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Crime of Preparation of Acts of Terrorism and Other Organized Crimes

Crime of Preparation of Acts of Terrorism and Other Organized Crimes

This will clearly explain the Crime of Preparation of Acts of Terrorism and Other Organized Crimes.
1. Necessity of concluding UNTOC

The introduction of the Crime of Preparation of Acts of Terrorism and Other Organized Crimes enabled Japan to sign the United Nations Convention against Transnational Organized Crime (UNTOC) in July 2017.

 The Crime of Preparation of Acts of Terrorism and Other Organized Crimes was established to conclude UNTOC.
 The purpose of UNTOC is to prevent and fight against acts of terrorism and other organized crimes. There are 190 parties to UNTOC as of July 2020, including Japan.
 By introducing the Crime of Preparation of Acts of Terrorism and Other Organized Crimes and accepting the UNTOC, Japan has strengthened the international effort against organized crime.
 
 Since joining the UNTOC program, Japan has been in a better position to handle the extradition of criminals. People who have committed crimes in this country and fled to other countries can be repatriated to Japan, while members of terrorist organizations detained in Japan can be sent back to their countries of origin (extradition). At the same time, testimony and evidence necessary for investigation and trials can be exchanged directly between the relevant countries’ investigative/justice authorities without going through diplomatic channels, enabling Japan to obtain evidence from other countries faster and efficiently (investigative cooperation). Another benefit is that collaboration with international initiatives in gathering intelligence on terrorists and other criminal organizations can be improved (intelligence sharing).

2. Necessity of the “Crime of Preparation of Acts of Terrorism and Other Organized Crimes”

Document 1


1) The UNTOC could not be concluded without creating the Crime of Preparation of Acts of Terrorism and Other Organized Crimes

 Article 5 of UNTOC obliges parties to make it possible to punish the “agreement to commit serious crimes” or “participation in the activities of organized criminal groups” as a crime separate from attempted crimes and completed crimes in order to prevent organized crimes including terrorism. A state cannot become a party to UNTOC unless these obligations are fulfilled.
 However, before the introduction of the Crime of Preparation of Acts of Terrorism and Other Organized Crimes, as shown in Document 1, the penalization of only a small number of crimes, such as insurrection and instigation of foreign aggression for the crimes of conspiracy and plot, is insufficient to satisfy the convention’s requirements for the penalization of the crime of agreement.
 For example, the crimes of terrorism targeting infrastructure such as electricity, water, and gas facilities, business interruptions such as systematic damage to computers using cyberspace, organized fraud such as bank transfer fraud, and human trafficking by human trafficking organizations could not be punished before these crimes were commenced.
 Therefore, in order for Japan to conclude the UNTOC, it was necessary to establish the “Crime of Preparation of Acts of Terrorism and Other Organized Crimes” that would allow punishment at the planning and preparation stages.

2) Examples of cases that constitute the Crime of Preparation of Acts of Terrorism and Other Organized Crimes

 As specified in Document 1, before the introduction of the Crime of Preparation of Acts of Terrorism and Other Organized Crimes, gaps in penalization existed in the sense that, even if a person was found to have planned to commit a serious crime, such person could not be arrested or punished for:
- cases without an act of attempt or preparation, until the crime is committed
- cases with an act of attempt but without an act of preparation, until the commission of the crime is commenced
- cases with both an act of attempt and preparation, until a preparatory action deemed to be “objectively significantly dangerous”* was committed.
 Based on the Crime of Preparation of Acts of Terrorism and Other Organized Crimes, as specified in the following examples, it is now possible to apprehend and prosecute criminals prior to the point at which criminal acts are committed.
 A terrorist group planned to manufacture deadly chemical substances, planned the mass-murder of civilians, and acquired a part of the necessary ingredients for such substances.
 A terrorist group planned to hijack several planes and use them to attack skyscrapers, and for example, booked tickets for the planes.
 A terrorist group planned to develop a computer virus and planned to utilize the computer virus to cause malfunctions in the electronic control systems of electric, gas, and water companies across the nation to paralyze large cities’ vital infrastructure systems and cause panic, and started to develop such computer virus.
 *According to the Tokyo High Court’s adjudication in 1967, “preparation” is defined as “making preparations to an extent that is sufficient to have a vital substantive meaning and have a substantial danger acknowledged objectively, when looking from the perspective of establishment of constituent elements of a crime (including the commencement of the commission).”

3. Even though the Crime of Preparation of Acts of Terrorism and Other Organized Crimes is new, there will be no changes to the lives of the general public

1) The general public will not be punished under the Crime of Preparation of Acts of Terrorism and Other Organized Crimes

 The Crime of Preparation of Acts of Terrorism and Other Organized Crimes requires,
  (1) the involvement of “organized criminal groups”;
  (2) “plans” for a serious crime;
  (3) “acts of preparation for the implementation” of planned crimes (such as an arrangement of funds to execute crimes).
These are strict requirements that must be met.
 An “organized criminal group" is limited to an organization that aims to commit serious crimes, and considering the criminal situation inside and outside Japan, such groups are limited to those aiming to commit illegal acts such as terrorist groups, gangs and drug trafficking organizations.
 In addition, "intent" is necessary for all three requirements, and if even one of the requirements is lacking (including (1) involvement of "organized criminal groups", (2) planning for a specific and realistic plan to execute a crime with divided roles based on instructions and orders, and (3) carrying out acts in preparation based on the plan), the Crime of Preparation of Acts of Terrorism and Other Organized Crimes is not established. Therefore, ordinary people with no connections to “organized criminal groups" will not be punished under the Crime of Preparation of Acts of Terrorism and Other Organized Crimes.
 Also, it is not possible to start an investigation unless there are specific allegations (suspicion) for all three requirements, and such allegations against members of the general public with no relationship to organized criminal groups would be extremely unlikely.
 Therefore, the general public will not be subject to investigations under the Crime of Preparation of Acts of Terrorism and Other Organized Crimes.

2) The Crime of Preparation of Acts of Terrorism and Other Organized Crimes does not punish people for their thoughts

 The Crime of Preparation of Acts of Terrorism and Other Organized Crimes is established only when, in addition to a “plan” for committing a crime, “acts of preparation for implementation” based on the plan are conducted for crimes with involvement of organized criminal groups.
 In order to dispel concerns and fears that "thoughts will be penalized”, the act of “planning” alone does not establish a crime, and an act of preparation to implement the planned crime (acts of preparation for implementation) is necessary, in addition to the act of planning, to become subject to punishment.
 Thus, the Crime of Preparation of Acts of Terrorism and Other Organized Crimes punishes “acts” that are “acts of planning” and “acts of preparation for implementation”, and it does not punish people for their thoughts.

3) Crimes targeted by the Crime of Preparation of Acts of Terrorism and Other Organized Crimes were selected to ensure compliance with UNTOC

 In order to fulfill the obligation of criminalization defined by the UNTOC, it was necessary to include all serious crimes* committed with the “involvement of organized criminal groups” as targets of the Crime of Preparation of Acts of Terrorism and Other Organized Crimes.
 On the basis of whether it is realistically foreseeable that organized criminal groups, including terrorist groups, would plan to commit certain crimes, 277 specific crimes were selected, including the newly established crime of bribery of witnesses, etc.
 * Under UNTOC, "serious crimes" are defined as crimes punishable by imprisonment for not less than 4 years as a maximum term.

4) Japan will not become a surveillance state or informant society.

 With the amendment of the law to introduce the Crime of Preparation of Acts of Terrorism and Other Organized Crimes, investigation methods will not change at all. This is because this amendment of law is a revision of "substantive law” (penal provisions) that defines what actions are criminalized and what punishments are imposed therefor; "procedural law" such as the Code of Criminal Procedure, which stipulates how criminal investigations are to be conducted, has not been revised in connection with the creation of the Crime of Preparation of Acts of Terrorism and Other Organized Crimes.
 Interception of e-mail and SNS communication falls under "wiretapping" defined in the Act on Wiretapping for Criminal Investigation, but the Crime of Preparation of Acts of Terrorism and Other Organized Crimes is not a crime subject to wiretapping; under the Act on Wiretapping for Criminal Investigation, wiretapping cannot be performed in investigations of the Crime of Preparation of Acts of Terrorism and Other Organized Crimes.
 Therefore, the introduction of the Crime of Preparation of Acts of Terrorism and Other Organized Crimes will not turn Japan into a “surveillance state” with law enforcement agencies monitoring the general public.
 Furthermore, there is a provision to reduce or exempt the punishment of persons who have surrendered themselves, but the groups subject to the crime of preparation for terrorism, etc. are limited to "organized criminal groups". Because the overwhelming majority of the members of the general public has nothing to do with organized crime, this provision will not result in an informant society in which the general public informs on each other.

5) Abusive/arbitrary operations by investigative agencies is not possible

 The Crime of Preparation of Acts of Terrorism and Other Organized Crimes consists of three strict requirements: (1) involvement of an "organized criminal group", (2) “plans” to commit serious crimes, and (3) “preparatory acts for implementation” of the planned crimes. These requirements are specified in the text.
 In addition, investigations into the Crime of Preparation of Acts of Terrorism and Other Organized Crimes will be done according to the provisions of the Code of Criminal Procedure.
 The circumstances under which investigations can be conducted are determined by "substantive law” (penal provisions) which sets forth the conditions for the Crime of Preparation of Acts of Terrorism and Other Organized Crimes, and concrete suspicion of requirements (1) to (3) are necessary. Investigations cannot be conducted without concrete suspicion concerning the three strict requirements. In addition, when conducting investigations into the Crime of Preparation of Acts of Terrorism and Other Organized Crimes, a provision has been established that sufficient consideration must be given to ensure appropriateness of the investigation.
 Furthermore, investigations are subject to review by the courts.  Therefore, the Japanese criminal justice system imposes sufficient checks on law enforcement authorities to limit and eliminate opportunities for abuse and arbitrary operations.

6) The Crime of Preparation of Acts of Terrorism and Other Organized Crimes fully considers human rights

 Of the 34 countries other than Japan that were members of the OECD (all of which are parties to UNTOC) at the time the Crime of Preparation of Acts of Terrorism and Other Organized Crimes was introduced, there was no other country that had adopted both requirements that (1) “organized criminal groups are involved” and that there are (2) “acts to advance the contents of the agreement” (“acts of preparation for implementation” in Japan) in addition to the agreement for crime execution like Japan, and the Crime of Preparation of Acts of Terrorism and Other Organized Crimes pay due consideration to human rights on an international level.

Scope of the Crime of Preparation of Acts of Terrorism and Other Organized Crimes

The scope of the Crime of Preparation of Acts of Terrorism and Other Organized Crimes is clear and limited

Conditions for the Crime of Preparation of Acts of Terrorism and Other Organized Crimes

 (1) Involvement of “organized criminal groups”
 (2) “Planning” by two or more people to commit a crime
 (3) Conducting “acts to prepare for implementation” based on the plan

→ Only when all three conditions are met is the Crime of Preparation of Acts of Terrorism and Other Organized Crimes established.
1) Participation of “organized criminal groups”

All of the following need to be met (e.g., terrorist groups, gangs, drug trafficking organizations, bank transfer fraud groups)

(a) continuous groups with many people
  (Not applicable to a very small number of people gathering or only a large number of people temporarily gathered)
(b) possession of an organization for crime execution (Note 1)
  (Note 1: A group of people who act according to a predetermined assignment of duties based on instructions and orders)
(c) gathering for the purpose of executing serious crimes (crimes of purpose) (Note 2)
  (For example, a group is considered not to gather if the crime will not be committed)
  (Note 2: Crimes of purpose are listed separately in the Act on Punishment of Organized Crimes and Control of Crime Proceeds Annex No. 3)

The following cases do not satisfy element (1) and will not be punished

× If several company employees plan to hurt their company boss in a tavern
→ A group of office workers does not satisfy element (1) (a) or (b)

× When friends plan to shoplift
→ A group of friends does not satisfy element (1) (a) or (b)

× When a company plans to evade corporate taxes and prepares books for tax evasion
→ A company doing legitimate business does not satisfy element (1) (c)

2) “Planning” by two or more people to execute a crime

It is necessary to satisfy all of the following

(d)  Specific crimes (target crimes) (Note 3) are to be executed "as a group activity"
  (Note 3: Targeted crimes are listed individually in the Act on Punishment of Organized Crimes and Control of Crime Proceeds Annex No. 4)

(e) concrete and realistic agreement

The following cases do not satisfy element (2) and will not be punished

× If some people agree to commit crimes for personal benefit
→ It cannot be said to be “a group activity”, so (d) is not satisfied

× When it is agreed to destroy another person’s automobile
→ Property damage is not a subject crime, so (d) is not met.

× If it is agreed to "perform some crime to get money quickly"
→ The plan is not concrete and does not satisfy (e)

3) Conducting “acts to prepare for implementation” based on plans

It is necessary to satisfy all of the following:

   (f) acts different from the plan
   (g) acts based on the plan
   (h) acts to advance the plan


 The following cases do not satisfy element (3) and will not be punished

× If the contents of the plan are written down after planning
→ It cannot be said that they are acts different from the plan and do not satisfy (f)

× If it was planned to poison someone, and although it was not expected to use a knife, one of the planners purchased a knife
→ The purchase of the knife is not based on the plan, so it does not satisfy element (3) (g)

× If a meal is eaten after planning because of hunger
→ It cannot be said that it is an action to advance the plan, so it does not satisfy element (3) (h)

Concluding the UNTOC and International Cooperation

1. Japan is a party to UNTOC

 Japan is a party to four UN Conventions, including the Convention against Transnational Organized Crime (UNTOC), which Japan concluded on July 11, 2017, after the establishment of the Crime of Preparation of Acts of Terrorism and Other Organized Crimes. (These conventions came into effect on August 10, 2017. *Please click here to see the press release by the Ministry of Foreign Affairs).
 Mr. Yuri Fedotov, Executive Director of the United Nations Office on Drugs and Crime (UNODC), congratulated Japan for concluding the UNTOC (Please click here to see the website of the Ministry of Foreign Affairs).
 Here, we will explain the benefits of becoming a party to UNTOC with regard to international investigations and the extradition of fugitives.

2. Requests for mutual legal assistance can be conducted smoothly Relationship between UNTOC and requests for mutual legal assistance







1) Before becoming a party to UNTOC

In order to request assistance from another country (e.g., obtain evidence and testimony) that does not have a mutual legal assistance treaties with Japan, Japan’s investigative authorities had to ask the Ministry of Foreign Affairs to contact their diplomatic counterpart in that country who, in turn, would forward the assistance request to the investigative authority of that country. But using such diplomatic channels, it takes a long time to receive the requested assistance.

2) After becoming a party to UNTOC

After becoming a party to UNTOC, Japan can directly communicate with any of the other 189 member states of UNTOC via their “central authorities” to request mutual legal assistance related to international organized crimes without having to go through diplomatic channels.
 “Central authorities” are the contact points designated under  UNTOC for receiving requests for mutual legal assistance related to international organized crime. In most cases, investigative authorities or legal authorities are designated as “central authorities.” In Japan, this position will be led by the Minister of Justice or the Director of the International Affairs Division of the Criminal Affairs Bureau at the Ministry of Justice. Such communication via “central authorities” makes it possible to receive the results of requests for mutual legal assistance more quickly and effectively.

3) Other advantages regarding requests for mutual legal assistance based on UNTOC

Various rules regarding mutual legal assistance are provided under UNTOC. For example, when a member state which received a mutual legal assistance request denies the execution of the request, the state has the obligation to clarify the reason to the requesting state. Such provisions are considered to make it more difficult for member states to deny requests for mutual legal assistance. This would have a positive outcome that Japan will have a better chance of obtaining the results of such requests (in the form of evidence and testimony).

4) Japan can also make more significant contributions toward international cooperation

As a UNTOC member country, Japan can respond faster and more efficiently to mutual legal assistance requests on transnational organized crime from other member countries, enabling further contributions to international cooperation.

3. Extradition of fugitives can also be executed smoothly



1) Before becoming a party to UNTOC

Japan experienced the following issues when requesting the extradition of fugitives from foreign countries.
 
  (1) Countries with a legal system that does not allow extradition without an applicable extradition treaty with the requesting country
   → Extradition was not possible.
  (2) Countries with a legal system that allows extradition without an applicable extradition treaty
   → Extradition requests are possible based on the comity of nations (custom of the international community).
     However, since the requested country has no obligation to extradite, extradition may take a very long time.

2) After becoming a party to UNTOC

The conclusion of the UNTOC has changed the following points regarding requests for extradition of fugitives in relation to international organized crime.

  (1) Countries with the legal system described in (1) above that recognize UNTOC as the effective extradition treaty (Canada, Netherlands, etc.)
   →It is possible to request the extradition of fugitives based on the UNTOC.
  (2) Countries with the legal system described in (2) above (Germany, France, etc.)
   → It is possible to request the extradition of fugitives based on the UNTOC, not merely the comity of nations.

3) Other advantages of extradition requests under UNTOC

The merit of being able to request the extradition of fugitives based on UNTOC is that the requested country has an obligation under international law to make efforts to expedite the process of extradition. In addition, member states that have received requests based on UNTOC are obliged to submit the case to their own prosecution agencies if they refuse the extradition request on the grounds that the fugitive is a national of the state. These also have the merit of eliminating loopholes related to punishment.

4) Japan can also make more significant contributions toward international cooperation

With the legislative amendments enabling Japan to become a party to UNTOC, Japan has a broader scope of international organized crimes for which Japan may extradite fugitives to other member states; thus, we can now contribute to the punishment of fugitives related to an international organized crime.

Related provisions of the United Nations Convention against Transnational Organized Crime (UNTOC)

Related provisions of the United Nations Convention against Transnational Organized Crime (UNTOC)

Article 2. Use of terms 
For the purposes of this Convention:
 (b) “Serious crime” shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty.
 
Article 5. Criminalization of participation in an organized criminal group
  1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:
 (a) Either or both of the following as criminal offences distinct from
those involving the attempt or completion of the criminal activity:
  (i) Agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group;
  (ii) Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in:
    a. Criminal activities of the organized criminal group
    b. Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim.

Provision establishing the Crime of Preparation of Acts of Terrorism and Other Organized Crimes

Act on Punishment of Organized Crimes and Control of Crime Proceeds
 (Planning to commit a serious crime that entails an act of preparation by a terrorism group and other organized criminal groups)
 Article 6-2.

  1. A person who, together with one or more persons, plans to commit an act that constitutes a crime listed in the following items as the work of a terrorist group or other organized criminal groups (meaning a group whose common purpose laying the foundation of its unifying relationship is to commit a crime listed in Annex 3; hereinafter the same shall apply in the following paragraph) and through an organization whose purpose is to bring the said act to fruition, shall be sentenced to the punishment prescribed in each of those items if any person within those who made that plan has conducted an arrangement of fund or articles, preliminary inspection of relevant locations, or other acts of preparation to implement the planned crime in accordance with the aforementioned plan; provided, however, that the person who surrenders him/herself before commencing the crime shall have his or her punishment reduced or shall be exculpated.
    (i) Crimes in Annex 4 that are punishable by the death penalty, life imprisonment with or without work or a sentence of imprisonment with or without work whose maximum term of imprisonment exceeds 10 years Imprisonment with or without work for not more than 5 years
    (ii) Crimes in Annex 4 that are punishable by imprisonment with or without work for not less than 4 years but not more than 10 years
Imprisonment with or without work for not more than 2 years
  2. The provisions of the preceding paragraph shall also apply to two or more persons who planned an act relating to the crimes set forth in each item of the preceding paragraph causing a terrorist group or other organized criminal group to acquire illicit interests, or fulfill the purpose of maintaining or expanding illicit interests of a terrorist group or other organized criminal group, when any of the planners prepares funds or goods or performs preliminary inspection of related locations or other preparatory actions to carry out a crime based on the plan.

* Organizational activities: Activities based on the decision-making of an organization (continuous combination of multiple persons with a common purpose, for which all or part of the actions to achieve purposes or intentions are repeated by the organization), for which the effects or benefits thereof are attributed to the organization (Article 2, Paragraph 1 / Article 3, Paragraph 1)