Extradition

Overview

・　A request from a foreign country to Japan for an extradition of a fugitive is processed in accordance with the Act of Extradition (Law No. 68 of 1953).
・　When there is an extradition treaty between the requesting country and Japan, Japan will extradite the fugitive as a matter of legal obligation under the treaty, subject to applicable restrictions provided for by the treaty and its domestic laws.

　>> As of October 2018, Japan has entered into bilateral extradition treaties with the United States of America and the Republic of Korea. Moreover, there are multilateral treaties with provisions on extradition to which Japan is a party, such as the United Nations Convention against Transnational Organized Crime and the United Nations Convention against Corruption.

I Brief Overview of the Extradition Process

1　Who can make an extradition request?
　In Japan, the extradition procedure is carried out in accordance with the Extradition Act. In addition, if there is an applicable extradition treaty between Japan and the requesting State, such treaty is also applied.
　Japan is able to surrender a fugitive to the requesting State without an extradition treaty as long as the request satisfies the requirements under the Extradition Act.

2　Overview of the procedure
　(1)　Language
　　　An extradition request and all the relevant materials have to be translated into Japanese.
　(2)　Channel for submitting a request
　　　An extradition request has to be submitted by a diplomatic channel.
　The Minister for Foreign Affairs checks if the request is made in accordance with the extradition treaty when there is an applicable treaty, or if the request honours the reciprocity when there is not an applicable treaty. Then the Minister for Foreign Affairs transfers the request and the relevant materials to the Minister of Justice.
　(3)　First Step: Action by the Minister of Justice
　　　The Minister of Justice transfers the request and the relevant materials to the Superintendent Prosecutor of Tokyo High Prosecutors Office unless the request falls into any of the following circumstances. However, (ii), (vi) and (vii) below are not applicable if it is contrary to an applicable treaty:
　　　(i)　The requested offense (offense for which extradition is sought) is a political offense, or the extradition request is deemed to have been made with a view to trying or punishing the fugitive for a political offense;
　　　(ii)　The requested offense would not be punishable by death, life imprisonment or for a long term of three years or more under the laws of the requesting State or Japan;
　　　(iii)　It is deemed that convicting a fugitive or executing a punishment against the fugitive would not be possible under Japanese law due to legal defense or restrictions even if Japan had the jurisdiction or if the fugitive were tried in a Japanese court;
　　　(iv)　Except when a fugitive has been convicted for the requested offense in the requesting country, there is no probable cause to suspect that the fugitive committed the act constituting the requested offense;
　　　(v)　The fugitive’s criminal case for the act constituting the requested offense is pending before a Japanese court, or a judgment in such a case has become final;
　　　(vi)　The fugitive’s criminal case for the act other than the requested offense is pending before a Japanese court, or the fugitive’s sentence for an offense other than the requested offense has not been executed or execution of the sentence is still enforceable; and
　　　(vii)　The fugitive is a Japanese national.
　(4)　Second Step: Examination by Tokyo High Court
　　　A public prosecutor of Tokyo High Prosecutors Office applies to the Tokyo High Court for an examination on whether the case is extraditable. When necessary, the prosecutor detains the fugitive by obtaining a detention permit from a judge of Tokyo High Court prior to the application above.
　Tokyo High Court promptly starts the examination and make a decision on whether the case is extraditable.
　If the fugitive is detained, Tokyo High Court shall make a decision within two months since the day on which the fugitive was taken into custody.
　(5)　Third Step: Order of the Minister of Justice and Surrender
　　　If Tokyo High Court decides that the case is extraditable, and when the Minister of Justice finds the surrender appropriate, the Minister orders the Superintending Prosecutor of Tokyo High Prosecutors Office to surrender the fugitive.
　The fugitive has to be surrendered to the requesting State within 30 days from the day following the day of the surrender order.
　The Minister of Justice sends a permit of custody to the Minister for Foreign Affairs, and the Minister for Foreign Affairs sends it to the requesting State. Officials of the requesting State come to Japan and receive the fugitive by showing the permit of custody.

3　Appeal
　Under the Japanese extradition procedure, a fugitive is not allowed to appeal the Tokyo High Court’s decision to the higher court. On the other hand, when it is found that the Minister of Justice deviates from or abuses his/her discretionary power, the fugitive is able to file a lawsuit seeking a cancellation of the order.

II Evidence Required for Extradition

a.　Information necessary for all the fugitives
　i)　Fugitive’s name, age, sex, nationality, occupation and address (e.g. passport, photograph, etc.);
　ii)　Text of the relevant articles of the requesting State’s laws;
　iii)　Details of the act that constitutes the requested offense
　　→　Provide sufficient and detailed information explaining that the act constitutes an offense and it is punishable (there are no circumstances which bars the punishment such as expiration of the statute of limitation) under the requesting State’s law.
　　→　When Japan considers the dual criminality requirement, Japan examines the relevant facts meticulously. If it is found that the facts constituting the requested offense and other facts related thereto constitute, as a whole, an offense under Japanese law, regardless of the name or the category of the requested offense under the requesting State’s law, dual criminality requirement is satisfied. Thus it is important to provide relevant facts as detailed as possible in the extradition request.
　iv)　Stage of the criminal procedure against the fugitive in the requesting State (e.g. investigation stage before the indictment, indicted but before the trial, after the conviction, etc.)

b.　Person wanted for Prosecution
　i)　Facts supporting probable cause to suspect that the fugitive committed the requested offense
　　When the fugitive has not been convicted in the requesting State, the requesting State shall show probable cause to suspect that the fugitive committed the requested offense.
　In detail, the requesting State has to address the existence of the act which constitutes an offense under the requesting State’s law as well as Japanese law (such act has to satisfy all the elements of an offense); the existence of the result of such act; the fact that the fugitive was the person who did that act; and the fugitive’s mens rea.
　The standard of the proof is “probable cause” standard. This standard is lower than the standard required for convicting a person (proof beyond a reasonable doubt); probable cause standard is thought to be satisfied if the suspicion is tentatively found based on the specific evidence.
　However, the actual level of presenting the facts/evidence is different depending on the circumstances of a specific case. For example, if a fact which casts doubts on the fugitive’s mens rea is found in the relevant evidence, stronger evidence supporting the fugitive’s mens rea has to be presented; and if only indirect evidence is available, many pieces of evidence have to be presented depending on the probative value of those pieces. Moreover, sometimes mens rea is easily shown through the act committed by the fugitive; on the other hand, in some murder case, circumstantial factors have to be taken into account when finding mens rea because the offensive act does not clearly shows mens rea. Thus the requesting State has to show with the supporting evidence that all the elements of an offense stipulated by law are satisfied.
　It is difficult to say the exact amount or contents of the evidence necessary to make a successful request because it is determined on case-by-case basis. It is strongly encouraged to consult with the International Affairs Division, Criminal Affairs Bureau of the Ministry of Justice (contact information is shown below) on the contents and amount of the evidence necessary for the request prior to make a formal extradition request to Japan.
　ii)　Facts showing that the refusal grounds are not applicable
　　It is also necessary to show that there are no circumstances barring a conviction under Japanese law such as the expiration of statute of limitation, self defense and insanity defense.
　It is impossible to make an accurate decision on the necessary evidence without knowledge on Japanese laws. Thus it is encouraged to consult with the International Affairs Division, Criminal Affairs Bureau of the Ministry of Justice on the contents and amount of the evidence necessary for the request prior to make a formal extradition request to Japan.

c.　Person wanted for Imposition/Enforcement of Sentence
　i)　Existence of the conviction
　　If the fugitive has already been convicted in the requesting State, it is not necessary to show probable cause to suspect that the fugitive committed the requested offense; the requesting State has only to show that the fugitive has been convicted. Specifically, the requesting State has only to submit a certified copy of the court decision showing the fugitive’s conviction.
　ii)　Facts showing that the refusal grounds are not applicable
　　Even if the fugitive has already been convicted in the requesting State, there has to be no circumstances barring the conviction under Japanese law such as the expiration of the statute of limitation, self defense or insanity defense.
　It seems that, in view of the fact that the fugitive has already been convicted in the requesting State, certain refusal grounds such as self defense and insanity defense would also be denied under Japanese law; however, depending on the specific circumstances in a specific case, there may be a case where the requesting State has to submit evidence denying such refusal grounds, and thus the requesting State has to be cautious when making a extradition request.

III Form Evidence Must Take

1.　The Extradition Act and relevant rules do not provide for the specific forms or contents of the evidence which is to be submitted by the requesting State. However, in practice it seems important to follow the points below in order to make a successful extradition request.
2.　Extradition request
　If the following points are described in the extradition request, the whole picture of the case will be understood more easily:
　i)　Fugitive’s name, age, sex, nationality, occupation and address;
　ii)　Name of the requested offense, relevant articles of the requesting State’s penal laws;
　iii)　Outline of the act constituting the requested offense (describe the relevant facts in detail including the date, place, who committed the act, how he/she committed it and the result of such act, so that we can easily find that all the elements of an offense stipulated by law are satisfied);
　iv)　If there is a defense/excuse which is expected to be asserted by the defense attorney, the content of it and the detailed grounds showing that such defense/excuse is not applicable; and
　v)　The stage of the criminal procedure against the fugitive in the requesting State.
3.　Materials/documents supporting the facts described in the extradition request
　i)　Materials showing the identity of the fugitive are important in ensuring capturing a right person. Submit materials with which we can identify the fugitive for sure such as a copy of a passport, a photograph of the face and fingerprints;
　ii)　Attach the “primary” evidence showing the existence of the act constituting the requested offense. For example, photographs of the crime scene, inspection reports on the crime scene, judicial autopsy report, photographs of the weapon used by the perpetrator, and written statements of the eyewitnesses are deemed primary evidence. Do not attach all the evidence collected by the requesting State with regard to the case; screen the evidence carefully and attach only the best evidence sufficient to show the existence of the act constituting the requested offense and the fact that the fugitive is the perpetrator;
Sometimes an extract of a piece of the evidence could be preferred rather than the whole piece of evidence. Sometimes an investigator could make a report compiling the extracts of several pieces of evidence. However, it is not appropriate if an investigator interprets the contents of the evidence and summarizes them, because we cannot confirm the existence of or the exact contents of the primary evidence from such summary. Moreover, when a part of the primary evidence is extracted, please consider the possibility that the defense attorney asserts that the exculpatory contents were excluded when the investigator made an extract;
　iii)　Provide a copy of the judgment if the fugitive has already been convicted in the requesting State;
　iv)　Provide the text of the relevant articles of the requesting State’s law;
　v)　Provide a copy of the warrant justifying taking the fugitive into custody such as arrest warrant, if applicable;
　vi)　Evidence which is submitted to Japan can be a copy of the original, and the way of the authentication is not specified. However, it is essential to make an accurate copy of the whole or a part of the original evidence.

IV Evidence / Information Required for Provisional Arrest

1.　Information necessary for the provisional arrest request
　Provide the following information in the provisional arrest request:
　i)　Fugitive’s name, age, sex, nationality, occupation and address;
　ii)　Name of the requested offense, relevant articles of the requesting State’s penal laws;
　iii)　Outline of the act constituting the requested offense (describe the relevant facts as detailed as possible including the date, place, who committed the act, how he/she committed it and the result of such act, so that we can easily find that all the elements of an offense stipulated by law are satisfied. If we are not able to find that the act constitute an offense under the requesting State’s law and that the act could constitute an offense under Japanese law, we cannot make a provisional arrest);
　iv)　The stage of the criminal procedure against the fugitive in the requesting State.
　v)　Circumstances showing the urgency which justifies the provisional arrest;
　vi)　The fact that arrest warrant has been issued against the fugitive or that the sentence has been rendered for the fugitive;
　vii)　Assurance that the requesting State will make an extradition request; and
　viii)　Assurance of the reciprocity when there is not an applicable treaty.

2.　Materials to be attached to the request
　i)　At least a copy of an arrest warrant or a judgment on sentencing the fugitive has to be attached to the provisional arrest request.
　ii)　In the provisional arrest procedure it is not required to attach the evidence showing probable cause to suspect that the fugitive committed the act constituting the requested offense.
On the other hand, the requesting State has to make an extradition request as soon as the provisional arrest is successfully executed; and such evidence is necessary in making an extradition request. Thus when we consider whether or not to accept the provisional arrest, we review the contents of the provisional arrest request to see whether the requesting State would be able to show probable cause to suspect that the fugitive committed the act constituting the requested offense. Therefore, it is important for the requesting State to show the relevant facts corroborated by the evidence as detailed as possible when making the provisional arrest request.
In practice, it is recommended that the requesting State presents some kind of evidentially documents so that a Japanese judge issuing a provisional arrest warrant can see the existence of sufficient evidence and the ability of the requesting State to make an extradition request.
　iii)　If a refusal ground on extradition stipulated by the Extradition Act is found, the case is not extraditable and the provisional arrest cannot be made. Therefore, additional materials will be required to show the non-existence of a refusal ground if such ground is suspected to exist.

Extradition

Overview

I Brief Overview of the Extradition Process

II Evidence Required for Extradition

III Form Evidence Must Take

IV Evidence / Information Required for Provisional Arrest

V Contact Information

ANNEX