Supreme Court of Japan > Judicial System in Japan > Questions and Answers on Criminal Procedure
What does arrest mean?
Arrest is a compulsory measure to physically restrain a suspect. There are arrest executed with an arrest warrant issued by a judge and arrest executed without an arrest warrant in such a case where there is no risk of mistaken identity as the crime is presently being committed or has been just committed.
The former type of arrest includes ordinary arrest that is executed after a judge issues an arrest warrant (ordinary arrest warrant), and emergency arrest wherein a suspect is arrested when a serious crime is suspected to have been committed and there is no time to request an arrest warrant, and then a request is filed immediately with a judge to issue an arrest warrant to approve that arrest (emergency arrest warrant).
In 2018, the rate of dismissal and withdrawal among cases where ordinary arrest warrants were requested was 1.46%, and the rate of dismissal among cases where emergency arrest warrants were requested was 0.34%. Refer here for the statistics of the last ten years.(PDF:22KB)
Arrest is made by the police or by the public prosecutor. In the case of arrest by the police, the police must release the suspect unless the police refers the case with the suspect to the public prosecutor (referral to the Public Prosecutors Office) within 48 hours after arrest, in principle, while the public prosecutor who received the case must release the suspect within 24 hours after receiving the suspect and within 72 hours after arrest unless the public prosecutor requests a judge to detain the suspect. In the case of arrest by the public prosecutor, the public prosecutor, unless requesting a judge to detain the suspect, must release the suspect within 48 hours after arrest, in principle. In short, an arrested suspect may be taken into custody for no longer than 72 hours in the case of arrest by the police and for no longer than 48 hours in the case of arrest by the public prosecutor.
What does detention mean?
Detention is a compulsory measure to physically restrain a suspect or the accused for a certain period of time. As for detention of a suspect, when a judge finds that there is probable cause to suspect that the suspect has committed a crime and that the suspect may conceal or destroy evidence or flee, upon a request from the public prosecutor, the judge issues a detention warrant.
In 2018, the rate of dismissal and withdrawal among cases where detention warrants were requested was 5.90%. Refer here for the statistics of the last ten years.(PDF:20KB)
The duration of the detention period is ten days, but a judge may grant an extension of not more than ten days upon a request of the public prosecutor when a judge deems unavoidable circumstances to exist. Furthermore, in an extremely unusual crime case such as an insurrection, another extension of not more than five days is granted.
With regard to the accused, the detention is made when it is necessary to keep the accused in custody to proceed with trial proceedings. The reasons for detention, such as probable cause to suspect that the accused has committed a crime and that the accused may conceal or destroy evidence or flee, are required in the same manner as in the case of detention of a suspect.
The duration of the detention period is two months, and a one-month renewal of the period is granted monthly when the requirement for detention mentioned above is particularly found.
In what cases is bail granted?
The court detains the accused when there is probable cause to suspect that the accused has committed a crime and that the accused may conceal or destroy evidence or flee. However, detention of the accused is aimed at proceeding a trial without obstruction, and if there is alternative means to achieve the same purpose without detention, that would be preferable. Therefore, the Code of Criminal Procedure introduces the bail system under which the accused is to be released in exchange for a certain amount of bail bond, and if the accused released on bail flees during trial proceedings or fails to appear in court despite being summoned, or conceals or destroys evidence, the court may rescind the bail and sequester the bail bond. Bail is granted upon a request or by ex officio.
As detention imposes significant restriction on the accused's physical freedom, the court must grant a request for bail unless there are exceptional circumstances. This is called mandatory bail. However, when the accused is indicted for a serious crime such as murder or arson, or is a habitual offender, or there is probable cause to suspect that the accused may conceal or destroy evidence, or otherwise in cases specified by law, the court rejects a request for bail as an exception to mandatory bail. Even in such cases falling under the exception, nevertheless, the court may grant bail at its discretion depending on the circumstances at each case. This is called discretionary bail.
A request for bail may be filed by the accused him/herself, his/her spouse, parent or other close relative, or the defense counsel, at any time after indictment, before or after the commencement of the trial, and until the judgment becomes final and binding.
The amount of bail bond is set by the court, which examines what amount is appropriate to prevent the accused from fleeing and concealing or destroying evidence in consideration of all of the circumstances of the case, including the seriousness of the crime and the accused's financial conditions and living environment.
The bail bond is basically paid in cash, but may be paid with share certificates or other securities if granted by the court. A part of the bail bond may also be substituted by a written guarantee issued by a guarantor, such as the accused's employer, parent or sibling, in some cases. A person who issued a written guarantee assumes the obligation to pay the amount entered in the written guarantee when the bail is rescinded and the bail bond is sequestered. The bail bond is for ensuring the appearance of the accused.
Therefore, unless the bail is rescinded and the bail bond is sequestered, the paid amount is to be returned to the person who paid it after the trial is concluded irrespective of whether the accused is finally found guilty or not guilty.
In 2018, the rate of bail was 32.1%. Refer here for the statistics of the last ten years.(PDF:18KB) Refer here for a comparison of rate for pleaded guilty cases and pleaded not guilty cases.(PDF:52KB)
What does burden of proof mean?
You may hear the expressions "the principle of presumption of innocence" and "in dubio pro reo." In a criminal trial, the public prosecutor assumes the responsibility to prove the accused's guilt beyond a reasonable doubt. This is the burden of proof. If the public prosecutor fails to prove a fact necessary to find the accused guilty, that fact is considered not to exist and a determination advantageous to the accused must be made. In short, based on “the principle of presumption of innocence”, the court is to render a ruling of not guilty.
How long does it take for a criminal trial to be concluded?
The Constitution of Japan guarantees the accused’s right to a speedy trial. The duration of the trial period in an actual trial depends on the type, complexity and other various circumstances of each case and thus cannot be generalized. However, as the proverb says, "Justice Delayed is Justice Denied," achieving prompt proceedings is naturally a significant goal to be aimed at by those who are engaged in trials.
Accordingly, prior to the first trial date, the court may request a party (the public prosecutor or the defense counsel) to make sufficient preparation, or even between trial dates, the court sometimes requires a party to come to the court and encourages them to make necessary preparations.
In a complicated case or otherwise, if deeming it necessary, the court may undertake a pretrial conference procedure to arrange issues and evidence of the case and draw up a trial plan, which enables the court to conduct a trial systematically and speedily.
Although it is often pointed out that criminal trials in Japan are apt to be prolonged, in reality, judgements are rendered in around three months after indictment in ordinary cases and this is not at all long in comparison with other countries. In addition, when expedited trial proceedings or summary proceedings are adopted, trials are concluded in a very short period of time.
The average duration of the trial period for 2018 was 2.7 months for pleaded guilty cases, 9.2 months for pleaded not guilty cases, and 3.3 months for cases as a whole. Refer here for the statistics of the last ten years.(PDF:49KB)
The Public Offices Election Act provides that for cases involving certain types of election crimes, judgments should be rendered within 100 days from indictment of a case. This is called a 100-day trial and is applied to cases where an elected person him/herself is the accused in the election crime or where the so-called guilt-by-association system is applicable. In these cases, in particular, the parties are strongly requested to offer cooperation for achieving prompt proceedings and a judicial decision.
Ministry of Justice also responds to questions on the Japanese Criminal Justice System.