Brushes with the law

What should I do if I am stopped randomly by the police?

Recently there have been a number of cases of police stopping foreigners in the street to ask questions about "suspicious behavior" and check inside their bags, even if they haven't been doing anything wrong.

There are certain reasons why police are allowed to stop people in the street.

• Police have the right to request that you produce your foreigner registration card (gaijin card) or passport at any time. Failure to do so may end up in your being taken to the police station until someone can produce your ID for you.
• If you are acting suspiciously or it looks like you will commit a crime.
• You can only be arrested if a warrant has been issued or you are caught in the act of committing a crime.
• The police are only allowed to touch you if you have been arrested according to the law, to check for weapons.

However, apart from the above reasons, many foreigners believe that they are being stopped and questioned just because they are foreigners. There are concerns that this is a form of discrimination.

Of the foreigners surveyed by the Tokyo Bar Association in Dec 2006 and Jan 2007, 52% answered that they had experienced questioning from the police. Many of these questionings occurred in and around stations, without the use of interpreters, and the foreigners felt that they were being targeted due to their skin color, facial features and language.

According to the survey, as the questioning was mainly undertaking in Japanese, many foreigners could not understand why they had been stopped and when explained, the reasons explained did not make sense.

Often, when the police felt the questions were not being answered properly, they required that the foreigner's bags be searched. Understandably, this wouldn't leave you with a very good feeling and this was mainly due to the attitude of the police.

If you feel that you have been stopped for no reason, you do have the rights:

• The police can not force you to answer their questions and you should explain that at the beginning. Even people who have been arrested have the right to silence.
• Request an interpreter so they can explain why they are questioning you.
• The police have the right to ask for ID (gaijin card/passport), but no right to search your bags. You should kindly refuse and walk away.
• When refusing to answer questions, make sure you do not touch the police officers as they could arrest you for interfering in the execution of their duties.
• If you feel that being questioned out on the street is bringing unwanted attention or you are blocking the flow of traffic, you are allowed to request to move to a more appropriate place such as the police box.
• If you feel you have been wrongly questioned, call a lawyer or local bar association.

Of course, the best way to deal with this is to kindly answer the police officer's basic questions, but don't let them do anything that infringes on your rights.

What happens if I am arrested in Japan?

Of course the best thing is to avoid doing something that would get you arrested, but if for some reason you do get arrested, please remember that in Japan there is an almost 100% conviction rate!

You should be aware that the law and judicial processes in Japan will differ to that of your own country. The law also differs for people who are diplomats or members of the US or UN Forces, but for most foreigners the law treats them as it would Japanese citizens. Having a foreign passport does not give you any special treatment.

There are three ways that people can be arrested in Japan. One is by a warrant issued by a judge; the second is if you are caught in the act of committing a crime; and the third is called an emergency arrest, for cases when the crime committed is serious enough to warrant over three years in jail.

Right to a lawyer

The first thing you should do if you are arrested is to request to speak to the on-duty lawyer from the bar association. This is your right but you must ask for it. The first meeting is free. In Ibaraki the association's interpreter service costs 10,000 yen plus travel expenses without a time limit, for the first meeting only.

If you want to use this lawyer, the next meeting will cost. You are allowed to choose your own lawyer too if you have one.

To access the Ibaraki on-duty lawyer, ask the police to call 0292-21-3501.

The US Embassy website has a list of English speaking lawyers here.

If you haven't got enough money for a lawyer, it is possible to ask for a court-appointed defense lawyer. This must be asked for by the accused themselves, whereas other types can be requested by family members. The condition for use of a court-appointed lawyer is that you must have less than 500,000 yen in savings and the crime must serious enough to warrant over 3 years in jail. Visa overstay cases do not qualify for this system.

Access to the court appointed lawyer may not occur until closer to the trial date. Some people don't meet their appointed lawyer until the day of their case.

Right to remain silent

Like in all the movies you see, you have the right to remain silent. You do not have to participate in the police's investigation and interrogations. Until your lawyer turns up, don't sign records from the questioning or anything, as you may inadvertently be signing your confession.

Even if you can speak Japanese, you as a foreigner have the right to an interpreter. It is best to not talk until they turn up.

Right to contact your embassy

As a foreign national, you have the right to contact you embassy so they can visit you and give you advice. They can not get you out of jail or pay for you legal fees. However, they can contact you family and give you details of English speaking lawyers as you are not allowed to make phone calls yourself. You will have to ask the police to contact the embassy on your behalf.

What happens next?

If you were arrested by the judicial police, within 48 hours of arrest, you must be given a summary of the charges to be laid against you, the chance to appoint a lawyer (the on-duty lawyer or otherwise) and the chance to make a plea.

After this, the following could happen:

• You are released as detainment is not required
• You are put in custody of the prosecutors

If you were arrested by the prosecuting attorney, within 24 hours of arrest (sometimes 72 hours), you must be given a summary of your suspected crimes, the chance to appoint a lawyer and the chance to make a plea.

After this, the following could happen:

• You are released as detainment is not required
• You remain in custody

During these initial 72 hours, most police stations will not allow visitors; however, this depends on each station and the nature of the crime. Embassy staff may be permitted.

Release

You are likely to be released if:

• It is likely that you haven't committed the crime
• There will be a long delay in laying charges

Custody

You can be taken into custody by order of the prosecution in the following cases, if you are suspected to have committed the crime.

• There is enough evidence against you
• You have no address
• You may destroy evidence
• There is a likelihood of absconding

After the prosecution has applied for custody, you can be held for 10 days. During this time, more often than not, you may only speak to your lawyer and interpreter and you will be given no access to reading and writing materials. At this point, no charges need to be laid.

The prosecution is able to apply for a further 10 days on top of this (and an additional 5 in case of internal/external wars). This means that in all, you can be held for 23 days (28 days) without charge while the prosecution makes a case against you.

Charges

After this time, if you are officially indicted, then you will be required to stay in custody until the trial. Of course if there is sufficient evidence, this could happen before the 23 days are up. If sufficient evidence is not found, you may also be released before this time is up.

The custody is reviewed every two months. Again, you may be released at this stage if there is a lack of evidence or a delay in the trial. During this time, you may or may not be allowed visitors other than your lawyer and embassy staff.

Bail

Bail is only available in limited cases; it is very rare in the case of foreigners. If you are pleading innocent, it is hard to get bail. Bail can be as high as 2,000,000 yen. If you can make bail, as long as you don't break the bail conditions then the money will be returned after the trial.

The court case

It often takes a very long time between arrest and trial in Japan. Prosecutors often won't take a case to court unless they are sure they can win. This is why there is an almost 100% conviction rate.

The trial will take place in a public court before one or three judges. A jury system will be introduced to Japan's courts in May 2009.

If the accused isn't present, the trial can not proceed. If the charges are for more than 3 years imprisonment, then a lawyer must also be present for the case to be heard.

Judicial decision

If there is sufficient doubt, then the judges must find you innocent and you will be compensated for your time in custody by the Japanese Government.

If you are found guilty, then you may be imprisoned, fined or both. It is possible to appeal a decision. This must be done in writing within 2 weeks of the decision.

If your visa expires while you are in prison, you will be deported at your own expense to your home country after you have served your time.

If you still have time left on your visa after release, you are usually permitted to stay in Japan for the duration, but it is very hard to be reissued a visa once it expires.