Waseda University Institute of Comparative Law

     The Constitution of Japan provides with respect to suspects in criminal cases that “[n]o person shall be arrested or detained without…the immediate privilege of counsel” (Article 34), and with respect to defendants in criminal cases that “[a]t all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the State” (paragraph 3 of Article 37). However, under the previous law, those who could not afford defense counsel were guaranteed a court-appointed defense counsel only after they were indicted and became defendants. In other words, no public defense system existed for suspects during investigations.
     In order to ensure the fairness of the criminal justice system, it is critical to properly protect the rights of suspects and defendants, and for that purpose, it is particularly important to effectively secure the right to counsel. Given this background, the current reform of the justice system introduces the public defense system for suspects at the pre-indictment stage.

     The previous public defense system was under the jurisdiction of the courts. The responsibilities for the new system, however, have been put in the hands of the Japan Legal Support Center, a quasi-independent administrative agency newly established to improve access to the justice system. At the Center, attorneys who work full-time or on a contract basis handle the actual cases. Still, the new public defense system does not apply to all criminal cases. The system was put into effect in October 2006 for suspects who are detained for certain serious crimes (to which the death penalty, life imprisonment, or imprisonment with or without work for a minimum period of one (1) year or more applies); its application is due to be extended in May of 2009 to include suspects detained in cases to which the death penalty, life imprisonment, or imprisonment with or without work for a maximum period of three (3) years or more applies. The number of applicable cases is estimated to reach approximately 100,000 per year. In addition, to be eligible to use the system, the suspects must not have the liquid assets of 500,000 yen or more, and if they do, they must apply in advance to a bar association for the appointment of a private defense counsel.

     During the fiscal year 2007 (between April 2007 and March 2008), a total of 6,776 suspects made use of the pubic defense system. As of April 2008, a total of 13,427 attorneys nationwide work on a contract basis at the Japan Legal Support Center; however, only 96 of these attorneys work full-time there. With the new citizen judge system due to commence for the most serious of criminal cases in May 2009, coinciding with the expansion of the scope of application of the public defense system, the success of these new systems depends on whether, by that time, a dramatic increase can be achieved in the number of full-time and contract attorneys at the Center, and whether the attorneys can acquire new advocacy and courtroom skills tailored to the new systems. This will depend, at least in part, on whether the attorneys can receive adequate remuneration for their services.