JAPAN Law and Practice Contributed by: Shinya Tago, Atsushi Fukasawa, Hiroshi Iida and Landry Guesdon, Iwata Godo Law Offices
when they accept a report (Article 45). The Adminis - trative Procedure Act (eg, for notice hearings) does not apply to investigations aimed directly at gathering information. 2.3 Powers of Investigation Powers to Conduct Searches and Compel Disclosure In principle, in criminal cases and having obtained a warrant issued by a court (Article 218 of the CCP), the police or public prosecutors have the power to conduct the necessary searches (including obtaining evidence). The requirement is broad: “when neces - sary in connection with the investigation of a crime”. Requests for hearings and submissions can also be made on a voluntary basis (Article 197). Rejection of a request may trigger an arrest. Public offices or pub - lic or private organisations may be asked to make a report on necessary matters relating to the investiga - tion. The administrative authorities supervising licensed enterprises (eg, the FSA) usually have the power to conduct on-site inspections. The requirement is broad, as in the case of criminal investigations (eg, for a bank “when it is deemed necessary to ensure the sound and proper operation of the bank’s busi - ness”). Administrative agencies cannot use force to conduct investigations, but any avoidance or preven - tion/blocking of an on-site inspection usually consti - tutes a crime. It is often difficult for enterprises to file an action to revoke administrative dispositions, and an investiga - tion cannot end until the court decides to revoke or suspend it. As an alternative to a compulsory investi - gation, the administrative authorities often ask the rel - evant enterprises to submit information on a voluntary basis, while a formal report submission order is issued in cases that have attracted public attention. The administrative authorities can decide to conduct a dawn raid (a customary JFTC practice in cartel inves - tigations), especially when they have concerns about the destruction or concealment of evidence. The authorities do not have the power to freeze or seize digital asset data itself for investigative purpos -
es. However, as part of criminal proceedings, digital assets or their equivalent monetary value can be con - fiscated as criminal proceeds under the APOC. CCP amendments will enable seizure through data transfer and broader confiscation provisions (not yet in effect). Questioning Powers In criminal cases, the police or public prosecutors can interrogate suspects arrested or detained with a warrant issued by a court (Article 198 of the CCP). The requirement for arrest is “when there is probable cause to suspect that the suspect has committed a crime” (Article 199). Suspects can also be interviewed on a voluntary basis (Article 197). Plea bargaining (limited to cases involving the criminal conduct of third parties, as opposed to one’s own) was introduced relatively recently (Article 350-2 et seq of the CCP). Prosecutors can grant immunity from prosecution to a witness, although the courts tend to scrutinise the credibility of their testimony and there have only been a few cases. Arrest and detention are made to prevent escape and the destruction of evidence, and are a means of fur - thering criminal investigations. They are also used by the police and prosecutors to interrogate suspects and defendants. The administrative authorities supervising licensed enterprises usually have the power to ask questions and order the submission of reports. The requirements and sanctions for non-compliance are generally the same as for administrative inspections. Enterprises are often interviewed and monitored on a voluntary basis. In criminal cases, the suspects and the accused have: • the right to remain silent (Article 198 of the CCP); and • the right to confidential communication with a defence attorney (Article 39). These rights are based on the Constitution. Attorney- client privilege is not recognised under Japanese law in a criminal context, although attorneys have the right to object to the seizure of documents, etc, pertaining
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