Up to 23 days in police custody
Detainees can be held under the direct police management for up to 23 days before formal charges are laid. Ninety-seven percent of requests for arrest warrants are granted, and suspects can then be held in police custody for up to 72 hours without charge or trial. During that time, they do not necessarily have access to a lawyer. State-appointed lawyers are only granted, after the first three days in detention, in the case of serious crimes that could lead to life imprisonment or the death sentence (this system was set up very recently, in October 2006). If the police deem 72 hours to be insufficient, they can request ten-day extensions up to two times. Over 99% of these requests are granted.
If an extension is granted, the detainee should be transferred from police custody to a state detention center, managed by the Ministry of Justice. However, due to a 'temporary' measure established in 1908 known as the 'substitute prison system,' the detainee can continue to be kept in direct police custody. Over the past 98 years, this measure has continued to be used, and is now up for codification before the Diet as a standard measure. 'Temporary' or otherwise, it allows police to hold a suspect without access to a state-appointed public defendant for up to 23 days.
If the detainee is originally apprehended on two charges, the charges can be dealt with separately, such that this entire process is repeated – the detainee can be held in police custody for up to 46 days. If arrested on even more charges, this process can be repeated the equivalent number of times.
Forcible extraction of 'confessions'
Keeping the detainee in direct custody makes interrogation considerably easier for the police. In police custody, lawyers cannot be present, and the interrogation cannot be videotaped or tape-recorded. There is no legal limitation to the length of the interrogation sessions, nor a law stipulating that matters raised during interrogation have to be related to the charges made on arrest. During these sessions, 'confessions' are not actually written or dictated by the detainee; rather, they are scripted by the police and the detainee is simply asked to agree to the final statement.
The court's disproportionate reliance on the 'confession'
The Japanese court system relies heavily on 'confessions' generated in this process, disregarding other evidence if the person has 'confessed' to the crime.
Nondisclosure of evidence: the prosecution has the upper hand
The State, which carries out the investigation and assembles evidence, is not required by law to release the entirety of that evidence to the defense team. Japanese law only requires that evidence used in court by the prosecution be disclosed to the defense. All other evidence can be withheld. The public prosecutor's office maintains that the nondisclosure of evidence is necessary to protect the privacy of people involved in the investigation, and that full release of evidence to the defense might impede the effectiveness of further investigation of the case. From the outset of any trial in Japan, there is a power imbalance between the prosecution and the defense that privileges the prosecution and prevents the defense from doing its job to the best possible extent.
The International Covenant on Civil and Political Rights guarantees the right to have adequate time and facilities for the preparation of defense. Article 14 (3)(b) of the Covenant guarantees that legal representatives of the defendant should have access to all relevant material and evidence. In this regard, the Sayama Case is but one blatant example of how Japan does not conform to international human rights standards.
The Sayama Case
What is described above is exactly what happened to Ishikawa. He was held in police custody for 47 days prior to his trial and subjected to 16 and 17-hour interrogation sessions that were not recorded in any way, and where no legal aid was present. The confessions that were generated during this time were written by the police and accepted by Ishikawa, who was restrained in handcuffs the entire time.
A large amount of evidence remains undisclosed in the Sayama Case. The defense has stated that they are willing to have sensitive data in all documents blacked-out to protect the privacy of concerned parties, and that they would be willing to examine this evidence only in the prosecutor's office. Despite this offer, the prosecution is adamant in its refusal to release all the evidence they have pertaining to the case. They even refuse to release a list of the types of evidence they hold.
All previous acquittals of detainees in Japan have succeeded by questioning the veracity of forced confessions and demanding the release of undisclosed evidence. The criminal justice system makes it extremely easy for people to be tried and convicted of crimes that they did not commit. With rising xenophobia and racism in Japan post-September 11, and with the accompanying 'war on terror,' which has intensified the vilification of foreigners and minority groups, it has become increasingly imperative that this system be re-examined and overhauled. The structure is in place to allow false convictions based on profiling to occur with great frequency. In order to prevent this, the Japanese criminal justice system must change.
