Mutual Legal Assistance in Criminal Matters

Obtaining Assistance from Japan with Treaty

Prior Consultation

1.　China, France, Germany, Korea, UK and US: prior informal consultation with the legal attaché in the Japanese Embassy in respective State is strongly recommended.
2.　EU Member State, especially when the case involves other jurisdictions in EU: prior consultation with the legal attaché with the Japanese Permanent Representative to EU in Brussels is strongly recommended. Moreover, close consultation and coordination with other relevant EU states when making a request to Japan is greatly appreciated.
3.　For all others: prior consultation with our division at drafting stage is appreciated (English or Japanese):
　TEL: +81-3-3592-7049
　FAX: +81-3-3592-7063
　E-MAIL: cabiad@i.moj.go.jp
 

What we would like to see in the request letter

1.　The name of the authority who makes the MLA request and the point of the contact with regards to the request.
　→　Certain times, there is a need to clarify the meaning of the request, but it would be time consuming via diplomatic channel. It would expedite the whole process if the request letter includes contact information (preferably e-mail address) of the person who could communicate with our division in either Japanese or English.
2.　The name and other facts to identify the suspect or defendant (to the extent known)
3.　The nature and the stage of the investigation or prosecution for which the assistance is sought.
4.　Facts that constitutes the alleged offense
　→　In examining dual criminality, we see if the underlying facts of your investigation/prosecution would constitute an offense under Japanese law. We are not able to make a positive decision on dual criminality if you do not provide the information on the underlying facts in detail.
　→　We would not refuse the request immediately just because we do not have enough information; we would first seek supplemental information based on the applicable MLAT or multilateral Treaty. However, we would be able to provide an assistance much more sooner if we had enough information from the beginning.
　→　Moreover, the information would help us to understand your case better and we would be able to provide better assistance for your request.
5.　Offense and the text of the applicable law
　→　Please specify the name of the offense of which the underlying facts consist under your law.
　→　Please also provide a copy of the applicable legal provisions. The legal provisions which are cross-referred should also be attached.
6.　Requested assistance (to be specific)
　→　Please specify what exactly you request as assistance.
　→　Please also provide the explanation on why the assistance in question is relevant and necessary for your investigation/prosecution.
　→　Please provide us with the identification, location and/or other specifying information on the person, item, document, bank account, email account or other object of the assistance sought.
　→　Please provide the detailed list of questions when requesting a testimony/statement of a person.
7.　Supporting documents / evidence
　→　Relevant materials would be appreciated which clarify the underlying facts and show the necessity of the assistance (e.g. the court order).
　→　In particular, if a coercive measure is required to provide assistance, we need the evidence which supports the alleged fact in order to apply for a warrant.
8.　Deadline
　→　Please clarify the deadline (if any) for the assistance with a reason.
9.　Confidentiality
　→　Please make it clear in your request if the fact of making a request and the contents thereof should be kept confidential.
　→　Please ensure that the provided evidence shall be treated in a confidential manner within your jurisdiction in accordance with your domestic laws.
10.　Translation
　→　Japanese translations for all the documents should be attached.
　→　In urgent cases we may accept the MLA request in English in accordance with the applicable MLAT. The basis of urgency shall be clearly stated in the request and we would seek supplementary information when necessary.
11.　Lastly, please also make sure that all the refusal grounds under the applicable MLAT or other Treaties are not applied (check the text of applicable treaty).
 

Procedure after receiving the request

1. 　Under the bilateral MLAT/MLAA, UNTOC, UNCAC or CoE Cybercrime Convention, an MLA request can and should be sent to the Central Authority. Japanese Central Authority for incoming MLA request is the Minister of Justice of Japan, and the Minister delegates the authority to the Director of the International Affairs Division, Criminal Affairs Bureau. Thus all the requests should be sent to the International Affairs Division, Criminal Affairs Bureau of the Ministry of Justice of Japan.
2.　The Central Authority examines the request in accordance with the applicable Treaty. If the request does not fall under any of the refusal grounds in the Treaty, the Central Authority:
　-　forwards the request to the respective executing agencies (Public Prosecutors Office, National Public Safety Commission (police), Japan Coast Guard or other special judicial police); or
　-　forwards the request to the current custodian of a document pertaining to the trial, criminal litigation documents (in case of the request for the provision of such document).
3.　The recipient of the request (executing authority) takes necessary measures to collect and transfer the evidence to the Central Authority. When necessary, the executing authority obtains a warrant from the judge and takes coercive measures to obtain the evidence. 
4.　The Central Authority sends the received evidence/documents to the requesting State.
 

Available assistance

1.　Taking testimony, statements or items
　→　Includes seeking an expert opinion.
　→　Questionnaire is essential.
　→　Unless specified in the request, the statement will be taken by a prosecutor or a police officer without an oath on a voluntary basis. If the witness has to make an oath, it is possible only before the judge under Japanese law.
　→　If you seek a testimony, please provide the detailed explanation as to why a voluntary statement is not sufficient.
　→　If the person to make a statement/testify is a suspect, note that Japanese law gives suspect the right to remain silent even if he/she agreed to offer a statement before the court. Thus there is no procedure of obligating the suspect to make a statement/testify under an oath, nor to charge for perjury on his/her conducts.
　→　When a document is requested, Japan will send its certified copy unless otherwise specified in the request.
　→　We are able to obtain a bank record. When seeking it, at least you should provide the name of the bank, name of the account holder and the account number.
　→　We will take coercive measures if it is necessary and you provide sufficient supporting evidence to obtain a warrant.
2.　Examining persons, items or places
　→　We will take coercive measures if it is necessary and you provide sufficient supporting evidence to obtain a warrant.
　→　Please note that there are certain professional privileges under Japanese law against the seizure.
3.　Locating or identifying persons, items or places
　→　Please provide information which is useful in locating or identifying the targeted persons, items or places as much as possible.
　→　It may be easier and faster to obtain this kind of information via ICPO channel.
4.　Providing items in the possession of governmental departments or agencies
　→　We will provide the information which is available to the public without any restrictions.
　→　We will provide the information which is not available to the public as long as it is available to our investigative or prosecuting authority.
5.　Presenting an invitation to a person whose appearance in the requesting State is sought
6.　Transfer of a convicted person in custody for testimony
7.　Assisting in proceedings related to confiscation and immobilization of illicit property or instrumentality of criminal offenses
* “Illicit property” means:
　(a)　crime proceeds generated from certain offenses specified in the Act;
　(b)　any property derived from crime proceeds (except for property obtained through the possession or disposition of crime proceeds which are to be covered by (e) below);
　(c)　position of shareholder or credit acquired by crime proceeds and/or its derivatives for the purpose of obtaining control of management of an enterprise;
　(d)　crime proceeds or the like involving an offence of money launderings;
　(e)　any property produced by, obtained through, or obtained in reward for the offence of money launderings or the offence of controlling the management of an enterprise by exercising the influence from the share or credit acquired by crime proceeds and/or its derivatives in selection of managers of the enterprise or its subsidiaries; or
　(f)　any property obtained as the fruit of or in exchange for the property referred in (c) – (e) above, or any other property obtained through the possession or disposition of the property referred in (c)-(e) above.
8.　Serving documents of criminal proceedings
　→　Service of a document issued by the court/judge is not available under Japan-US MLAT.
　→　Delivery of documents issued by the investigative/prosecuting authority is not available under Japan-Korea MLAT (there are some exceptions: please check with us or the Korean Central Authority).
9.　Returning of the confiscated asset to the legitimate title holder of the assets
10.　Any other assistance permitted under Japanese law and agreed upon between the Central Authorities
 

Grounds to refuse the assitance

1.　Refusal grounds for the MLA request are stipulated by the bilateral MLAT/MLAA, UNTOC, UNCAC, CoE Cybercrime Convention or other applicable treaties.
2.　Under the bilateral MLAT/MLAA, discretionary refusal grounds [for MLA requests in general] are stipulated, but unless the request falls into any of those grounds, Japan shall provide assistance.
For example, under Japan-Korea MLAT, Japan MAY refuse the request when Japan considers that:
　(1)　a request relates to a political offense;
　(2)　the execution of a request would impair its security or other essential interests;
　(3)　a request does not conform to the requirements of this Treaty;
　(4)　there are well-founded reasons to suppose that the request for assistance has been made with a view to prosecuting or punishing a person by reason of race, religion, nationality, ethnic origin, political opinions or sex, or that that person's position may be prejudiced for any of those reasons;
　(5)　the conduct that is the subject of the investigation, prosecution or other proceeding in the requesting Party would not constitute a criminal offense under the laws of the requested Party.
(Please note that dual criminality requirement may be applied only when compulsory measures are required in providing assistance under some other bilateral MLAT/MLAA.)
3.　The UNTOC, UNCAC and CoE Cybercrime Convention stipulate discretionary refusal grounds, and these treaties allow the requested Party to refuse the request on the grounds stipulated by the domestic law.
Under Japanese law, the mandatory refusal grounds for the MLA request are:
　(1)　when the offence 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;
　(2)　when request does not meet the dual criminality requirement; and
　(3)　lack of clarification as to why the evidence sought is essential to the case (with respect to a request for a witness testimony or a submission of original evidence). The explanation could be, for example, the evidential rules of the requesting State requires admissible witness statement needs to be sworn statement. Please specify the provisions of the law if it is legal requirement.
Moreover, as the discretionary refusal ground, Japanese law stipulates:
　(4)　when the Minister of Justice deems it inappropriate to honor the request.
Some examples of the “inappropriate request” are:
　　→　the request is not made in conformity with the provisions of the applicable treaty;
　　→　execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of Japan; and
　　→　the authorities of the requested State Party would be prohibited by its domestic law from carrying out the action requested with regard to any similar offence, had it been subject to investigation, prosecution or judicial proceedings under their own jurisdiction.
4.　The refusal grounds for the MLA request for confiscation, value confiscation (confiscating the value equivalent to the relevant asset) or freezing assets for the confiscation or value confiscation are stipulated by Japanese law (Anti-Organized Crime Act [AOCA]). These grounds are applied for requests under UNTOC, UNCAC or CoE Cybercrime Convention as well as those under bilateral MLAT/MLAA.
Mandatory refusal grounds are:
　(1)　if the alleged offence, if took place within the jurisdiction of Japan, would not fulfill the elements of those crimes specified in the AOCA or a drug offence;
　(2)　if the request does not meet the dual criminality requirement;
* Dual criminality in the context of assisting confiscation or the freezing of the asset in the view of confiscation, would require the alleged offence to be punishable by Japan should the offence took place within the Japanese jurisdiction (“concrete” dual criminality). Hence, the assessment takes into consideration of such factors that would block the conviction such as “self defense”.
　(3)　when any criminal case involving the alleged offense is pending before a Japanese court, or there is a final and binding judgment by a Japanese court for such case;
　(4)　the asset sought is not confiscatable under the laws and regulations of Japan for the offence for which assistance is requested (ex. The asset does not belong to a bona fide third party) or the alleged offence, if committed within the jurisdiction of Japan, would not allow the value equivalent to the assets sought to be confiscated;
　(5)　if the assets sought under the final and binding confiscation order of the requesting State was under collateral and the respective secured party had not been given the opportunity to be heard of the right in the said confiscation procedure without any fault of that party; and
　(6)　UNLESS the request for the freezing of the asset in the view of confiscation or value confiscation is based on a judicial order to freeze/ confiscate it by the judicial authority of the requesting State, when there is NO reasonable ground to suspect that the alleged offence had indeed been committed or that the property in question, if the alleged offence were committed within the Japanese jurisdiction, would NOT be confiscatable under Japanese law.
In addition, we have a discretionary refusal ground:
　(7)　when the Minister of Justice finds it inappropriate to honor the request.
Some examples of the “inappropriate request” are:
　　→　the request is not made in conformity with the provisions of the applicable treaty;
　　→　execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of Japan; and
　　→　the authorities of the requested State Party would be prohibited by its domestic law from carrying out the action requested with regard to any similar offence, had it been subject to investigation, prosecution or judicial proceedings under their own jurisdiction.