Getting Assistance from Japan: Non-Treaty Based MLA

Q1. How can a foreign state make an MLA request to Japan?

-         Without an MLAT, a request for assistance is received by the Minister for Foreign Affairs via diplomatic channel. The Minister for Foreign Affairs, after examining the guarantee of reciprocity (see Q3), forwards the request to the Minister of Justice with his/her opinion attached. (Act on International Assistance in Investigation and Other Related Matters (AIAI) Articles 3.1 and 4).  

-         The Minister of Justice, when he/she has found that no legal restrictions on assistance apply and deems it appropriate to honor the request (see Q3), either

a.   orders the relevant Chief Prosecutor to collect the evidence or forwards the request documents to the National Public Safety Commission or  the head of special judicial police authority (e.g.　the Commandant of the Japan Coast Guard) ( in case of the request for the collection of evidence ) (AIAI Article 5.1)

or

b.   forwards the request to the custodian of criminal litigation documents ( in case of the request for the provision of documents) (AIAI Article 5.2).

-        Based on an order by the Chief Prosecutor, the National Public Safety Commission or the head of special judicial police authority, the public prosecutor, police official or special judicial police officer respectively takes necessary measures to collect evidence. 

-         When the Chief Prosecutor, the National Public Safety Commission or the head of other judicial police authorities has completed the collection of the evidence, they promptly forward the evidence obtained with their opinion attached. (AIAI Articles 14.1 and 14.3) In case of the provision of the documents, the custodian of the documents forwards the documents to the Minister of Justice with their opinions attached. (AIAI Article 14.4)

-         Without an MLAT, the Minister of Justice forwards the received evidence/documents to the Minister for Foreign Affairs, who then forwards the evidence/documents to the requesting state via diplomatic channel. (AIAI Article 3.1).

Q2. What Type of assistance can Japan provide?

-         Public Prosecutors, according to Articles 8.1, 8.2, and 10 of AIAI, may:

a.        interview (interrogate) the person concerned

b.       request an expert to give an opinion

c.        conduct a non-compulsory inspection (i.e. examination of place and items)

d.       ask the owner, possessor or custodian of a document or other material to submit it

e.       ask a public office, or a public or private organization to make reports

f.        undertake seizure, search and compulsory inspection (i.e. examination of places and items ) (upon a warrant issued by a judge)

g.       apply to a judge for examination (i.e. testimony) of a witness

-         Public Prosecutors, according to Article 59 of Act on Punishment of Organized Crimes, Control of Crime Proceeds and Other Matters (Anti-Organized Crimes Act: AOCA) may:

h.       execute a finally-binding adjudication of confiscation

i.         execute a finally-binding adjudication of collection of equivalent value (value confiscation)

j.         secure property for the purpose of confiscation or collection of equivalent value (freezing assets for confiscation or value confiscation)

-      Judicial Police Officers, according to AIAI Articles 8.1 and 8.2, may undertake every investigation methods shown above except (g), (h), (i)and(j).

Q3. What are the refusal causes for getting assistance from Japan? (Over View)

-         Under AIAI, the MLA request for obtaining evidence will be refused when it
falls within one of the following circumstances:

(Mandatory Refusal causes)

a.   When there is no guarantee from the requesting state that it will honor the requests of the same sort from Japan (Reciprocity Principle);

b.   When the offense for which assistance is requested is a political offense, or when the request for assistance is deemed to have been made with a view to investigating political offense (see Q4);

c.   When the act constituting the offense for which assistance is requested would not constitute an offense under the laws, regulations or ordinances of Japan were it committed in Japan (Dual Criminality See Q5,6);

d.   With respect to a request for an examination (i.e. testimony) of a witness or a submission of material evidence, when the requesting state does not clearly demonstrate in writing that the evidence is essential to the investigation (Essentiality Q7);

(Discretionary Refusal causes)

e.   The Minister of Justice deems it inappropriate to honor the request (AIAI Article 5).

-         Under AOCL, when the MLA request seeks assistance in confiscation, value confiscation or freezing assets for confiscation or value confiscation, the refusal causes are following:

(Mandatory Refusal causes)

a.   When there is no guarantee from the requesting state that it will honor the requests of the same sort from Japan (Reciprocity Principle);

b.   When the act involving the offense for which assistance is requested would not constitute certain offense provided for in AOCL if committed in Japan (Dual Criminality See Q5,6);

c.   Under the laws and regulations of Japan, penalty may not be imposed for the act involving the offense for which assistance is requested, if committed in Japan;

d.   When any criminal case involving the offense, for which assistance is requested, is pending before a Japanese court, or there is final and binding judgment by a Japanese court for such case;

e.   As for assistance in the execution of a finally-binding adjudication of confiscation or in the securance for the purpose of confiscation, when, if the act involving the offence for which assistance is requested is committed in Japan, the property concerned is not the kind of property in respect of which confiscation or securance of confiscation may be ordered under the laws and regulations of Japan for the offence for which assistance is requested;

h.    As for assistance in the execution of a finally-binding adjudication of collection of equivalent value or in the securance for the purpose of collection of equivalent value, when, if the act involving the offence for which assistance is requested is committed in Japan, such request does not fall under a case for which adjudication of the requested collection of equivalent value or securance of collection of equivalent value may be made under the laws and regulations of Japan for the offence for which assistance is requested;

j.     When it is found that as for assistance in the execution of a finally-binding adjudication of confiscation any person who is reasonably deemed to hold the property concerned or the superficies, hypothec or other right existing on such property, or as for assistance in the execution of a finally-binding adjudication of collection of equivalent value any person against whom the adjudication of collection of equivalent value has been made, was not able to claim such person's right in the proceeding in respect of such adjudication for any reason which may not be attributable to such person;

k.     As for assistance in the preservation for the purpose of confiscation or value confiscation, when there is reasonable ground to suspect that the act involving the offense for which assistance is requested has been committed, except when such request is based on an adjudication of preservation of confiscation or value confiscation made by a judge or a court of the requesting State or when such request is made after the adjudication of confiscation or value confiscation has become final and binding;

(Discretionary Refusal causes)

l.    The Minister of Justice deems it inappropriate to honor the request.

Q4. What is political offense?

-         The Government of Japan understands that the notion of political offense has two categories: so-called pure political offense and relative political offense.
   Relative political offense means the offense where the perpetrator commits ordinary crime upon infringing political order. Government of Japan understands that the notion of political offense prescribed in AIAI basically means pure political offense.
   As for relative political offense, it is difficult to generally decide whether the assistance may be provided or not. Under our case law, we have to examine the specific circumstances of the case and decide how much the conduct has the political nature and how far the political nature surpasses criminal nature.

Q5. What is the difference between dual criminality in LIAI and in AOCA?

-         Dual Criminality in the MLA under AIAI is “Abstract” Dual Criminality and that of AOCA is “Concrete” Dual Criminality. Concrete Dual Criminality requires punishability under the applicable laws of Japan and hence takes into consideration such factors as “self defense,” ”legitimate conduct,” “insanity,” and “lapse of time” when determining whether or not dual criminality requirement is met. Under AIAI dual criminality is examined based solely on whether the act in question is regarded as criminal act in Japan. In other words, Examining such factors as “self-defense,” “legitimate conduct,” “insanity,” and “lapse of time” is not required under AIAI.

Q6. How is dual criminality judged?

-         Dual criminality is judged on the basis of raw facts while leaving aside component of the constituent elements of the offense. By doing so, even offenses not criminalized under the Japanese law, such as conspiracy, can be covered by using the provision on abetting.
   The principle above was stated in Tokyo High Court, on March 30 1989. While that case was related to extradition, a similar flexible interpretation is applied to dual criminality in the context of the MLA as well.

Q7. How is essentiality judged?

-        Government of Japan does not refuse assistance simply because the offense for which assistance is requested is relatively minor. On the other hand, in order to provide assistance, the necessity of the assistance must be clearly demonstrated in all MLA requests.
   Moreover, with respect to a request for examination of a witness or provision of articles of evidence, essentiality must be clearly demonstrated in writing, because these assistances may require coercive measures and the assistances impose certain disadvantage to those who possess evidence.

Q8. When does the Minister of Justice deem it inappropriate to honor the request?

-         Minister of Justice may refuse the assistance if it deems inappropriate to provide assistance. While the appropriateness of the request is decided on case-by-case basis, the following might be examples of inappropriate requests:

a.        providing assistance would impair the public security or other essential interests of Japan

b.       the request was made with a view to prosecuting or punishing a person by reason of race, religion, nationality, ethnic origin, political opinions or sex

c.        the request is too burdensome, compared with the offense for which assistance is requested