Arrested in Japan: What Are My Rights to Counsel, and How Quickly Must Police Facilitate Access?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

Being arrested in any country can be a disorienting and stressful experience. In Japan, individuals taken into custody have fundamental constitutional and statutory rights to legal counsel. Understanding these rights – specifically, the right to appoint a lawyer and the right to consult with them – is crucial for anyone, including foreign nationals or employees of international businesses, who may find themselves detained by Japanese police. Equally important is understanding the obligations of law enforcement to facilitate these rights, particularly concerning the speed and manner of access to legal representation.

This article examines the key aspects of the right to counsel for arrested individuals in Japan, focusing on the procedures for requesting a lawyer and the parameters governing police conduct in allowing consultations.

The Right to Appoint Counsel (弁護人選任権, Bengonin Sennin-ken)

The foundation for the right to counsel in Japan is Article 34 of the Constitution, which states, in part, "No person shall be arrested or detained without being at once informed of the charges against him/her or without the immediate privilege of counsel..." This constitutional mandate is fleshed out in the Code of Criminal Procedure (CCP).

  1. General Right to Appoint Counsel:
    CCP Article 30, paragraph 1, provides a general right for a suspect or a defendant to appoint defense counsel at any time.
  2. Information upon Arrest:
    When a person is arrested, judicial police officials are obligated, before taking an initial statement or explanation from the suspect (a procedure known as benkai rokuqu, 弁解録取), to inform the arrested individual of the summary of the suspected offense and, critically, of their right to appoint defense counsel. This notification is a vital safeguard to ensure that suspects are aware of their ability to seek legal assistance from the outset of their detention.
  3. Requesting Notification of Counsel:
    Under CCP Article 78 (which is applied to arrested suspects through Articles 209, 211, and 216), an arrested individual has the right to make a request to a public prosecutor, a judicial police official, or the head of the penal institution (or their deputy) to notify a specific lawyer, law firm, or bar association of their desire to appoint them as counsel. This means the suspect can name a particular lawyer they know, a law firm, or even a local bar association (which can then help in finding a lawyer, often through a duty counsel system or tōban bengoshi seido, 当番弁護士制度).
  4. The Duty of "Immediate Notification" (直ちに通知, tadachi ni tsūchi):
    Once such a request is made, the official who receives it (e.g., the police officer in charge of the suspect) has a clear legal duty under CCP Article 78(2) to "immediately" (直ちに, tadachi ni) convey this notification to the lawyer, law firm, or bar association designated by the suspect.The "immediacy" requirement is strictly interpreted. Unjustified delays can lead to a finding of a violation of the right to counsel. The Osaka District Court decision of December 7, 1989 (Heisei 1.12.7), is a stark example. A suspect requested counsel around 4 PM. Due to some initial administrative errors in identifying the correct lawyer and then delays, the designated lawyer was not properly contacted until nearly 11 AM the next day – an over 18-hour delay. The court found this delay unacceptable, deeming it a serious violation of the suspect's right to counsel, comparable in gravity to disregarding the warrant system. As a consequence, a urine sample taken from the suspect during this period of improper delay was excluded as evidence. The court emphasized that police should have made more diligent efforts to contact the lawyer promptly, such as confirming contact details with the suspect sooner and using available means like telephone messages or faxes.Conversely, not every delay or failure to notify will automatically lead to the exclusion of all subsequent evidence. The Fukuoka High Court decision of October 31, 2002 (Heisei 14.10.31), involved a situation where officers failed to contact the lawyer requested by a suspect during his initial statement. The suspect later provided a urine sample voluntarily. The court found that the failure to contact the lawyer was a clear violation of the suspect's rights but attributed it to an internal communication error or negligence rather than a deliberate intent to secure the urine sample through illegal detention. While the rights violation was acknowledged, the court did not find the illegality "grave" enough in that specific context to automatically exclude the urine test results, focusing on the lack of bad faith intent by the officers to exploit the situation. However, such outcomes are highly fact-dependent, and the core duty of immediate notification remains.
    • This duty is to make the notification promptly and without undue delay. The police fulfill their primary obligation by conveying the message. Whether the chosen lawyer accepts the case, is available, or can come to the station immediately is a separate matter beyond the direct control of the police for the purpose of this initial notification duty.
    • The scope of notification is broad; police must attempt to notify the designated counsel even if they are located in a different prefecture or jurisdiction within Japan.
    • While police are not legally obligated to provide the suspect with a list of lawyers or undertake extensive searches for contact information if the suspect only provides a vague request, practical considerations and the importance of the right often lead police to offer some assistance in finding contact details if reasonably possible.

The Right of Access to Counsel (接見交通権, Sekken Kōtsū-ken)

Once counsel (either appointed by the suspect or a lawyer intending to become their counsel – bengonin to narō to suru mono, 弁護人となろうとする者) is identified and seeks to meet the detained suspect, another fundamental right comes into play: the right of interview and communication, commonly known as sekken kōtsū-ken.

CCP Article 39, paragraph 1, stipulates: "A defendant or a suspect who is under physical restraint may, without the presence of a guard (立会人なしに, tachiai-nin nashi ni), have an interview with his/her defense counsel or a person who is to become his/her defense counsel... and may send or receive documents or things..."

This right to a confidential consultation is vital for the suspect to understand their legal situation, discuss the charges, and prepare their defense.

Limitations on Access: The Investigator's "Designation" Power

While the right to access counsel is robust, it is not absolute in all circumstances. CCP Article 39, paragraph 3, grants investigators (public prosecutors, assistant prosecutors, or judicial police officials) a limited power to "designate" (指定, shitei) the date, time, and place for such interviews or communications. However, this power is strictly constrained:

  1. Pre-Indictment Only: The designation power can only be exercised before formal indictment (prosecution).
  2. "Necessary for the Investigation": Designation is only permissible when it is "necessary for the investigation" (捜査のため必要があるとき, sōsa no tame hitsuyō ga aru toki).
  3. No Unreasonable Restriction on Defense Preparation: Critically, any such designation "shall not be such as to unreasonably restrict the suspect's right to prepare his/her defense" (被疑者が防禦の準備をする権利を不当に制限するようなものであってはならない).

The interpretation of "necessary for the investigation" has been significantly narrowed by the Supreme Court Grand Bench decision of March 24, 1999 (Heisei 11.3.24), known as the Andō case (Minshū Vol. 53, No. 3, p. 514). This landmark ruling established that:

  • As a general principle, investigating authorities must provide an opportunity for an interview with counsel whenever requested.
  • The phrase "necessary for the investigation" (justifying a designation to alter the requested time/place) is to be construed narrowly. It applies only when allowing the interview as requested by counsel would cause "significant hindrance to the investigation" (捜査に顕著な支障が生ずる場合, sōsa ni kencho na shishō ga shōzuru baai).
  • Examples of such "significant hindrance" include situations where:
    • The suspect is currently undergoing interrogation.
    • The suspect is actively participating in a crime scene re-enactment, evidential inspection, or similar ongoing, essential investigative procedure.
    • A specific, crucial interrogation or investigative procedure is reliably and concretely scheduled for the immediate future, and allowing the interview at the time requested by counsel would prevent that scheduled procedure from commencing as planned.
  • Even when a designation is permissible, investigators have a duty to consult with defense counsel to determine the earliest possible alternative date and time for the interview and must take measures to ensure the suspect can adequately prepare their defense. A unilateral imposition of a significantly delayed interview time without consultation or proper justification is likely to be deemed unlawful.

Specific Issues Regarding Access to Counsel

  • The Critical First Interview (初回接見, shokai sekken):
    Courts place particular emphasis on the importance of the first interview between a newly arrested suspect and counsel. This initial meeting is seen as vital for the suspect to understand their rights, the nature of the charges, and to make informed decisions about how to proceed. The Supreme Court decision of June 13, 2000 (Heisei 12.6.13), Minshū Vol. 54, No. 5, p. 1635, dealt with a case where police delayed a lawyer's request for a first interview, made shortly after the suspect's arrest. After a delay of about 70 minutes while essential post-arrest administrative procedures (like notification of rights and fingerprinting) were completed, the police informed the waiting lawyer that the interview would be designated for the following day. The Supreme Court found this designation illegal. It held that once essential initial processing is finished, even a relatively short interview should be permitted immediately or at a very closely proximate time. Delaying the first crucial consultation until the next day without compelling reasons of "significant hindrance" was an unreasonable restriction on the suspect's right to prepare a defense.
  • Interruption of an Ongoing Interrogation for Counsel Access:
    If defense counsel arrives and requests an interview while a suspect is currently being interrogated, and the investigators determine that allowing the interview would not cause a "significant hindrance" (i.e., they choose not to formally exercise their designation power under CCP Art. 39(3)), then the interrogation must cease immediately to allow the legal consultation. Continuing the interrogation, even for a short period like 10 minutes to "reach a good stopping point" or "finish up a statement," after becoming aware of counsel's request and deciding not to make a formal designation, has been held to be unlawful by the Osaka High Court in a decision on April 12, 2011 (Heisei 23.4.12).
  • Logistical Delays vs. Improper Restrictions:
    Reasonable, unavoidable logistical delays in arranging an interview are generally tolerated. For example, if the detaining officer does not have the authority to make a designation decision and needs to contact a superior or the public prosecutor for instructions, a short delay for this communication may be permissible. The Supreme Court decision of September 7, 2004 (Heisei 16.9.7), found that a delay of approximately 40-45 minutes on a holiday, while a detention officer contacted an on-duty prosecutor to confirm whether a designation would be made, fell within reasonable limits given the circumstances. However, legal commentary suggests that during normal working hours, such a "reasonable time" for these internal consultations before allowing access should ideally be around 30-40 minutes at most. Unjustifiably prolonged delays attributed to administrative convenience or without active efforts to facilitate the meeting can be deemed illegal.

Consequences of Violating Rights to Counsel or Access

Violations of a suspect's right to appoint counsel or their right of access to counsel can have serious repercussions:

  • Exclusion of Evidence: If a confession or other incriminating evidence is obtained during a period when a suspect's right to counsel was improperly denied or delayed, that evidence may be excluded from trial as illegally obtained. The gravity of the violation and its impact on the voluntariness or reliability of the evidence are key factors.
  • State Liability: Improper denial or restriction of these rights can potentially lead to civil liability for the state under state redress laws.
  • Disciplinary Actions: Officers found to have wilfully or negligently violated these fundamental rights may be subject to internal disciplinary measures.

Conclusion

For individuals arrested in Japan, the right to counsel is a cornerstone of due process. This encompasses both the right to request that a chosen lawyer, law firm, or bar association be notified of their desire for representation – a request that triggers an immediate notification duty on the part of the police – and the subsequent right to have confidential and timely consultations with that counsel.

While investigating authorities have a limited power to designate the timing and location of legal consultations to prevent "significant hindrance" to an ongoing, legitimate investigation, this power must be exercised narrowly and with due regard for the suspect's paramount right to prepare their defense. Courts, particularly the Supreme Court, have interpreted these rights strictly, emphasizing the importance of prompt notification and the critical nature of early access to legal advice, especially the first interview post-arrest. Any failure by law enforcement to respect these rights can undermine the fairness of the criminal process and lead to severe legal consequences.