2020: The Reality of the “Right to Counsel”

Source:  The Asia-Pacific Journal | Japan Focus Volume 18 | Issue 13 | Number 4 | Article ID 5412 | Jun 25, 2020
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The Reality of the “Right to Counsel” in Japan and the Lawyers’ Campaign to Change It

Makoto Ibusuki, Lawrence Repeta

The arrest and detention of Carlos Ghosn attracted global attention to Japan’s treatment of criminal suspects, often described as “hostage justice.”1 Police and prosecutors easily obtain lengthy detentions of criminal suspects prior to filing formal charges during which time attorneys are prohibited from attending interrogations of their clients. Most suspects confess during these interrogations. Although these conditions remain largely in place, the situation is not static. In fact, over the past decade or so, the number of suspects  released from detention who have not confessed has significantly increased. This result has been achieved even though basic provisions of criminal procedure laws have not changed. Instead, earlier access to defense counsel and more proactive work by counsel in challenging prosecutors’ detention requests have made the difference. Today attorneys file more appeals to detention requests and courts grant those requests more frequently, meaning that more suspects are released from custody before trial. In some cases, prosecutors drop charges altogether.

The attorneys’ campaign is having a meaningful effect on the lives of many individuals caught up in Japan’s criminal justice system. Attorneys say that suspects are often detained on relatively trivial charges and detention serves no real purpose.2 In such cases, the most feared penalty is not issued by a court, but by the suspects’ employers. Lengthy detentions can lead to loss of jobs, causing serious damage to the lives of suspects and their families.3 The attorneys who lead this campaign say their goal is “ishiki kaikaku,” a revolution in the consciousness of Japan’s judges. This article describes the evolution in access to legal counsel during the pretrial interrogation stage and results achieved so far by the attorneys’ efforts to fight the heavy use of pretrial detention and the prohibition on attorney presence in police interrogation rooms.

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