32 [Constitution] What if you are arrested? The 'freedom of the person' guaranteed by the Constitution and the rules of criminal procedure

Among the human rights we possess, one of the most fundamental and important is "freedom of the person." This refers to the right not to have one's physical freedom unjustly deprived by state power.

To protect this freedom of the person, the Japanese Constitution establishes an extremely detailed "rulebook" that the state must follow when arresting or punishing individuals. In this article, we will explain the guarantee of "due process," which forms the foundation of that rulebook, as well as specific rights in criminal proceedings.

The fundamental rule! You cannot be punished without "due process" (Article 31 of the Constitution) ⚖️

This is the article that establishes the "guarantee of due process," which is the most important element in ensuring freedom of the person. This does not simply mean that "it is enough if the procedure is written in the law."

• Statutory procedure: First of all, the procedure must be established by law.

• Fairness of procedure: The procedure established by that law must itself be fair.

• Statutory substance: What acts constitute a crime and what penalties are imposed must be established by law in advance (principle of legality).

• Fairness of substance: The content of the penalty established by that law must not be unreasonable, such as being too cruel.

Only when these four elements are met can it be said that due process is guaranteed.

Case Study: Third-Party Property Confiscation Case

The "fairness of procedure" was questioned in the Third-Party Property Confiscation Case.

Overview of the case: In a smuggling case, the ship and cargo used by the perpetrator were confiscated. However, the cargo included property belonging to Mr. Z, a third party unrelated to the incident. Mr. Z's property was confiscated without any explanation or opportunity to defend himself.

Judgment of the Supreme Court: The Supreme Court ruled such confiscation to be unconstitutional. It held that, "When confiscating the property of a third party, depriving the owner of their property rights without giving them any opportunity for notification, explanation, or defense is extremely unreasonable and is not permitted by the Constitution." It determined that even for the purpose of criminal investigation, when depriving an unrelated third party of their rights, a minimum level of fair procedure (such as prior notification and an opportunity to rebut) must be guaranteed.

Does it also apply to administrative procedures?

Does this guarantee of due process extend not only to criminal proceedings but also to administrative proceedings? In cases such as the Narita New Law case, the Supreme Court stated that while 'administrative proceedings differ in nature from criminal proceedings,' it is 'not reasonable to judge that they are naturally outside the scope of protection simply because they are not criminal proceedings.' However, the court's position is that it is not always required to have the same level of strict procedure as in criminal proceedings, and the necessary level of procedure is determined by comprehensively considering the nature and urgency of the case, the necessary level of procedure is determined by comprehensively considering the nature and urgency of the case, is the position taken.

From arrest to trial. Rights in criminal proceedings defined by the Constitution 📜

Articles 32 through 40 of the Constitution set forth specific rules to guarantee the rights of suspects and defendants at each stage of criminal proceedings.

Rights of the suspect (investigation stage)

• Warrant requirement: In principle, one cannot be arrested (Article 33) or have their home searched (Article 35) without a warrant issued by a judge.

• Freedom from unlawful detention: One shall not be detained without cause (Article 34).

Rights of the defendant (trial stage)

• Right to a trial (Article 32)

• Right to a fair, speedy, and public trial (Article 37)

• Right not to be compelled to testify against oneself (right to remain silent) (Article 38)

• Prohibition of ex post facto laws and double jeopardy (Article 39)

These detailed provisions are the crystallization of the wisdom of our predecessors to prevent the abuse of state power and avoid the creation of wrongful convictions.

Case study: What happens to a trial left for 15 years? (Takada Case)

The Takada case demonstrates what kind of relief is provided when the 'right to a speedy trial' is infringed.

Overview of the case: The trial of a certain criminal case was left suspended for 15 years without the proceedings resuming.

Judgment of the Supreme Court: The Supreme Court determined that such a significant delay in proceedings was an ' abnormal situation in which the defendant's right to a speedy trial is recognized as having been harmed.' Furthermore, it ruled that in such cases, it is no longer permissible to continue the trial proceedings, and an extraordinary remedy of terminating the trial (dismissal of prosecution) should be granted, it was decided.

Case Study: Is a warrant required for a tax audit? (Kawasaki Minsho Case)

Do these rights regarding criminal procedure apply directly to administrative procedures such as tax audits?

Regarding whether questioning and inspection without a warrant or the right to remain silent are guaranteed in tax audits, the Supreme Court ruled that because these are 'not procedures aimed at pursuing criminal liability,' the same strict guarantees as in criminal procedure do not apply. However, it also stated that the intent of those guarantees extends to administrative procedures, thereby checking the abuse of power.