Conditional Release of an Accused in Japan

Abstract

2 One might say that there are three ways to protect the right of an accused from abuse through physical restraint: prevention, sanction and compensation. Hirano, Guaranty of Personal Liberty, 64 KOKKA GAKKAI ZASSI (Journal of the Association of Political and Social Sciences) 135 (1950). Preventive methods will be described in the following paragraphs of text. As to sanction, the PENAL CODE (JAPAN, PENAL CODE (Ministry of Justice ed. 1957) [hereinafter cited as PENAL CODE]) punishes abuse of authority by a public officer, art. 193; illegal arrest and confinement by a person performing or assisting in judicial, prosecutorial or police functions, art. 194; and mistreatment by such a person, art. 195. If, in a case in which complaint or accusation is made of any of these offenses, the complainant or accuser is dissatisfied with the disposition made by a public prosecutor, he may apply to a district court to secure a trial of his complaint. JAPAN, CODE OF CRIMINAL PROCEDURE art. 262 (Ministry of Justice ed. 1957) [hereinafter cited as CODE]. Finally, as regards compensation, article 40 of JAPAN, CONST., provides: Any person, in case he is acquitted after he has been arrested or detained, may sue the State for redress as provided by law. And according to the Criminal Compensation Law, Japan Law No. 1, 1950, as amended, Law No. 208, 1952, as amended, Law No. 68, 1953, the accused has a claim against the Government for compensation for such arrest or detention, not only in case of acquittal as not guilty but also in the event of dismissal, if there exists sufficient reason to believe that a decision of not guilty would upon full! trial have been rendered. Furthermore, under the Regulation for Suspect's Compensation, Ministry of Justice Instruction No. 1, 1957, a suspect, if detained during investigation, may claim compensation if the public prosecutor decides not to prosecute. In this connection it is also to be noted that the number of days of pre-judgment detention are deducted from a subsequent sentence. PENAL CODE art. 21; CODE art. 495.