Prosecutorial discretion in Japan

Under the current criminal procedure system in Japan, prosecutors are vested with a very broad discretionary power as to whether to bring a criminal case to the court and on what charge

Friday, 28 May 2021 

Although Japan is viewed as a country with a relatively low crime rate, a considerable number of criminal offences are reported, and identified suspects are referred to the prosecutors by whom prosecution is monopolised. 

With some very small exception, all criminal cases are to be referred to the public prosecutors, and there is no private or police prosecution. Looking at the statistics for the year 2019, 907,273 suspects were handled by the prosecution. Now, did they all reach the court? The answer is “no”. 

Out of all those, 81,186 suspects amounting to only 8.9% were formally prosecuted and went to trial, and 201,658 suspects representing a share of 22.2% were disposed of by summary fining procedure at summary courts without being required to appear at the court. 47,752 were juveniles, so they were diverted from criminal procedure and sent to the family courts. As for the rest, 576,677 suspects (63.5%), their cases ended in non-prosecution.

Under the current criminal procedure system in Japan, prosecutors are vested with a very broad discretionary power as to whether to bring a criminal case to the court and on what charge. 

There is no “mandatory prosecution” as seen in some European or Latin American countries where prosecutors are not at liberty to drop cases, and the notion “prosecutorial discretion” is firmly established under the principle of adversarial system adopted after the Second World War with a strong influence of the American criminal procedure. 

What is noteworthy is that, even under the old criminal procedure in the imperial era before 1945 which had a strong inquisitorial character influenced by the then French and German style systems under which the discretionary power of the prosecutors as to this issue were generally denied and prosecution was generally conceived as being mandatory, selective prosecution started to appear in reality, mainly because of overcrowding of prisons which was considered to be one of the negative side-effects of mandatory prosecution. 

In 1918, the Justice Minister of the Imperial Government issued a circular endorsing the practice of selective prosecution which had an effect to lower the overall prosecution rate from over 70% to less than 30%. After 1947, under the current criminal procedure law, the adversarial principle gave the prosecution a legal foundation for its exercising of prosecutorial discretion.

Prosecutorial discretion in Japan is justified by several reasons. Theoretically, it is affirmed by the adversarial system itself where the prosecutors play the role of a plaintiff who is at liberty to consider all elements and circumstances with regards to specific cases and decide whether it is worth to bring the case to the court or not. 

Substantially, and from a practical point of view bearing in mind the overall criminal policy and criminology, such discretionary power is justified from the proven fact that straightforward punishment does not always serve the important purpose of criminal justice, which is general and special deterrence and, under certain circumstances, may create a risk to impede the rehabilitation and reintegration into the society of the offenders which is not negligible. 

Further, it is widely understood that proper exercise of prosecutorial discretion largely contributes to judicial economy, not only preventing the overburdening of the judiciary but also, if the case is not necessarily of a significant meaning to the society, releasing the accused and other relevant individuals at an earlier stage of procedure to whom otherwise the court procedure would be a too much heavy burden.

Another unique feature of the Japanese prosecution may be that they are extremely careful when opting to prosecute the case before a court. It is an established prosecutorial practice that a prosecutor only prosecutes a case when he/she is firmly confident that available and admissible evidence secures conviction. In other words, unless the prosecutor is quite sure that he/she can prove the charge beyond reasonable doubt and able to refute all possible counterarguments by the defense, he/she will drop the case. 

It is the Japanese prosecution’s belief that prosecuting a person without being perfectly sure of final conviction is an irresponsible attitude a prosecutor must never take. Therefore, in Japan, the standard or threshold for prosecution is higher than in other jurisdictions which sets them at “probable cause” or “realistic prospect of conviction”, and this leads to the very high conviction rate which astonishes some practitioners and academics who are not familiar with the Japanese practice.

Japanese prosecutors also drop cases even when they are sure that they have overwhelming evidence for conviction. Looking quickly again at the 2019 prosecutorial statistics, out of the 576,677 suspects as to whom the cases were dropped, 513,757 suspects were released from the procedure by “suspension of prosecution”, a decision of non-prosecution by the prosecutor under Article 248 of the Criminal Procedure Code which says, “Where prosecution is deemed unnecessary owing to the character, age, and environment of the offender, the gravity of the offense, and the circumstances or situation after the offense, prosecution need not be instituted.” 

This provision was inherited from the ministerial circular in the imperial era as mentioned above, ordering to avoid unnecessary prosecution. Under this provision, prosecutors in Japan drop more than half of the case before them even when they are convinced that they can secure conviction in the courtroom but do not see the need to do so or think that the suspect should be diverted and move forward to rehabilitation through different measures by his/her own endeavours.

Prosecutorial discretion in Japan is exercised fairly and efficiently. Still, since there are inherent possible risks of abuse of such huge authority conceivable, the law and practice provide for multiple norms and measures designed to prevent unwanted misuse. 

One is the activity of the Committee for Inquest of Prosecution, a committee comprised of ordinary citizens which reviews the non-prosecution decisions by the prosecutors and if it determines that the case should be prosecuted, the prosecution must reopen the case and make efforts to prosecute. If they still do not, and the committee still finds it necessary to prosecute the case, then the case will be assigned to private lawyers who will take over the prosecution act as prosecutors and prosecute the case. 

There are some other formal systems and developed practice to prevent undue dropping of cases by the prosecutors and thereby the fair and appropriate discretionary decision-making by the prosecutors is systematically and practically secured.

[Taro Morinaga is a Government Attorney/Public Prosecutor of Japan, with more than two decades of legal experience. He is currently the Director of the International Cooperation Department of the Research and Training Institute of the Ministry of Justice of Japan, and lead trainer for the country focused training program conducted by Japan International Cooperation Agency (JICA) towards capacity enhancement of the Attorney General’s Department and other justice sector institutions in Sri Lanka.]

(Disclaimer: Please be advised the contents expressed herein do not represent any findings or opinion of any governmental or non-governmental institution of Japan and the author is alone responsible therefor.)