One could argue based on the conviction rate of over 99% that the Japanese justice system is one of the most effective in the world. In fact, the system has its quirks and flaws, which we will touch on in this article. As a foreigner in Japan, it is especially important to be aware of the way the justice system might affect you during your stay.
There are many anecdotes about foreigners being treated unfairly by Japanese police. While undoubtedly some of these are true (after all, every country has some element of corruption) much of this so-called unfair treatment can be attributed to the dramatic differences in the Japanese law and justice system when compared to Western countries. A foreigner may be shocked at how strictly they are treated under Japanese law, but this is not necessarily because they are being discriminated against – it is because of the way the system works.
When one has a good understanding of Japanese law, the odds of getting into any sort of tricky situation with Japanese police are dramatically reduced. In this article, we will go into detail on some aspects of the Japanese justice system that can catch foreigners off guard during a trip to Japan.
Differences in laws
There are many minor offenses under Western law that would lead to being let off with a warning. Take, for example, smoking a small amount of marijuana. If it was your first time being caught for personal possession of a Class C drug in your home country, it is very unlikely that you would see the inside of a cell. Likewise, if you were caught shoplifting a candy bar, you would likely escape with a stern talking-to from store security, or at worst an embarrassing conversation with the police.
In Japan, the law comes down heavily on so-called minor crimes – as a foreigner, you are more likely than a local to be arrested and detained for many of these things, and others like them (more on the reasons behind that later).
There are also laws that you genuinely might not realize you were breaking. Certain Western prescription medicines are illegal in Japan, and there have been incidents of foreigners being arrested after receiving a package from home containing the Adderall or Valium that their doctor prescribed them.
Differences in justice system
Under the Japanese justice system, a person who is arrested is held without bail for up to 72 hours. Within these 72 hours, the person is questioned about the crime they are said to have committed. There is no option of bail during this time – even if you are the richest tourist in Japan, you will stay behind bars for your 72 hours. This can be a shock to the system for foreigners, who may believe their rights are being violated by not being offered bail.
After your 72 hours is up, the police force can apply for you to be detained for a further ten days, and can then apply for this to be extended to another ten days when this is up. All in all, you could spend 23 days in detention before your trial is heard. This time limit is per crime, rather than per person – so if you are arrested for having a bar fight while under the influence of cocaine, you could conceivably serve 66 days before your trial. Some people are not detained in the run-up to the trial, at the discretion of the police force. If you are arrested in Japan as a foreigner (ie someone without a fixed residence) you are considered a flight risk, and so it is extremely likely that you will be detained for the full period.
The interrogation process in Japan is different from many Western countries. For one thing, your lawyer does not attend the interviews with you, and interviews are lengthy and extremely repetitive. The ethos of interrogation is also different – in many Western systems, the phrase “innocent until proven guilty” applies, and individuals can choose to be silent or decline to comment during interviews without consequence. The ethos in Japan is more “guilty until proven innocent”, and silence or refusal to answer can be taken as an indication of guilt.
Being intensely questioned on your own for 23 days can lead to many false confessions, known as hostage justice. Many argue that it is better to make a false confession to speed up the process – but your lawyer will advise you about this if you do find yourself in this unfortunate situation.
Following your period of detainment, you will go through the trial period which generally lasts approximately a month. You will then serve your sentence if convicted of a crime. Crimes that one generally wouldn’t serve time for in Western countries often do carry a jail sentence in Japan – there is a cultural push towards “making an example” of people to deter others from repeating the crime.
You are entitled to legal representation in Japan, and it will be provided to you for free – you should request this upon your arrest. Again, your lawyer will not be present for questioning – but can advise you on how to approach the interrogations.
All of these differences can lead foreigners to feel that they are being discriminated against or taken advantage of by the Japanese police. This is in fact the system for everyone in Japan – though it may seem unfair when compared to your home country, you are not being singled out or treated badly because of your nationality.
Language barrier issues
Language barrier issues can certainly come into play for foreigners when dealing with the police in Japan. Take, for example, if you got into a road traffic accident with a Japanese person and the police attended the scene – the Japanese person would be able to explain their side of the story, while you would not. This can naturally lead to things playing in favor of the party who can effectively communicate with the police. Even if you do have some basic Japanese, there are so many subtleties in the different forms of the language that you could find yourself addressing the police officers in too casual a manner.
If you do find yourself in a situation where you are arrested, you will be provided with an interpreter to help you understand the questions you are being asked. Of course, this can pose issues insofar as the tone and nuances of the Japanese language being lost in translation.
If your family visit you while you are being detained, the police may object to you communicating in languages other than Japanese – the reason being the suspicion that you might be discussing your case inappropriately.
These language barrier issues can lead foreigners to the perception that they are being discriminated against by the police in Japan.
You must serve a minimum of one-third of your jail sentence in Japan. If your visa expires while serving your jail sentence, you may be deported back to your home country. If this is your situation, you will be detained in the immigration office until a suitable flight can bring you home to serve the remainder of your sentence. If you have money to buy your own flight, the process can be sped up considerably at this point.
The justice system in your own country may choose to suspend the rest of your sentence depending on the severity of your crime. In this way, one could argue that foreigners have an advantage within the Japanese justice system.
On a more day to day basis, foreigners are often surprised to be stopped by police when out and about. Police may ask you to show them your ID and quiz you on what you’re doing without apparent cause. The police are within their rights to do this under the Police Duties Execution Act 1948. You should carry your ID on you at all times when in Japan for this reason, and should answer their questions when asked. If asked to open your bag for searching, you should comply.
Frisking is a grey area under this law – technically, you are not obligated to allow yourself to be frisked, but it does occasionally happen. Anecdotally, it does seem that foreigners are approached more often than locals for shokumo shitsumon – but be aware that the police can select anyone for this.
Like so many other aspects of life in Japan, the justice system is unlike anywhere else, and falling in line with it makes your daily life so much easier. Be aware that the hand of the law is harsh when you break guidelines, but not necessarily because you’re a foreigner.