Foreigners in Japan are subject to the laws of Japan and are legally accountable for acts committed here. Over recent years a small number of New Zealand citizens have been arrested in Japan, mostly for matters that would be regarded as relatively minor offences in New Zealand. The Embassy cannot seek special treatment for New Zealanders that come to the attention of the Japanese authorities.
The following information has been prepared by the New Zealand Embassy to explain Japanese law pertaining to arrests, what an arrested New Zealand citizen can expect in detention, and the assistance the Embassy is able to provide. It is provided as a guide only and does not constitute official legal advice.
General information regarding New Zealanders arrested or detained overseas can be found on the Ministry of Foreign Affairs and Trade’s SafeTravel(external link) website.
Under Japanese law, a person who has been arrested can be kept in custody by the police for up to 3 days (72 hours). During this time, if the prosecutor submits a request for pre-indictment detention to a judge, and the judge approves the request, the arrested person can be kept in detention for an additional 10 days. The prosecutor may then request an extension of this detention for a further 10-day period. An arrested person may therefore be held in detention for a maximum of 23 days. A detainee may be detained either at a police station or at a detention centre. In detention, the detainee will be questioned by the police and a prosecutor. English interpretation will ordinarily be provided by the police upon request from the detainee. The detainee has the right to remain silent.
Access to a Lawyer
The police will advise the detainee of their right to meet with a lawyer. A lawyer can meet privately with a detainee before and after police/prosecutor questioning, but cannot be present during questioning. The detainee can choose to engage a private lawyer at personal cost, or request a visit by a legal aid lawyer. Typical fees charged by private lawyers may run to the equivalent of some thousands of New Zealand dollars or more. There is no charge for a visit by a legal aid lawyer, however a legal aid lawyer will usually only visit once to provide initial basic advice. In some cases, a legal aid lawyer may agree to provide further legal services at fees taking into account a detainee’s financial circumstances. Generally only the one visit will be made, after which the detainee would not receive any further legal assistance until such time as they may be indicted. Once indicted and therefore required to face a court hearing, a court-appointed lawyer would be assigned to the detainee at no charge to represent them through their court case.
In detention, detainees are not able to make phone calls, and do not have access to email or fax facilities. They may be able to meet with and/or receive letters from and write to family members. However, if a "communications prohibition" has been imposed, communication (both letters and meetings) will be limited to that with a lawyer and/or Embassy consular staff.
Conditions in Detention
While held in detention either at a police station or detention centre, a detainee will receive three basic but nutritionally adequate meals per day, periodic access to bathing facilities, and a daily opportunity to exercise. The detainee may be housed in a cell either on their own or with another detainee(s). Access to medical attention can be requested as required.
Basic laundry services and essential toiletries such as soap, toothbrush/toothpaste, razor/shaving powder and feminine products are provided at no charge. Detainees may also use money held on them or received from family or friends (either directly or sent via the Embassy) to make internal purchases of items like underwear and between-meal snacks. There are strict limitations on the range and quantity of items which may be accepted from family members or friends for passing on to a detainee in custody. Essential clothing items without straps or cords will usually be accepted, as will books, newspapers, magazines and family photographs. Food and drink items, cosmetics, laptops/tablets, music players, ornamental items and the like will not be accepted. People wishing to send items to a detainee in custody are advised to check with the police station/detention centre in advance.
If a detainee is indicted as a result of investigations, a court trial will be scheduled and the detainee will usually remain in detention throughout the duration of the court case, which may take up to some months. If the detainee is not indicted, he/she will be released. Transfer to immigration authorities for deportation from Japan to New Zealand may occur in the case of immigration offences. Court sentencing may involve a fine and/or a term of imprisonment. Appeals can be taken to a higher court. Where both a term of imprisonment and a fine are imposed, the actual term of imprisonment will not start to count down until after the fine has been paid upfront or worked off in prison. New Zealand has no prisoner repatriation agreements with any countries including Japan. Subject to good behaviour, a prisoner may become eligible for parole but only after serving the great majority of their term of imprisonment. Deportation air fare costs are expected to be borne by the deportee, with financial assistance from family or friends sought where necessary.
Role of the Embassy
In addition to advising an arrested detainee of their right to meet with a lawyer, police are also obliged to ask foreign detainees whether or not they wish the police to notify their embassy of their situation. If a New Zealand citizen has been arrested in Tokyo or surrounding areas and requests a meeting with Embassy consular staff, staff will usually visit the person at the police station where he/she is being held. If a New Zealand citizen has been arrested outside of Tokyo, an Embassy consular staff member may not be able to visit him/her and instead will send a letter.
The Embassy can provide limited assistance to an arrested New Zealander who elects for the police to notify the Embassy of his/her situation:
The Embassy will provide an arrested New Zealand citizen with the following materials: This information sheet, and a copy of the Advice for New Zealanders Arrested or Detained Overseas(external link) information published on the Safe Travel(external link) website of the New Zealand Ministry of Foreign Affairs and Trade. A document prepared by the Japan Legal-Aid Lawyers Association outlining the rights of persons arrested in Japan. If required, the Embassy will also provide a sample list of English-speaking lawyers practising in the area where the New Zealander has been arrested.
Assisting with communication
Embassy consular staff will ask the arrested New Zealander (either in person or through the police or by letter) if there is anyone they would like contacted on their behalf and notified of their situation. Consular staff will only contact family members/friends and confirm an arrest/detention if there is specific instruction from the New Zealander. Consular staff will inform the arrested New Zealander that he/she can write to or have the police call the Embassy at any time.
In cases where a communications prohibition has been imposed and the New Zealander is not able to receive letters from family members, consular staff may be able to assist by conveying limited numbers of messages from family members in a letter sent from the Embassy to the detained New Zealander.
Embassy consular staff will keep in touch with the police and/or the New Zealander's lawyer and seek information regarding the length of detention and likely outcome. If the New Zealander has requested that family members be kept informed, consular staff will relay information to family.
What the Embassy can't do
The Embassy cannot request special treatment for New Zealand citizens but can endeavour to ensure an arrested New Zealander is treated the same as a Japanese citizen would be in the same situation. The Embassy cannot select a lawyer for an arrested New Zealander, provide legal advice, get detainees out of detention, or interfere in the judicial process of Japan. Support services do not extend to providing funds (although funds received from family and friends can be passed on), forwarding parcels from family or friends when the detainee is permitted to receive these directly, or purchasing shopping items on behalf.