Japanese criminal procedure law prevents extradition from Germany

07/02/2021 - Our client - US-American - was released from extradition custody in Düsseldorf after months on June 07, 2021, extradition to Japan was refused and extradition proceedings in Germany were terminated.

I have been dealing with the extradition procedure since November 2020 and very quickly came to the conclusion that the conditions of the Japanese judicial system and detention facilities in Japan have characteristics that prevent extradition from Germany.

Other countries extradite to Japan; the U.S. last attracted attention with the extradition of two of its own citizens to Japan in March 2021. A Japanese prosecutor had asked the U.S. to extradite the two Americans who allegedly helped ex-Nissan CEO Carlos Ghosn flee Japan for Lebanon. The U.S. has had a bilateral extradition treaty with Japan since 1978 that also allows, but does not require, the extradition of its own nationals.

Extradition requests from Japan are rare in Germany, although Japan is now more frequently involving INTERPOL. In Germany, the issue of extradition to Japan is not very familiar to the General Public Prosecutor's offices (GenStA) and the higher regional courts (OLGs) that decide on extradition proceedings. OLGs are also regularly confronted for the first time with the question of whether an extradition to Japan is manifestly incompatible with essential principles of German law (especially fundamental rights). Until OLGs recognize a violation of the ordre public rule, time passes.

In our case, I consulted a scholar working in Japan and spent a great deal of time studying the literature to understand the peculiarities of the Japanese judicial system and prisons that do not tolerate extradition there from Germany. The Japanese judicial system has changed considerably. While in the early 1990s Japan was still described as one of the safest countries and the criminal justice system as "generally lenient," from the early 2000s onward a "culture of control" has established itself with increasing tendency.

Michael Tonry, (Japan`s Prosecution System, 2012) describes the power of law enforcement: "Prosecutors have more control over life, liberty, and reputation than any other officials in Japan." Others repeatedly speak of "paradise for a prosecutor."

In the case of the Düsseldorf Higher Regional Court we explained that, according to German standards, the prosecuted person in Japan cannot expect a fair trial or humane conditions of detention.

Various NGOs have already described the state of the Japanese judicial system and prisons. Amnesty International noted in May 2009 that pre-trial detention does not meet international standards and that a system in which suspects can be held for 23 days with only limited access to a lawyer increases the risk of abusive interrogation methods to obtain confessions.

Two years later, Amnesty International noted in the "Amnesty Report Japan May 2011," "The pre-trial detention system (daiyo kangoku) continues to allow for torture and other ill-treatment aimed at targeting "confessions" during interrogations. The daiyo kangoku system allows police to detain suspects for periods of up to 23 days."

Trial observers in Japan further report that persons arrested in Japan are coerced into confessions before they can even speak to a lawyer, and that confession is considered the "king of evidence" in criminal justice practice. Almost all offenses that courts convict are not denied by defendants, resulting in the absurdly high conviction rate of 99.9 percent. Those who are remanded in custody must expect to remain there until they confess. Critical Japanese lawyers are said to have said that Japan's justice system is based on "hostage-taking" in which the suspect is the hostage and "his confession is the ransom".

In pretrial detention in Japan, the detainee is subject to permanent control and observation, which increases the ongoing pressure on him. Pretrial detainees from Western countries find it difficult to endure the atmosphere of isolation from visitors, permanent control and regimentation, and constant commandos in Japanese detention centers. Inhumane conditions of detention as an obstacle to extradition are to be measured with quite different standards with regard to Japan than the case law of the ECtHR has developed so far for conditions of detention in Western countries.