the arrest” is a bit more difficult and opinion is divided. On the one hand it might be argued that the intent of the CCP in allowing a warrantless search during an arrest was to provide an exception due to the urgent need to conserve evidence. On the other, it might be interpreted as providing a type of reasonable compulsory search that is equivalent to a search based upon a warrant. This difference is significant since under the former view the extent of any search would be limited to the body of the arrestee and any places immediately under their control since the basis of the exception is simply to prevent the arrestee from destroying evidence. The latter view however would allow for a broader search that includes places where there is a high possibility that evidence related to the alleged offence exists regardless of whether or not it is within reach of the arrestee. The Supreme Court has held that when it is not feasible to perform a search and seizure immediately at the site of an arrest, bringing the suspect to the nearest suitable place to perform it and doing so as quickly as possible can be considered a permissible search and seizure conducted at the “site of the arrest” (<span class="case_j" id="cj_id_s1996-01-29_ch1-5_01">Sup.Ct. Jan. 29, 1996 (50 Keishū 1)</span>).</p>
    <p>The Code also provides that when suspects are arrested or detained, their fingerprints or footprints may be taken, their height or weight may be measured, and their photographs may be taken without a warrant, as long as they are not stripped naked (art. 218 III). The practice of taking the fingerprints and photographs of suspects after they are brought to the police station on arrest is based upon this provision.</p>
    <h4 id="sigil_toc_id_99">Emergency Search and Seizure</h4>
    <p class="f-prg">While the police may affect an arrest under exigent circumstances without a warrant and later request one, the same system is not used with respect to searches or seizures under exigent circumstances. Even in such instances no search or seizure without a warrant other than those provided in article 220 of the CCP may be conducted. Requests for legislation creating such exceptions were raised in the early 1950s but ultimately were not acted upon.</p>
    <h4 id="sigil_toc_id_100">Object of Seizures Incident to Arrest</h4>
    <p class="f-prg">Only items which constitute evidence related to the facts of an alleged offence may be seized at the site of an arrest without a warrant. If, for example, a suspect is arrested for murder and is discovered to be in possession of illegal stimulants at the time of the arrest it is not possible to seize those stimulants without a warrant because they are unrelated to the murder. In order to seize the stimulants the investigative authority must either arrest the person as a flagrant offender for possession of the stimulants and seize them incident to that arrest, or seize them after obtaining a warrant from a judge authorizing them to do so. They may also of course ask the suspect to voluntarily submit the stimulants and retain them if they comply with that request.</p>
    <h2 id="sigil_toc_id_101">VI. Other Methods of Investigation</h2>
    <h3 id="sigil_toc_id_102">1. Interception of Wire Communications (Wiretapping) (<span class="w_jp">Tsūshin Bōju</span>) upon Warrant</h3>
    <h4 id="sigil_toc_id_103">Interception of Telephone Conversations</h4>
    <p class="f-prg">As mentioned above, an investigative authority may conduct an inspection based upon a warrant issued by a judge (art. 218 I). In one case involving the investigation of drug trafficking which was directed over the phone, an inspection warrant permitting the interception and recording of conversations over a particular telephone that was used solely for trafficking (a “wiretap”) was issued. Since the interception of phone conversations infringes upon the constitutionally protected right to privacy of communications and may also impinge upon other important personal rights of individuals in the same manner that entry, search or seizure does, they can only be conducted based upon a warrant issued by a judge (art. 21 II, 35, 13 Const.). The CCP however did not contain at that time any provisions which directly set down the requirements or procedures for the interception and recording of phone conversations and initially there was some debate as to whether the practice was permissible or not.</p>
    <p>Several lower court decisions held them to be legal with a warrant, a position which the Supreme Court ultimately agreed with (<span class="case_j" id="cj_id_s1999-12-16_ch1-6_01">Sup.Ct. Dec. 16, 1999 (53 Keishū 1327)</span>). It held that wiretapping is permissible when there is sufficient reason to believe a serious crime has been committed by a suspect, it is probable that the relevant phone would be used for calls relating to the facts of that crime, there is reason to believe that it would be extremely difficult to obtain necessary evidence of the crime through other methods and when such means are accepted as unavoidable after weighing the interest that is infringed by the wiretap.</p>
    <h4 id="sigil_toc_id_104">The System of Intercepting Communications upon a Warrant</h4>
    <p class="f-prg">Following the Supreme Court’s decision a new inspection warrant authorizing wiretaps appeared. Due to the stringent requirements for issuing the warrant however a variety of problems arose, including the difficulty of identifying a subject since the phone conversations had not yet occurred at the time of issuance and the absence of a chance to file a <span class="w_jp key-wd">junkōkoku</span> against a decision granting one. These limited the use of wiretaps in investigations considerably. Academics also questioned the constitutionality of wiretaps owing to their infringing upon privacy of communication and because the specification of a subject of the warrant, a basic requirement, was quite difficult. They also argued that it would be better to prepare a system for wiretap warrants via legislation which would comply with the Constitution.</p>
    <p>In 1999 a criminal law reform aimed at combatting organized crime was enacted. One of its features was a system for the issuance of warrants by district court judges which authorized the secret interception of phone, fax and email communications as part of the investigation of certain types of organized crime such as drug, firearm and human trafficking related offences. The CCP was amended to provide that “compulsory measure for the interception of electronic communications without the consent of either party shall be conducted based upon another Act (art. 222-2)”, a reference to the Act on Wiretapping for Criminal Investigation (hereinafter “AWCI”), which was enacted. This Act sought to deal with the previously raised constitutional concerns and laid out detailed rules on wiretapping, including the procedures for requesting warrants and the requirements for their issuance, rules governing the methods by which wiretaps could be implemented, defined time limits for wiretaps, ex-post notification of interested parties and method of appeal and rules on the preservation of recordings. Now all wiretaps must be conducted in accordance with warrants issued under this Act and not upon inspection warrants.</p>
    <p>The Act clarifies a number of points. In terms of the subject of the wiretap it specifies that it is the collection of evidence which is expected to occur in the future. It also states that among the requirements for a warrant to be issued are for the crime being targeted to be limited and for difficulty to exist in identifying a suspect or uncovering the facts of a crime (art. 3 AWCI). In terms of the content of the communication to be intercepted, it requires simply that the facts of the suspected offence be stated in the wiretapping warrant itself (art. 6 AWCI. cf. art. 219). In 2016 the Act was amended to expand the scope of crimes which could be the subject of a wiretapping warrant. Now crimes related to murder, battery, false arrest and imprisonment, kidnapping, abduction, theft, robbery, fraud, extortion and child pornography are also covered. In keeping with the original intention of focusing on organized crime, wiretapping warrants can only be issued for these crimes when it is suspected that they have been committed as part of an organization (as opposed to by a suspect acting alone). Whereas previously wiretapping could only take place in real time the 2016 amendment also allowed new methods using information processing technology, which enabled wiretapping by methods other than real time listening (art. 20–<!--～-->23, 26 AWCI).</p>
    <h3 id="sigil_toc_id_105">2. Coercive Measures/Methods Accompanying Expert Examination</h3>
    <h4 id="sigil_toc_id_106">Request for Expert Examination (<span class="w_jp">Kantei Shokutaku</span>)</h4>
    <p class="f-prg">Investigations sometimes require an investigative authority to access specialized knowledge in areas which they lack expertise in. In such instances they may request an expert who possesses special knowledge in that area to provide a report in relation to certain facts which need to be understood from the perspective of their area in order for the investigation to proceed (art. 223). The expert is not necessarily obliged to provide their opinion since it is only a request, but there are situations where coercion may be necessary in order to conduct expert examination. The CCP therefore contains provisions that allow requests for detention for expert examination and permission for measures necessary to conduct an expert examination.</p>
    <h4 id="sigil_toc_id_107">Detention for Expert Examination</h4>
    <p class="f-prg">When conducting examination of the mental or physical condition of a suspect, sometimes it is necessary to confine the suspect in a hospital or other appropriate place (art. 224・167). This is called detention for expert examination (<span class="w_jp key-wd">kantei ryūchi</span>, cf. Ch.3-II: “<a href="p-003.xhtml#sigil_toc_id_277">3. Examination of Evidence</a>”) Expert’s Inquiry, Interpretation and Translation” for after the institution of prosecution)<!--この閉じパーレンはどの開きパーレンを受けているのでしょうか。-->. When the mental state of the suspect at the time the crime was committed is in question, for example, a psychiatric evaluation is sometimes required. Since it is preferable for medical interviews or psychological or psychiatric tests be performed or conducted in a hospital or some other medical facility than at the home or in the penal institution where the suspect is detained, this type of detention is sometimes necessary.</p>
    <p>Detention for expert examination starts with a request for such disposition to a judge from a public prosecutor, public prosecutor’s assistant or judicial police officer. If the judge deems the request to be reasonable they then issue a warrant for detention for expert examination which designates the period in which it may take place and authorizes the detention of the suspect in a hospital or other appropriate place. The convenience of the experts to perform the examination and safe custody are the main factors which determine where the suspect will be detained for the examination. Where a hospital lacks sufficient security and the suspect presents a high flight risk a judicial police officer may be ordered to guard the suspect during the detention. The period of the detention has no statutory limit and is generally decided based on a proposal from the expert which can be extended or shortened as necessary. When a warrant for detention for expert examination is executed against a suspect who is already being detained, the execution of their original detention will be suspended for the duration of the period of the expert examination (art. 224 II･167-2), after which they are returned to the penal institution to continue with their detention.</p>
    <h4 id="sigil_toc_id_108">Warrant for Measures Necessary for Expert Examination</h4>
    <p class="f-prg">A warrant known as a warrant permitting necessary measures for expert examination (<span class="w_jp key-wd">kantei shobun kyokajō</span>) is necessary for an expert who has received a request for expert examination to do certain things which might be necessary for that examination, such as entering the residence of a person, conducting an inspection of a person, performing an autopsy or destroying an object (art. 225・168). These warrants may be requested by a public prosecutor, a public prosecutor’s assistant officer or a judicial police officer and will be issued when the judge deems the request reasonable (art. 225 II III). The warrant contains the name of the suspect, the offence they are charged with, the name of the expert and the place to be entered, body to be examined, corpse to be autopsied or object to be destroyed (art. 225 IV・168 II). The judge may also add appropriate conditions to the warrant when necessary (art. 225 IV・168 III). The expert must show the warrant to the person who will undergo the expert examination (art. 225 IV・168 IV).</p>
    <p>In cases of inspection of a person conducted as a sort of necessary measure for an expert examination the CCP provisions regarding inspection of a person as a sort of inspection which detail the measures to be taken during the examination (such as the need for a physician or adult female to attend the inspection of a female) and those imposing civil fines or criminal punishment for refusing inspection of a person without justifiable reasons apply <span class="w_latin">mutatis mutandis</span> (art. 222 I・131, 137, 138, 139). However, the provisions regarding the use of direct compulsion against persons who refuse to undergo inspection of a person do not apply <span class="w_latin">mutatis mutandis</span> (art. 172). This raises the question of whether or not it is permissible to compulsorily execute an inspection of a person conducted as a necessary measure of expert examination when the subject refuses, a debate which is ongoing.</p>
    <h3 id="sigil_toc_id_109">3. Request for Pretrial Examination of a Witness</h3>
    <h4 id="sigil_toc_id_110">Request for Pretrial Examination of a Witness</h4>
    <p class="f-prg">An investigative authority may ask any witness who possesses information on a case other than the suspect to appear in their office voluntarily for questioning (art. 223 I). If the purpose of the investigation cannot be achieved by such voluntary procedure, a public prosecutor may request a judge to grant permission to examine the person as a witness. Only the public prosecutor can make such a request and must do so before the first trial date.</p>
    <h4 id="sigil_toc_id_111">Two Types of Request</h4>
    <p class="f-prg">A request for an examination of a witness can be made in two situations. The first is when a person who apparently possesses information indispensable to the investigation of a crime refuses to appear or make a statement voluntarily (art. 226). Requests in these situations are meant to avoid investigations running into dead ends when a witness, who otherwise cannot be forced to do anything, refuses to cooperate. The second situation is when a person who has previously made a voluntary statement to the investigative authority is likely to make a statement at a future trial that differs from that previous statement, and the statement of the person is deemed indispensable to prove a fact constituting the crime (art. 227 I).</p>
    <p>As will be explained later (cf. <a href="p-004.xhtml#sigil_toc_id_395">Ch.4-II</a>), the investigator’s record of an oral statement made in front of the investigative authority is not admissible as evidence, except in cases where the person who gave the statement “consents to using it as evidence,” or it satisfies the requirements of exceptions to the hearsay rule (art. 326 I, 321 I②③. cf. <a href="p-004.xhtml#sigil_toc_id_400">Ch.4-II-2</a>). Even with regard to a document which records a statement given before a judge, the hearsay rule is applicable, but the requirements for exceptions to it are not as strict, and when the person who made the statement “has given testimony at the trial that is different from a prior statement,” the prior statement may be used as evidence (art. 321 I①). Thus, when it is anticipated that the person who has previously given a statement would make a differing statement at future trial it is deemed necessary to have a document which has recorded the original statement produced before a judge.</p>
    <h4 id="sigil_toc_id_112">Procedures for Pretrial Examination of a Witness</h4>
    <p class="f-prg">A judge who receives a request for examination of a witness shall have the same authority as that which the court or presiding judge possesses in conducting the examination of a witness at trial (art. 228 I). In other words, the provisions of the CCP regarding examination of witnesses at trial are applied <span class="w_latin">mutatis mutandis</span> to the methods and procedures for this pretrial examination of witnesses (art. 143–<!--～-->). When the judge finds there is no fear of interference with the criminal investigation, they may have the accused, the suspect or the defense counsel be present at the examination (art. 228 II).</p>
    <h3 id="sigil_toc_id_113">4. Acquisition and Preservation of Electromagnetic Records</h3>
    <h4 id="sigil_toc_id_114">Legislation R<!--r→R-->egarding Acquisition and Preservation of Electromagnetic Records</h4>
    <p class="f-prg">In 2011 new compulsory measures were introduced to the CCP along with provisions regarding methods of executing the seizure of data recording media (in force since 2012). This was meant to deal with the widespread use of information technology in the decades following the introduction of the CCP, which necessitated newer methods of obtaining evidence from electronic data stored in computer servers and the like.</p>
    <h4 id="sigil_toc_id_115">Copying from a Recording Medium Connected via Telecommunication Lines</h4>
    <p class="f-prg">Among these newly introduced measures was one which allowed data stored in a distant recording medium from a computer (such as emails stored on an internet server which were originally written using the computer) to be copied and acquired. When an investigative authority wishes to seize a computer that is connected to a recording medium (such as an internet server) they may save the data on that medium onto the computer and seize the computer when it is reasonably believed that the medium was used to record data a) that were made or altered using the computer, or b) might be altered or erased in the future with that computer (art. 218 II). Since this is a form of seizure a seizure warrant is required (art. 218 I). To comply with the constitutional requirement that items seized must be described, the warrant must specify that the computer itself along with electromagnetic record obtained via connected telecommunication lines are the “articles to be seized”, with the scope of those records clearly defined (art. 35 Const.; art. 219 II). This description may for example define the item to be seized as “the storage area of the mailbox of the email server that corresponds to the account recorded in the email program installed in the computer used by A” or “the storage area of the mailbox of the email server that corresponds to the ID recorded in the application software for accessing such server installed in the computer used by A.” It is important to note that investigative authorities cannot copy data in this way without a warrant, even at the scene of an arrest since no provisions authorize this (art. 220 I② III, 99 II・222 I).</p>
    <h4 id="sigil_toc_id_116">Seizure Accompanying Recording Order (<span class="w_jp">kirokumeirei tsuki sashiosae</span>)</h4>
    <p class="f-prg">An investigative authority may, with a warrant, have the custodian of electromagnetic records or some other person entitled to use them copy them onto a recording medium (such as printing them out or storing them on a disk) and seize that copy (art. 99-2, 218 I). This type of compulsory measure is known as a seizure accompanying recording order. Since the actual subject of this type of disposition is the data needed as evidence itself the warrant must describe the data to be recorded and the person who will do so (art. 219 I). It is not necessary to specifically describe the individual recording medium itself (the computer for example), which distinguishes it from an ordinary seizure. The description may for example state “transmission records of emails sent and received by the email address of A between June 1, 2018 and June 30, 2018” thus identifying the dates, name and email address targeted. The investigative authority is entitled to have the custodian record them only to the extent necessary to achieve the investigative purpose, thereby allowing the authority to a) avoid the seizure of the recording media itself, b) have the custodian record data contained in multiple media onto a single medium and c) obtain that medium. Where such cooperation is not expected, the ordinary method of seizing the media itself is employed (another new provision deals with this point, which will be explained below).</p>
    <p>Since the system is based on the assumption that the custodian will be cooperative it is not included in the provision permitting compulsory measures without a warrant at the scene of an arrest (A warrant is thus required (art. 220 I② III)).</p>
    <h4 id="sigil_toc_id_117">Execution of Seizure of a Recording Medium Containing Electromagnetic Records</h4>
    <p class="f-prg">When “the item to be seized” is “a recording medium for electromagnetic records” such as a computer, an investigative authority may carry out a number of actions besides seizing the recording medium itself (art. 222 I・110-2). These provide the investigative authority with alternative methods for obtaining only the data necessary for the investigation from a large capacity server. The investigative authority may transfer the data to be seized onto another recording medium, print them out, or transfer them, and seize the latter recording medium (disc or print outs). “Transfer” means copying the data onto some other recording medium and at the same time, erasing it from the original medium. They may have the person in possession of the original medium conduct the transfer.</p>
    <h4 id="sigil_toc_id_118">Request for Cooperation to a Person Subject to a Compulsory Measure</h4>
    <p class="f-prg">Sometimes it is necessary for the investigative authority to have someone with technical knowledge assist them in executing the seizure of electronically stored data. This is enabled by a provision which obligates people subject to a measure to provide specialized technical cooperation. The investigative authority may ask the person to “operate the computer or ask for some other form of cooperation” (art. 222 I・111-2). Since the provision governing this applies <span class="w_latin">mutatis mutandis</span> to inspections, an investigative authority may also ask for cooperation when conducting an inspection of a recording medium which contains data.</p>
    <h4 id="sigil_toc_id_119">Request for Preservation of Transmission Records</h4>
    <p class="f-prg">Another new provision which permits an investigative authority to request telecommunications carriers to preserve transmission histories for a certain period has been established (art. 197 III IV). The acquisition and preservation of transmission histories is important to the investigation of crimes committed over networks. Since such records are usually erased after a short period of time the new provision allows investigative authorities to request custodians, oftentimes internet service providers, to not erase them until the investigation authority is able to seize the transmission records necessary for their investigation. Transmission histories are considered as falling under the protection of privacy in communication protected under article 21 II of the Constitution. Since the request for preservation provided in the CCP only requests carriers to not erase the transmission record that is recorded in the course of their business, which alone does not disclose it to the investigative authority¸ and there is no sanction against any violation of this obligation, such requests are not viewed as a form of compulsory measure.</p>
    <p>Preservation may be requested (1) when it is necessary for an investigative authority in conducting seizure or seizure of recordings, (2) when the parties subject to the request for preservation are telecommunication companies or companies which provide services regarding telecommunication facilities such as LAN, public office and universities, and (3) when the object of preservation are “the source, destination, date and time of the transmission and other transmission records of the electronic communications which are recorded in the course of business.” The investigative authority must specify the necessary data, a period not exceeding 30 days, and request, in writing, that such data not be erased. When necessary the preservation period may be extended for an additional period of up to 30 days, but the total preservation period must not exceed 60 days. If a seizure or seizure of recordings is no longer deemed necessary, the investigative authority must revoke the request for preservation. An investigative authority may request that matters relating to a request for preservation (art. 197 III) not be divulged without reason in order to prevent the subject of the investigation learning of and potentially interfering in it (art. 197 V). The same is true for a request for a report on necessary particulars relating to the investigation (art. 197 II).</p>
    <h3 id="sigil_toc_id_120">5. System of Negotiation and Agreement for Cooperation to Prosecute a Third Party (<span class="w_jp">Kyōgi Gōi Seido</span>)</h3>
    <h4 id="sigil_toc_id_121">Introduction of the System of Negotiation and Agreement for Cooperation in Investigation and Trial</h4>
    <p class="f-prg">In order to move away from the excessive dependency placed on the interrogation of suspects and the use of investigator’s records of oral statements and the obtaining of testimonial evidence by other methods, an amendment called the “system of negotiation and agreement regarding cooperation in investigation and trial” was introduced in 2016 and came into force on June 1, 2018 (art. 350-2–<!--～-->). This system allows public prosecutors to make an “agreement” with some suspects and defendants who are co-offenders, of certain finance and economic related crimes and drug/firearm related crimes. The agreement would have such person give true statements and provide other cooperative actions in order to clarify the facts of the crimes of others, and in such cases the public prosecutor will either not prosecute, demand a less severe sentence or perform some other beneficial act for the cooperative person. This system aims to obtain testimonial evidence necessary for the prosecution and punishment of the criminal acts of others through negotiation and agreement between both parties. The grounds for public prosecutors to make such agreements are found in the discretionary power of public prosecutors with regard to prosecution (art. 248).</p>
    <p>This system is applied to suspects or defendants in cases of “designated crimes” (obstruction of compulsory execution related crimes, counterfeit related crimes, crime of bribery, fraud and extortion, embezzlement, crimes provided in tax related laws, the Anti-Monopoly Act, the Financial Instruments and Exchange Act and other laws designated by Cabinet Order as financial and economic related crimes, drug and firearm crimes) who are deemed to possess information on the facts of crimes of “designated crimes” of others (art. 350-2 IV V).</p>
    <p>Public prosecutors may make an agreement with the suspect or the defendant when it is deemed necessary, taking into consideration (1) the importance of evidence that can be obtained through the cooperation of the suspect or defendant in order to clarify the facts of the crimes of others, (2) the weight of and extenuation for the crimes of the suspect or defendant, (3) the crimes of such other person, (4) the connection between the crimes of the cooperating suspect/defendant and the crimes of the other person, and (5) other circumstances (art. 350-2 I). The agreement provided in the CCP refers to the public prosecutor “agreeing” to have the suspect or defendant cooperate with the investigation and prosecution (to give true statements in order to clarify the facts of crime of another person upon interrogation as a suspect or a witness, to give true statements when being interrogated as a witness of the criminal case of another person, to submit evidence to the investigative authority in order to clarify the facts of the crimes of another person) and when they perform their obligation, the public prosecutor gives benefits to the suspect or defendant in regard to their case (rendering a disposition of no prosecution, prosecuting upon a count of an offense carrying a lighter punishment, rescinding of trial, requesting a change of count to an offense carrying a lighter punishment, petitioning for a speedy trial procedure, prosecuting accompanying the request for a summary order, making a statement requesting a lighter penalty). In order to make this agreement, the consent of the defense counsel is required (art. 350-3).</p>
    <p>The agreement must be in writing, must set out the content of the agreement in full and must contain the signatures of the public prosecutor, the suspect or defendant and their defense counsel. The “negotiation” to reach this agreement as a rule must be conducted by these three parties (art. 350-4). Before negotiating the public prosecutor must consult with judicial police officers in cases in which they sent the case to the prosecutor after conducting an investigation (art. 350-6 I).</p>
    <p>Further, when a judicial police officer is currently conducting an investigation of the facts of the crime of the other person and other circumstances that need consideration, and it is deemed necessary for the investigation of the facts of the crime of such other person, the public prosecutor may have the judicial police officer conduct actions necessary for “negotiation” (art. 350-6 II). In such cases the judicial police officer may, within the scope authorized by the public prosecutor, present the prosecutor’s offer of beneficial action to be agreed upon to the suspect or the defendant and their defense counsel. The purpose is to ensure close cooperation with police investigations and to ensure its appropriateness.</p>
    <h4 id="sigil_toc_id_122">Special Rules Applied at Trial</h4>
    <p class="f-prg">In order to clarify the existence of the agreement within the trial procedure, the public prosecutor must request the examination of documents regarding the agreement when there is an agreement in the case (art. 350-7). The same is true for cases where the evidence which was obtained based upon an agreement is to be used to prove the criminal facts of another person (art. 350-8, 350-9). When a party withdraws from the agreement afterward the same procedure is taken with regard to the withdrawal.</p>
    <h4 id="sigil_toc_id_123">Termination of Agreement and Securement of Execution</h4>
    <p class="f-prg">A party may withdraw from the agreement either when the other party breaches the agreement or under certain other circumstances (art. 350-10). When a public prosecutor exercises their authority to institute prosecution in breach of an agreement, the court renders a judgment of dismissal (art. 350-13). Furthermore if a public prosecutor breaches the agreement then any statements or evidence the defendant has given about the crimes of another person based on the agreement cannot as a rule be used as evidence (art. 350-14). This inadmissibility also applies to statements or evidence given during negotiations when no agreement is ultimately reached (art. 350-5 II). Punishment is proscribed for instances when a suspect or defendant gives false statements or counterfeit evidence so as to reduce the likelihood of other people being prosecuted based on false evidence (art. 350-15).</p>
    <h2 id="sigil_toc_id_124">VII. Defense of Suspects</h2>
    <p class="f-prg">In this part we look at the defense of suspects in the stage of the process that precedes the institution of prosecution. While in about 70% of cases investigations proceed without suspects being held in custody for the sake of examining the process in more detail we’ll focus here on cases in which suspects are arrested by judicial police constables based on an arrest warrant.</p>
    <h3 id="sigil_toc_id_125">1. Appointment of Defense Counsel</h3>
    <h4 id="sigil_toc_id_126">Right to Appoint a Defense Counsel (<span class="w_jp">Bengonin Sennin Ken</span>)</h4>
    <p class="f-prg">When arrested a suspect is immediately brought to a judicial police officer (art. 202). The judicial police officer must then “immediately inform the suspect of the essential facts of the suspected crime and the fact that the suspect may appoint defense counsel (<span class="w_jp key-wd">bengonin</span>), and give him a chance to explain” (art. 203 I). The right of suspects to receive this notification is guaranteed by article 34 of the Constitution. The right of suspects to “appoint counsel at any time” as provided in article 30 I of the CCP (which applies regardless of whether they are being held in custody or not) is very important as under the former CCP this right only applied to defendants (art. 39 I). Defense counsel, as legal experts, serve to protect the legitimate interests of the suspect and must be an attorney at law (<span class="w_jp key-wd">bengoshi</span>) (art. 31 I). To become an attorney at law, as a general rule, a person must complete the legal apprentice training course, and must have their name registered in the roll of attorneys at law held by the Japan Federation of Bar Associations (<span class="w_jp key-wd">Nihon Bengoshi Rengōkai</span>) (art. 4, 8 Attorney Act). The Supreme Court has decided that the appointment of a person who is not an attorney at law, the so-called special defense counsel system (<span class="w_jp key-wd">tokubetsu bengonin</span>; art. 31 II), may not be employed before a suspect is prosecuted (<span class="case_j" id="cj_id_s1993-10-19_ch1-7_01">Sup.Ct. Oct. 19, 1993 (47 Keishū 67)</span>).</p>
    <h4 id="sigil_toc_id_127">Procedure for Appointment</h4>
    <p class="f-prg">A suspect who has been arrested may make a request to “the penal institution warden or his deputy” for appointment of counsel, and name an attorney at law, a law firm or a bar association (art. 209・78 I). When a judicial police officer informs a suspect who has been arrested that they may appoint counsel, the officer instructs the suspect that they may make a request for appointment of counsel by naming an attorney at law, a law firm or a bar association and to whom such request can be made (art. 203 III). “The penal institution warden or his deputy” shall then immediately inform the attorney at law, the law firm or the bar association that such request has been made (art. 209・78 II). In practice suspects usually make the request for appointment of counsel to a judicial police officer. Of course, whether the attorney at law receiving such a request accepts the request or not is up to them.</p>
    <p>Not only the suspect, but also their legal representative, guardian, spouse, lineal relative, brother or sister may appoint a counsel (art. 30 II). In practice this provision only comes into play when these people have been informed of the fact that the suspect has been arrested (there being no obligation to notify them of the fact of arrest means that this is not always the case. (cf. 1-III-3: “<a href="#sigil_toc_id_57">Legal Position of Arrestee</a>”)).</p>
    <p>Since the mode of appointing counsel is not provided explicitly, they may be appointed orally. However, usually, it is done by submitting a form for the appointment of counsel, which is signed by the counsel and the suspect (or other people entitled to appoint counsel), to the public prosecutor or judicial police officer handling the suspect’s case (art. 17 RCP; art. 133 I CIR. With regard to defendants, the submission of a jointly signed form is required (art. 18 RCP. <a href="p-form04.xhtml">[FORMAT 4] “Notification of Appointment of Lawyer”</a>)). If the appointment is conducted in this manner, even when prosecution is instituted and the suspect becomes a defendant, the appointment of the defense counsel remains effective at the court of first instance (art. 32 I; art. 17 RCP). The number of counsel that can be appointed is limited to three per suspect (art. 35). However, upon request of the suspect, and upon finding that there are special circumstances for the case at hand, the court may, as an exception, designate the number of defense counsel to be permitted and permit the appointment of more than three (art. 27 RCP). The Supreme Court has held that these “special circumstances” “can be found in situations where the case requires a wide range of defense activities to the extent that it is necessary to appoint more than three persons as defense counsel due to the complexity of the case or the necessity to interview the suspect frequently, and where appointing such extra persons as defense counsel is unlikely to cause problems (<span class="case_j" id="cj_id_s2012-05-10_ch1-7_01">Sup.Ct. May 10, 2012 (66 Keishū 663)</span>).</p>
    <h4 id="sigil_toc_id_128">Appointment of Counsel for Detained Suspects</h4>
    <p class="f-prg">When a suspect has been detained, a judge must immediately notify their defense counsel of the fact of detention (art. 207 I・79). When no defense counsel has been appointed for the suspect, notification shall be given to the person who has been specified by the suspect from among their legal representative, guardian, spouse, lineal relatives or siblings. When these people do not exist notification shall be given to another person designated by the suspect, such as an employer or acquaintance (art. 302 I・79 RCP). Although the detention of suspects is always conducted following arrest, and they are notified at that point of their right to appoint counsel (art. 203 I, 204 I), in practice, in order to fully protect the right to defense, suspects are often notified again of the right to appoint counsel during the hearing to determine whether or not to detain the suspect (detention hearing). Even when such notice is given, however, the appointment of counsel does not always proceed smoothly since many suspects do not know any attorneys at law. The law thus entitles suspects to request the appointment of counsel by simply specifying the bar association (art. 207 I・78).</p>
    <h4 id="sigil_toc_id_129">The Duty Attorney System (<span class="w_jp">Tōban Bengoshi Seido</span>)</h4>
    <p class="f-prg">In order to make the appointment of counsel through the specification of a bar association effective, bar associations have begun to implement a system of assigning attorneys at law―registered in the list of recommended counsel―to a particular date (“duty date”) and mandating those attorneys (“duty attorneys (<span class="w_jp key-wd">tōban bengoshi</span>)”) promptly go to police stations to visit detained suspects and give advice/assistance, upon request to the bar association from the suspect or their spouse or relatives. The first interview is free of charge; if the suspect wishes to appoint the duty attorney as counsel, the duty attorney accepts the appointment as private defense counsel. A legal aid system for indigents is available for those who cannot afford to hire an attorney. This system is called the duty attorney system.</p>
    <p>The duty attorney system was started by the bar associations of Oita and Fukuoka in 1990, and it had been implemented by all other bar associations nationwide by the end of 1992. Most court houses post notices regarding the duty attorney system as well.</p>
    <h4 id="sigil_toc_id_130">Privately Appointed Counsel (<span class="w_jp">Shisen Bengonin</span>) and Court-appointed Counsel (<span class="w_jp">Kokusen Bengonin</span>)</h4>
    <p class="f-prg">Until recently the system of court-appointed counsel for suspects in which the court appoints counsel when a suspect cannot do so due to financial or other reasons did not exist. All counsels were simply appointed privately by the suspects themselves and they could not request the court to appoint counsel (nor did the court possess this power) (art. 30, 36, 37). We lack statistics on the number of counsels that have been appointed for arrested suspects in comparison to suspects in general, but judging from the number of defendants with counsel (cf. <a href="p-003.xhtml#sigil_toc_id_220">Ch.3-I-1</a>), the rate can be estimated at roughly 20% of all suspects.</p>
    <h4 id="sigil_toc_id_131">Approach to Improvements</h4>
    <p class="f-prg">It has been pointed out that needs for improvement in the defense of suspects, including legislative changes, exist. In response to one such critique a legal aid system (<span class="w_jp key-wd">hōritsufujo seido</span>) was extended to suspects in 1990. Under this system a suspect is temporarily loaned the money necessary to cover the costs of hiring an attorney as defense counsel. When a counsel has been appointed by the suspect using the legal aid system after meeting the attorney under the duty attorney system, and is prosecuted thereafter, it became common practice for the counsel to resign and for the court to appoint the same attorney as court-appointed counsel immediately thereafter. These informal practices were of limited effect however and further changes were required.</p>
    <h4 id="sigil_toc_id_132">Introduction of Court-appointed Defense System for Suspects (<span class="w_jp">Higisha Kokusen Bengo Seido</span>)</h4>
    <h5 id="sigil_toc_id_133">1) Recommendations of the Justice System Reform Council and Realization of Law Amendment</h5>
    <p class="f-prg">In 2001 the Justice System Reform Council (<span class="w_jp key-wd">Shihōseido Kaikaku Shingikai</span>) recommended the introduction of the public defense system (court-appointed defense system) for suspects from the standpoint of effectively guaranteeing their right to receive the assistance of counsel. Based upon the recommendation of the council, the court-appointed defense system for detained suspects in a certain range of cases was introduced by amending the CCP in 2004 (art. 37-2–<!--～-->37-5). As mentioned earlier, previously the court was not entitled to appoint counsel for suspects, so this was a landmark reform. Provisions regarding the requirements and procedures for the appointment of court-appointed counsel for the defendant were also reformed at the same time (art. 31-2, 36-2, 36-3, 38-2–<!--～-->38-4). The system of court-appointed counsel for suspects is further explained below. The Japan Legal Support Center (<span class="w_jp key-wd">Nihon Shihō Shien Sentā</span> (<span class="w_jp key-wd">Hōterasu</span>); hereinafter JLSC) was established by the Comprehensive Legal Support Act of 2004, and has since been undertaking the administration of the court-appointed counsel system.</p>
    <h5 id="sigil_toc_id_134">2) Cases in which Court-appointed Counsel System for Suspects is Applied</h5>
    <p class="f-prg">Taking into considerations the current number of attorneys who are able to assume the role of court-appointed counsel for suspects and efforts of the JLSC to secure attorneys, the law has gradually expanded the cases which fall under the system. In the beginning, the law was applicable only to cases punishable either with the death penalty, life imprisonment, or imprisonment with or without work carrying a minimum term of one year or more, but now it has been expanded to cases punishable with imprisonment with or without work whose maximum term is more than three years (cases which may not be tried without the attendance of counsel (<span class="w_jp key-wd">hitsuyōteki bengo jiken</span>)).</p>
    <p>In 2015, approximately 67,000 detained suspects requested the appointment of counsel, and approximately 65,000 obtained a court-appointed counsel. In order to make the system effective, it is clear that the most important task is to secure a sufficient number of attorneys, the ultimate bearers of the system. At JLSC, attorneys who will serve as court-appointed counsel are secured by contract, and offices are established in areas with few attorneys. JLSC has been aiming to consolidate the system in order to realize an equal and precise distribution of court-appointed counsel nationwide, which it has gradually succeeded in doing. Taking into account this consolidation of the system, the amendment of the CCP in 2016 expanded the object of court-appointed counsel to suspects in all cases (art. 37-2). Regardless of the seriousness of the case, enabling any and all detained suspects to receive the assistance of counsel will further contribute to the improvement of the protection of the rights of suspects and the overall standards of the criminal justice system.</p>
    <h5 id="sigil_toc_id_135">3) Requirements, Procedures and Effects of Appointment</h5>
    <p class="f-prg">Court appointed counsel may be appointed upon request or <span class="w_latin">ex officio</span>. Since there is no “court” assigned to the cases of “suspects”—as opposed to “defendants”—, the appointment of court-appointed counsel for them is performed by a judge. A suspect against whom a detention warrant is issued or detention has been requested, may request a judge to appoint a counsel when the suspect is unable to appoint counsel due to indigence or some other grounds (art. 37-2).</p>
    <p>A report on the requestor’s financial resources is submitted when making a request for court-appointed counsel (art. 37-3). A person whose financial resources are above the base amount defined by Cabinet Order (currently 500,000 yen) must first make a request for the private appointment of counsel before requesting court-appointed counsel. Suspects whose financial resources fall below this amount are recognized as being incapable of appointing private counsel due to indigence.</p>
    <p>The bar association which receives a request for private appointment of counsel shall inform the court of its response in order to contribute to the determination of whether or not “other grounds” exist (art. 37-2 I). The judge who received the request then appoints counsel for the suspect, when the judge deems the requirements are fulfilled. Since the appointment may not be made before the issuance of a “detention” warrant, a suspect “arrested” may not obtain an appointed counsel.</p>
    <p>In many cases, a detained suspect makes a request for the appointment of court-appointed counsel when they are brought to the court for the hearing to determine whether or not to detain them. The presiding judge in that hearing examines the suspect’s financial resources and other requirements and, if the judge determines the requirements are met, makes an immediate request to the JLSC for recommendations of candidates for court-appointed counsel. On receiving the list of candidates from the JLSC the judge (or another of the same court) issues an order of appointment. In large cities the appointment of counsel is usually issued on the same day the request was made (or the next day at the latest) even if it is made on a weekend or holiday.</p>
    <p>In some instances it may be difficult due to mental incapacity or for some other reason to determine if counsel is necessary for a suspect who may in fact be entitled to request the appointment of a courtappointed counsel. A system for the appointment of counsel at the discretion of judges (appointment <span class="w_latin">ex officio</span>) has been established to deal with such situations and ensure that where appropriate court-appointed counsel are provided in such cases (art. 37-4). In addition, the complexity of the case, especially in those with heavy statutory penalties, may require the appointment of more than one counsel and a similar system allows judges to appoint more than one at their discretion (<span class="w_latin">ex officio</span> additional appointment (art. 37-5)).</p>
    <p>When a suspect is released in a case the appointment of counsel by the court is terminated in regard to that case, unless the release is due to a stay of execution (art. 38-2). On the other hand when the suspect is prosecuted while in detention the appointment continues in effect through to trial in the court of first instance (art. 32 I).</p>
    <h5 id="sigil_toc_id_136">4) Instruction on the Procedure of Request for the Court-Appointment of Counsel</h5>
    <p class="f-prg">An appointment of counsel by the court takes place after the issuance of a detention warrant. The investigative authority notifies the suspect that they have the right to request appointment of a counsel by court and also informs them of the required procedures, which is important since making a request is necessary for them to exercise this right. The CCP obliges investigative authorities to instruct suspects on arrest, which comes before detention, about the procedure they must follow to request court-appointed counsel when informing them of their right to the same (art. 203 IV, 204 III). More precisely suspects must be informed that if detention is requested and they cannot appoint counsel on their own due to indigence or some other reason, they may ask a judge to appoint a counsel for them and, if they make such a request, that they will have to submit a report on their financial resources. If it is found that their financial resources exceed the base amount, they will have to make a request for privately appointed counsel to a predetermined bar association. The base amount is determined by Cabinet Order, but the suspect must be informed of this amount and the bar association to which they should make a request for private appointment of counsel (art. 203 III, 204 II). These instructions are given again when a judge receiving the request for detention informs the suspect of the case at the detention hearing (art. 207 II･IV).</p>
    <h5 id="sigil_toc_id_137">Legal Costs</h5>
    <p class="f-prg">When the services of a privately appointed counsel are retained, the suspect will incur certain related costs. A retainer is paid at the time of appointment regardless of what result the counsel ultimately achieves, while additional legal fees depend on the results of the case, such as whether a prosecution is instituted or not. Since a partial amendment of the Attorney Act in 2003 it has been possible for the attorney and client to freely determine the amount of remuneration to be paid. The remuneration must, however, be appropriate and reasonable in light of the time spent, the work load, the difficulty of the case and other relevant circumstances (art. 2 “Rules on Attorney’s Fees” 2004).</p>
    <h3 id="sigil_toc_id_138">2 Rights of the Suspect and Interrogation</h3>
    <h4 id="sigil_toc_id_139">Right to Silence (<span class="w_jp">Mokuhi Ken</span>)</h4>
    <p class="f-prg">As noted earlier suspects will be interrogated irrespective of whether or not they are held in custody. At the beginning of each interrogation session they must be notified that they are not required to make any statements against their will (art. 198 II. Cf. <a href="p-form05.xhtml#form05ws">[FORMAT 5] “Written Statement</a>”).</p>
    <p>At the time of enactment of the current CCP, it was provided that the “suspect must be notified in advance that they can refuse to make a statement.” This came against a backdrop of deep reluctance among investigative authorities to inform suspects of this right, which led to some debate when the CCP was amended in 1953, but it was ultimately decided to retain the requirement as worded.</p>
    <p>In general, this provision is understood to have guaranteed the right to silence—a right deriving from a Constitutional right of not being forced to give testimony against oneself—and this notification is sometimes called the notification of the right to silence (art. 38 I Const.). This right to silence, it should be noted, does not in itself contain a right to denial.</p>
    <h4 id="sigil_toc_id_140">Obligation to be Interrogated (<span class="w_jp">Torishirabe Junin Gimu</span>)</h4>
    <p class="f-prg">A number of problems are posed by the interrogation of suspects in custody to the right to silence.</p>
    <p>When a suspect in custody is asked to appear in an interview room, for example, can they refuse to do so? And after appearing, do they have to remain? When a suspect is not in custody these issues do not arise since interrogations of them are conducted on a voluntary basis. But for those too some issues do arise—once a suspect has voluntarily accompanied an investigator to an interview room, to what extent is interrogation permissible? Disputes over the legitimacy of prolonged interrogations which involve overnight stays have also been disputed (<span class="case_j" id="cj_id_s1984-02-29_ch1-7_01">Sup.Ct. Feb. 29, 1984 (38 Keishū 479)</span>).</p>
    <p>This issue is usually approached as one involving the interpretation of article 198 I of the CCP which states “the suspect may, except in cases where he is under arrest or under detention, refuse to appear or after he has appeared, may withdraw at any time.” There are, however, a number of fundamental issues connected to it, including the basic understanding of what the nature and structure of an investigation are and the interpretation of a certain provision in the Constitution which combines to make the issue more difficult to resolve (cf. <a href="#sigil_toc_id_29">Ch.1-II-1</a>).</p>
    <p>In practice however it is understood that a suspect who has been arrested and is under detention is obliged to appear and remain at the place of interrogation, or in other words they are under an “obligation to be interrogated”.</p>
    <h4 id="sigil_toc_id_141">Attendance of Counsel at Interrogation</h4>
    <p class="f-prg">Though controversial it is understood in practice that the CCP does not guarantee a suspect the right to have their counsel present during interrogation (though it should be noted that a provision of the CIR does anticipate the attendance of counsel (art. 180 II)).</p>
    <h4 id="sigil_toc_id_142">The Percentage of Cases Where the Suspect Had Confessed</h4>
    <p class="f-prg">We do not have data on what percentage of suspects exercise their right to silence during interrogations or deny the accusations against them. The “Annual Report of Judicial Statistics (<span class="w_jp key-wd">Shihō Tōkei Nenpō</span>)” however does provide us with data from ordinary cases in courts of first instance on cases in which the suspect confesses (in the final phase admits all charged facts and does not assert defenses of legal reason for exemption of the crime or matters which would constitute reasons for a reduction in punishment) and other cases (where the defendant asserts a general or partial denial of guilt, keeps silent or cases that were closed before reaching the stage of arraignment at trial).</p>
    <p>In 2015 about 89% of suspects confessed in cases before district courts and about 92% before summary courts (based on the number of persons, not cases). Overall these numbers have been decreasing over time, and in particular types of cases, including murder, robbery causing death or injury and injury causing death, the rate is lower than average.</p>
    <p>In cases where the court at its discretion has decided to try a case by a panel of judges (<span class="w_jp key-wd">saitei gōgi jiken</span>) (art. 26 II① CA), which only constitute a small portion of the total number of ordinary cases (about 1% in 2015), the number of cases where the defendant denies their guilt or remains silent is quite high, owing partly to the fact that cases which are difficult to solve are selected.</p>
    <h4 id="sigil_toc_id_143">Audio and Video Recording of Interrogations (<span class="w_jp">Torishirabe no Rokuon Rokuga</span>)</h4>
    <p class="f-prg">The question of whether or not to require audio and video recordings be made of interrogations has been discussed for a long time. As explained earlier (cf. <a href="#sigil_toc_id_36">Ch.1-II-2</a>) in 2016 an amendment (which was mandated to come into effect within three years of June 3, 2016) to the CCP introduced a requirement that investigative authorities record interrogations of suspects detained for cases to be tried by the lay judge system and cases involving independent investigations by public prosecutors (art. 301-2 IV). Well publicized incidents of false charges being laid against suspects and the enactment of the Act on Criminal Trials with the Participation of <span class="w_jp">Saiban’in</span> (hereinafter “<span class="w_jp">Saiban’in</span> Act”) (cf. <a href="p-003.xhtml#sigil_toc_id_360">Ch.3-III</a>) had created added impetus for the introduction of the practice of recording interrogations before 2016. As early as 2006 partial recording (limited to the extent that would not interfere with the conduct of interrogations) was trialed in cases in which the need for effective and efficient proof of the voluntariness of a confession was recognized at public prosecutors offices.</p>
    <p>In 2011 it was decided to expand the tentative recording to cases that are subject to the lay judge system, and thereafter, the recordings began to be implemented also in cases where the previous aim of proving the voluntariness with the existence of confession statement did not apply. Between September 2011 and September 2015 interrogations were recorded in approx. 14,500 out of approx. 15,500 total cases (about 94%) subject to the lay judge system. In approx. 9,800 of these cases (about 68%) the entire process of the interrogation was recorded. Limiting these to those in which a request for trial was made under the charges subject to the lay judge system, recordings were conducted in approx. 5,500 out of approx. 5,600 cases (about 98%). Between April 2013 and March 2014 in about 90% of cases which were recorded the entire interrogation was recorded. Partial recording also began to be tested at police stations from 2008 and this was expanded in 2012 to include cases that are subject to the lay judge system. At public prosecutors offices as well, recordings of interrogations in independent investigations by public prosecutors handled by special investigation and special criminal departments were also conducted. The recording of interrogations by both police and prosecutors are expected to expand beyond cases which are currently provided for by the law.</p>
    <h3 id="sigil_toc_id_144">3. The Right to Consult and Communicate with the Defense Counsel (<span class="w_jp">Sekken Kōtsū Ken</span>)</h3>
    <h4 id="sigil_toc_id_145">What is Consultation and Communication with the Defense Counsel?</h4>
    <p class="f-prg">Simply put, a defense counsel has to put some work in if they wish to adequately protect the interests of their client, the suspect. One of the most important things they must do is interview the suspect. They must of course first find out where their client is being detained and then go there to meet with them, explain their rights, find out about the relevant circumstances surrounding the alleged crime and develop a defense strategy. The CCP provides that a “suspect in custody may, without any official being present, have an interview with, or send to or receive documents or articles from counsel or prospective counsel upon the request of a person entitled to appoint counsel” (art. 39 I). This is called the right to consult and communicate between the suspect and the defense counsel. It is the right of the suspect and also the right of the defense counsel to consult and communicate with each other. This right must be “free” in the sense that such interviews must be held without any official being present (<span class="w_jp key-wd">jiyū kōtsū ken;</span> <span class="w_jp key-wd">himitsu kōtsū ken</span>).</p>
    <p>Under the former CCP interviews between suspects and defense counsel could be held only after the institution of a prosecution and the detaining officer was entitled to be present (art. 111). In practice officers could stop conversations between suspects and their counsel when it reached the substance of the case, significantly interfering in their ability to have any meaningful communication. In light of this, the introduction of the right was a major reform. The Supreme Court has held that “the right to consult and communicate with the defense counsel is one of the most important fundamental rights in criminal procedure for suspect in custody for receiving aid of counsel” (<span class="case_j" id="cj_id_s1978-07-10_ch1-7_01">Sup.Ct. July 10, 1978 (32 Minshū 820)</span>).</p>
    <h4 id="sigil_toc_id_146">Limitations on Interviews</h4>
    <p class="f-prg">While the CCP provides a right to consult and communicate with counsel, it also places a significant limitation on that right. Article 39 III states that “A public prosecutor, public prosecutor’s assistant officer or judicial police official may, when it is necessary for investigation, designate the date, place and time of the interview or sending or receiving of documents or articles prescribed in section I only prior to the institution of prosecution. However, such designation shall not unduly restrict the rights of the suspect to prepare for defense.” Thus, while the investigative authority cannot forbid the interview itself (compare this with interviews with persons other than defense counsel), it still has control over the date, place and time at which it will be held (<span class="w_jp key-wd">sekken shitei</span>).</p>
    <p>The CCP attempted to strike a balance between the importance of preparing for defense and the necessities of investigations. However, since this is an area where the defense and the investigation collide with each other, from the enactment of the current law until now, various theoretical and practical disputes regarding this clause, including the constitutionality of the article 39 III main clause have continuously been argued. This remains one of the most important issues in criminal procedure.</p>
    <p>Interviews it should be noted may only be thus limited “before the institution of prosecution.” However, the Court has held that even after the institution of prosecution, when there is another crime under investigation and the person is being detained as a suspect for that crime, designation of the date, time and place of an interview is possible “as long as it does not amount to unreasonable restriction upon the rights of the defendant to prepare for defense.” (<span class="case_j" id="cj_id_s1980-04-28_ch1-7_01">Sup.Ct. April 28, 1980, (34 Keishū 178)</span>). Of course, even if there is another crime under investigation, if the person is not held in custody for that crime, the investigative authority may not designate the details of the interview (<span class="case_j" id="cj_id_s1966-07-26_ch1-7_01">Sup.Ct. July 26, 1966 (20 Keishū 728)</span>). These designations were often used in cases where interviews with person other than counsel had been forbidden by an order of the judge in an investigation, though recently this practice has been abandoned. From the types of cases in which non-counsel interview is forbidden, the complexity of the problems regarding designation can be seen (cf. Ch.1-VII-3: “<a href="#sigil_toc_id_151">Forbidding the Interview</a>”).</p>
    <h4 id="sigil_toc_id_147">Method of Designation</h4>
    <p class="f-prg">Shortly after the enactment of the current CCP, prosecutors adopted the practice of first sending a general designation form (<span class="w_jp key-wd">ippanteki shiteisho</span> stating that the date, place and time of the interview will be described in a form that will be issued separately) to the head of the penal facility where the suspect was detained (chief of the police station when the suspect was detained in a (police) detention facility) when restrictions upon an interview were deemed necessary. Then at a later time a specific designation form (<span class="w_jp key-wd">gutaiteki shiteisho</span>) which described the particulars of date, place and time of the interview was issued to counsel. Defense counsel had to bring this specific designation form to the place of the interview to meet the suspect. This was also defined in a directive of Minister of Justice titled “Rules for the administration of cases”. This was called the designation form method (<span class="w_jp key-wd">shiteisho hōshiki</span>), or “interview ticket system (<span class="w_jp key-wd">menkai kippu sei</span>)” in the words of counsel.</p>
    <p>This system was revised after the directive, and the general designation form was abolished in 1988. It has been replaced with the current “notification form (<span class="w_jp key-wd">tsūchisho</span>)” which states that “this is to notify that the date, place and time of interview may be designated.” This is issued to the chief of the penal institution.</p>
    <p>When the suspect or their counsel is dissatisfied with the content of a designation they may file a request with the court to revoke or amend it (<span class="w_jp">junkōkoku</span>; art. 430, cf. <a href="p-006.xhtml#sigil_toc_id_519">Ch.6-IV</a>).</p>
    <h4 id="sigil_toc_id_148">Court Cases</h4>
    <p class="f-prg">In the past, parties employed the means of <span class="w_jp">junkōkoku</span> in general to resolve disputes concerning the designation of interviews, but recently, they have mainly employed lawsuits for state redress. The Grand Bench of the Supreme Court, acknowledging the constitutionality of article 39 III, held that a reasonable balance must be struck between the exercise of the right to consult and communicate with the defense counsel and the exercise of investigative power, provided that the goal of article 34 of the Constitution to guarantee opportunities for suspects in custody to be assisted by defense counsel is not harmed in a substantial way. It further held that as a rule, the investigating agency is under obligations to provide opportunities for interviews when so requested by the defense counsel, and if, at the time of the request by the defense counsel for an interview, the investigating agency is actually interrogating the suspect or the suspect is attending an on-site investigation, that is, “if an interview is allowed, an obvious obstruction emerges, such as an obstruction by interruption of interrogation,” the investigating agency should designate the time, place and date which is as early as possible upon consultation with the defense counsel and take measures to ensure that the suspect is able to prepare the defense with the defense counsel (<span class="case_j" id="cj_id_s1999-03-24_ch1-7_01">Sup.Ct. March 24, 1999 (53 Minshū 514)</span>). In particular, “the first interview after arrest” between the suspect and the person who is expected to be their defense counsel, is deemed to be very important for the preparation of their defense (<span class="case_j" id="cj_id_s2000-06-13_ch1-7_01">Sup.Ct. June 13, 2000 (54 Minshū 1635)</span>).</p>
    <p>According to the Court, “cases where obvious obstruction to investigation emerges” include the situation where there is a fixed schedule to interrogate the suspect shortly after, and if an interview is allowed in accordance with the request of the defense counsel, the scheduled interrogation would not be able to start as planned (<span class="case_j" id="cj_id_s1991-05-10_ch1-7_01">Sup.Ct. May 10, 1991 (45 Minshū 919)</span>, <span class="case_j" id="cj_id_s1999-03-24_ch1-7_02">Sup.Ct. March 24, 1999 (53 Minshū 514)</span>).</p>
    <h4 id="sigil_toc_id_149">Date and Time to be Designated</h4>
    <p class="f-prg">The date and time of interview must be during the working hours of the penal institution and not fall on weekends or holidays. The number of counsels must be three or less, but when a defense counsel requests to visit outside of these conditions the warden of the penal institution is to permit the interview “except when it does hinder the management and administration of the penal institution.” (art. 39 II; art. 118 I–<!--～-->IV APDF). The same is true for suspects detained in a police detention facility (art. 220 I–<!--～-->IV APDF).</p>
    <h4 id="sigil_toc_id_150">Interview with Persons Other than Counsel (<span class="w_jp">Menkai</span>)</h4>
    <p class="f-prg">There is no express provision which permits, as a right, arrested suspects to meet with people other than their defense counsel, such as their spouse, lineal relatives, or siblings (articles 209, 211, and 216 do not apply <span class="w_latin">mutatis mutandis</span> article 80). Of course, the mere fact that it is not expressly provided does not mean visitations are not allowed. Detained suspects may, though “subject to relevant laws and regulations,” have an interview with, or send to or receive documents or articles from persons other than their defense counsel (art. 207 I･80). For example, the APDF provides restrictions on the attendance of staff members of penal institutions and the audio or video recording of such interviews (art. 116). The APDF also regulates the number of persons who may visit, the place, date and time of visits, their duration and the overall number of interviews and places some restrictions on the method of visits (art. 118 V, 114). These regulations also apply to suspects held in police detention facilities (art. 218, 220 V･VI).</p>
    <h4 id="sigil_toc_id_151">Forbidding an Interview (<span class="w_jp">Sekken Kinshi</span>)</h4>
    <p class="f-prg">A judge may, upon the request of a public prosecutor or <span class="w_latin">ex officio</span>, prohibit a detained suspect from having an interview with persons other than their defense counsel or prohibit the sending or receiving of documents or articles, when there is probable cause to believe that the suspect may flee or conceal or destroy evidence (art. 207 I･81). The judge may also censor or seize documents and other articles.</p>
    <p>With regard to consulting and communicating with defense counsel, as explained before, only the designation of an interview by an investigative authority is permitted, but here, a judge may prohibit the interview as a whole. However a judge shall neither prohibit the delivery of food, nor shall seize it. (art. 81 proviso). The combined number of cases made before and after prosecution and the number of decisions in which a request to prohibit an interview was made was approximately 40,500 in 2015 (approx. 16,500 at Summary Court, approx. 24,000 at District Court).</p>
    <p>The types of cases in which interviews are prohibited are mainly public safety cases, labor dispute cases, bribery cases, violations of the Public Officers Election Law, violations of Stimulants Control Act, and serious cases where the suspect is remaining silent or denying their connection with the offense suspected. In these cases, it is common for public prosecutors to request prohibition of an interview to a judge at the same time as requesting detention, in order to prevent the suspect from concealing or destroying evidence by conspiring with their accomplice. When dissatisfied with the decision to prohibit interviews, suspects may challenge it through a <span class="w_jp">junkōkoku</span> (art. 429 I②) or defense counsel may file a motion to cancel the prohibition entirely or in part. When such motion is filed, the judge ordinarily determines the necessity of exercising its authority after hearing the opinion of the public prosecutor.</p>
    <h3 id="sigil_toc_id_152">4. Others</h3>
    <h4 id="sigil_toc_id_153">Pretrial Preservation of Evidence (<span class="w_jp">Shōko Hozen</span>)</h4>
    <p class="f-prg">Investigative authorities collect evidence which for the most part is disadvantageous to suspects for use against them in an upcoming prosecution. They may also, however, find evidence that exonerates or is otherwise advantageous to suspects. Since the two sides are in an adversarial relationship however there are barriers to the sharing of such evidence. Although it is not impossible for suspects or defense counsel to find and collect evidence on their own, since they are not allowed to conduct compulsory measures, they are at a relative disadvantage in terms of their capacity to collect it.</p>
    <p>The CCP thus provides that “when there are circumstances which suggest that it will be difficult to use the evidence unless it is preserved in advance,” the suspect or their counsel may “request a judge for a seizure, search, inspection, witness examination or expert examination (However, this is permitted only before the first trial date.)” (art. 179 I). This is called the procedure for a request for preservation of evidence and it results in a judge, at the request of the suspect, performing a compulsory measure (art. 179 II). A defense counsel may inspect and copy documents and items of evidence concerning the compulsory measure for preservation of evidence at court (art. 180 I). However, in reality, this procedure is not fully utilized and has been limited to by the Supreme Court which held that “it should be construed that the evidence collected and stored by the investigating authorities is, unless there are special circumstances, not included in the scope of evidence subject to preservation of evidence under article 179 of the Code of Criminal Procedure” (<span class="case_j" id="cj_id_s2005-11-25_ch1-7_01">Sup.Ct. Nov. 25, 2005 (59 Keishū 1831)</span>).</p>
    <h4 id="sigil_toc_id_154"><span class="w_jp">Junkōkoku</span> (Request for Relief)</h4>
    <p class="f-prg">When a suspect and/or their counsel are dissatisfied with a decision of detention (art. 429) or the content of a designation on interviews (art. 430), they may file a <span class="w_jp">junkōkoku</span>, as explained earlier.</p>
    <p>In addition, the CCP permits requests for revocation or alteration of decisions regarding seizure, decisions ordering detention pending expert evaluation, delivered by a judge, and also against dispositions themselves such as those for seizures conducted by investigative authorities. Searches and inspections are however excluded from the statutory object of <span class="w_jp">junkōkoku</span> since these are short term dispositions which lack continuous disadvantageous effects and thus there is little practical benefit in including them.</p>
    <p>In 2015, <span class="w_jp">junkōkoku</span> based on article 429 were filed for approx. 10,000 suspects, and those based on article 430 were filed for 153 suspects. Approx. 2,000 of those involving article 429 were successful in obtaining revocation or alteration, while 15 of those involving article 430 cases were successful.</p>
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