Early Release vs Bail
One of the most common questions we receive from foreigners who have been arrested or detained, and from their families is, "When can I(they) be released on bail?" It is a completely understandable question, as the bail system is a widely known characteristic of many Western jurisdictions and in many countries bail can be granted exceedingly quickly. Unfortunately, the reality in Japan is a little more complex, and requires some detailed explanation.
Firstly, the simple answer is that you can only apply for bail after you have been indicted (charged) for a crime. In Japan, this may take up to 23 days after your arrest, or even longer in some cases, and there is no possibility of bail during this period before indictment. However, with the help and support of a good attorney, early release from police custody is possible in certain circumstances. To understand the differences between early release and bail, as well as when and how you might be able to obtain them, you first need to know a little basic information about the system of arrest and detention in Japan.
In Japan there are two stages of criminal proceedings, the first is the ‘investigation’ stage and the second is the ‘trial’ stage. The investigation phase is a period of time for the police and the prosecutor to investigate the case, at the end of which the prosecutor will decide whether to bring the suspect to trial or not, that is, whether to prosecute/indict someone for the crime(s) they were arrested for. The maximum period of time a suspect can be physically detained before the prosecutor decides whether to charge a person in a given case is 23 days. However, if there are multiple potential crimes committed in a single incident (shoplifting from different stores for example) the suspect may be re-arrested multiple times, once for each suspected crime, each time for a potential maximum of 23 days.
What shocks many Westerners is that, during this period, there is no ‘bail’ system. This makes sense from the point of view of the authorities, as the object of the investigation stage is essentially to give the police or prosecutor the opportunity to obtain a confession from the suspect, or present evidence or statements in the best possible light for them, and keeping the suspect physically detained and isolated is obviously to their advantage in that regard.
The second stage of the criminal proceedings is known as the ‘trial’ stage, which is the period after you have been officially charged with a crime, and before your trial begins. During this period a more traditional bail system is in place in Japan, although it presents its own unique challenges, particularly for foreigners, and will be the subject of Part 2 of this article.
Initial Detention and Work to Obtain Early Release
So, if bail is unavailable during this 23-day (or longer) investigation stage, how can a suspect be released earlier? The answer, as mentioned, is dependent on the specific circumstances of the crime, the individual being detained, and the efforts of your lawyer, and is detailed in the rest of this article. While explaining the typical flow of an investigation stage proceedings, the various potential avenues for early release will be explored and described.
First, when a suspect is arrested, they will normally be detained at a police station. They must then be taken to the public prosecutor's office within 48 hours, where they will be interviewed by the prosecutor. Based on the details of the case received from the police and this interview, the prosecutor will determine whether further physical restraint (detention) is necessary for the suspect, and will ask a judge to grant a detention warrant. This detention will then be for a period of up to 10 days from the time the detention request was made by the prosecutor. The prosecutor will decide if they will ask the judge to grant detention based on two main criteria. Officially, these are as follows:
1. Is there a risk of concealing evidence related to the alleged crime?
2. Is there a risk of escape?
They may also consider what detrimental effect detention will have on the individual, for example what effect absence from work or family will have on the detainee, weighed against the need for detention.
Unfortunately, criteria one and two especially have a wide scope of interpretation and, in practice, detention is usually granted, especially if the suspect is not admitting the charge. The prosecutors routinely surmise that if you are denying the charge against you, then there is a high risk that you will attempt to conceal evidence of your guilt, and that if you are a tourist, or even a foreign national residing in Japan, then you are at risk of fleeing (returning to your home country to avoid the charges).
So, what can be done to avoid detention at this stage?
The important point is to prepare materials that can persuade the prosecutor that there is no risk of concealment of evidence of guilt or of escape, and, through your lawyer, to make a petition to this effect through negotiation and presenting documents and other evidence.
In can be difficult to convince the prosecutor that there is no risk of concealment of incriminating evidence, however, for example, if the suspect is not disputing the case, it could be advisable to plead guilty, and if there are victims of the suspected crime, it is sensible to promptly negotiate a ‘settlement’ (reach an agreement with the opposing party over compensation, usually through the payment of a certain sum of money) mediated by your lawyer. It is important to note that we strongly recommend that you consult thoroughly with your lawyer beforehand about exactly what, or whether, to disclose information to the police and/or prosecutor. This is because once you speak to an investigative agency or sign a statement perhaps before clarifying events in your mind, there is a possibility that that information will later be used detrimentally as evidence against you.
For the risk of escape, it is important to secure a guarantor, that is, someone who will take responsibility for watching over the suspect (the person must be a long-term resident of Japan) at all stages of proceedings. In addition, it is important to secure a stable place of residence. This will unfortunately be very difficult for people who are not already residents of Japan, although, even for residents, the best option would be physically staying in the home of the guarantor.
For consideration of the detrimental effect on the individual, in addition to the two above approaches, your lawyer may make appeals to the prosecutor or judge based on the minor nature of the crime (if applicable), written testimony from your family or boss detailing the negative effects your detention would have for your work or home environment, and how much of an upstanding and trustworthy person you are in your normal life. It is worth noting that in order for this to be effective, the authorities will have to be persuaded on the other two points as well; simply being an essential member of a team at work will have little effect on its own.
Timing of Early Release
The aforementioned tactics can be implemented, when requesting your release, at various times throughout the investigation process, at each of these stages a timely intervention by your lawyer, with the right supporting documents, could make all the difference to being released early or spending the whole investigation stage in detention.
(1) Immediately following arrest
If you are able to secure the services of a lawyer right away, for example, if you already have a lawyer who you know, and are happy for them to represent you, then you can begin the petition to the prosecutor before he has requested your detention. This is advantageous as it might be easier to persuade the prosecutor before he has already made the decision once to detain you, and you will be able to leave detention as soon as possible. For example, for a simple case of theft, your lawyer could settle with the victim of the theft, prepare a statement of remorse from you, secure a guarantor, and finally submit a written opinion letter to the prosecutor stating that you will not dispute the facts of the case, therefore there is no risk of concealment of evidence, and that the guarantor will promise to supervise you closely, reducing the risk of you fleeing, and that therefore there is no need for the prosecutor to request detention. If you have a family member in Japan, you can increase your chances of being released further by submitting a pledge that your family will act as your guarantor, as family ties have a lot of weight here.
(2) After a detention request has been made
If the suspect fails to persuade the prosecutor or fails to appoint a lawyer in time and the prosecutor requests detention to the judge, your lawyer may negotiate with the court to reject the request for detention by submitting a written opinion that the request for detention should not be granted. There is usually only a short window in between the prosecutor requesting detention and the judge reviewing the request, so speed is of the essence. As before, hiring an attorney as quickly as possible is essential. The same methods can be used to persuade the judge to reject the detention request as to persuade the prosecutor to not request detention in the first place.
(3) After a judge decides to detain the suspect
Even if a judge unfortunately decides to detain you, you can subsequently appeal the decision (quasi-appeal) or request to the judge cancellation of detention on the grounds that the circumstances have changed, for example, by reaching a settlement with the opposing party or securing the promise of a guarantor. For example, in the case of theft or assault, even if a settlement cannot be reached in time before the detention decision, it may be possible to shorten the 10-day detention period by quickly concluding a settlement afterwards.
(4) Activities to prevent the extension of detention
Unfortunately, even if the revocation of the detention decision is not successful, there are measures to prevent the detention from being extended for another 10 days after the initial period of detention of 10 days. In most cases the prosecutor will usually request an extension of detention to the court, once the initial period has expired. If the case is complex or the facts of the case are being disputed, (you are committed to fighting the charge) it can be extremely difficult to prevent the extension of detention, but where the simple facts of the case are not in dispute and you are trying to secure a settlement for example, it may be possible to prevent the extension by negotiating with the prosecutor not to request extension or by negotiating with the court (judge) not to grant an extension of the detention using some or all of the above mentioned methods.
As you are now hopefully aware, gaining early release from detention can be a complex matter, even for simple uncontested cases, and can be exceedingly difficult, verging on the impossible, for contested or serious (such as drugs) cases. The system in Japan of detention before indictment, and for potentially significant periods of time, can be shocking and cause huge distress. However, timely intervention by your lawyer, and diligent work on their part, can help you to achieve early release, and reduce the enormous impact that detention can have on your life, work and loved ones. The next article will deal with the options you have for bail, if you are unfortunate enough to be indicted for a crime here in Japan following the investigation stage.
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