Article 157-4

If, when examining a person stipulated in the items below as a witness, the court deems it necessary, it may, after hearing the opinion of the prosecutor and defendant or the defendant's counsel, permit the witness to be in a different location from where the judge and persons concerned in the trial are located (being limited to locations that are on the same premises as where the judge and persons concerned in the trial are located), and may examine the witness by means which enable the persons to communicate,

each being able to recognize the state of the others by the transmission and reception of images and voices.

1. Victims of crimes or attempted crimes under Penal Code Articles 176 to
178; Article 181; Article 225 (being limited to the purpose of indecent
behaviour or marriage; hereinafter in this item the same shall apply);
Article 227, paragraph 1 (being limited to the purpose of assisting another
person who has committed a crime provided for in Article 225) or
paragraph 3 (being limited to the purpose of indecent behaviour); or the first
half of the crime in Article 241.

ii. Victims of crimes under the Child Welfare Law (Law No. 164, 1947) Article 60, paragraph 1, or Article 34, paragraph 1, Item 9, and Article 60, paragraph 2; and the Law related to the Protection of Children and Penalties against conduct related to Child Prostitution and Child Pornography (Law No. 52, 1999), Articles 4 to 8.

iii. In addition to the persons referred to in the previous two items, persons for whom it is determined, based upon the nature of the alleged crime, the witness's age, physical and mental state, and relation to the defendant, among other things, that there is a risk that the witness will feel pressure and the witness's emotional state will be demonstrably harmed when testifying in the presence of the judge or persons concerned in the trial.

2. When the court, in cases where a witness is examined by means
stipulated under the previous paragraph, deems that the witness will again
be called to testify as a witness in later criminal proceedings regarding the
same facts, and the witness agrees, it may, after hearing the opinion of the
prosecutor and defendant or the defendant's counsel, record the
examination of the witness, the witness's testimony and state in a recording
medium (this shall be an object on which images and voice can be recorded
simultaneously; hereinafter it shall mean the same).

3. The recording medium taken of the examination of the witness, the
witness's testimony and state under the previous paragraph shall be
attached to the record of the proceedings and become part of the court
record."

On the other hand, in addition to general crimes like intimidation and violence, the Penal Code criminalises in particular the act of intimidating a witness by Article 105-2, to protect witnesses, as follows:

"Article 105-2 (Intimidation of a witness)

A person who, without due cause, in connection with his/her own or another's criminal case, forcibly demands an interview with, or intimidates by words or gestures, any person deemed to have knowledge necessary for the

trial or investigation of such criminal case, or any relative of such a person, shall be punished with imprisonment for not more than one year or with a fine of not more than 200,000 yen."

2. Please describe the framework (legal provisions and established
practice) governing the use of measures encouraging witnesses
and pentiti to co-operate with justice.

In Japan, witnesses can be paid daily allowances as well as traveling expenses in accordance with the Law concerning the cost, etc. of criminal procedure.

Moreover, witnesses and their relatives can be paid a benefit if they are harmed on account of witnesses' statements or appearance in court in accordance with the Law concerning Benefit in the Case of Witnesses' Being Harmed.

These measures indirectly encourage witnesses and pentiti to co-operate with justice as well as protect them.

3. Can measures/benefits encouraging the co-operation of witnesses
and pentiti be used in combination with protection measures
(arrangements concerning trial proceedings, sentencing
conditions, special penitentiary regimes, etc.)? If so, please specify

■•■- and indicate under which conditions they are applied.

Yes. Measures/benefits encouraging the c

o-operation of witnesses and pentiti can be used in combination. As for the conditions under which they are applied, see the replies to questions 1 and 2.

4. For which kind of crime and under which circumstances can
witness and pentito protection be applied? Can the measures be
extended to the relatives or other persons close to the

v witness/pen Wo?

See the reply to question 1.

5. What urgent measures (e.g. immediate relocation to a secret place)
can be taken in order to protect witnesses and pentiti?

See the reply to question 1.

6. Which institutions are involved in the protection of witnesses and
pentiti and what is their role (e.g. law enforcement agencies,
special independent agencies, prosecutor's offices, judicial
authorities, etc)? How does co-operation between the relevant
institutions work in practice?

See the reply to question 1.

7. Are there any specific provisions governing the protection of
witnesses and pentiti in relation to acts of terrorism? If so, please
specify. Are there any specialised counter-terrorism institutions? If
so, what is their role in the protection of witnesses and pentiti in
relation to acts of terrorism?

N/A.

8. How does the framework governing the use of measures protecting
witnesses and pentiti and encouraging them to co-operate with
justice guarantee respect for human rights and individual
freedoms? Please indicate the procedures in place, if any, to
monitor compliance with human rights standards.

In general, human rights and individual freedoms are guaranteed under the Constitution and laws, even within the framework governing the use of measures protecting witnesses and pentiti and encouraging them to co­operate with justice.

b. Procedural measures

9. At which stage(s), and in which context, is it possible for witnesses
and pentiti to benefit from procedural measures of protection?

See the reply to question 1.

10. Is there the possibility for witnesses and pentiti to obtain legal
assistance at this (these) stage(s)?

See the reply to question 1.

11. Are there alternative methods of giving evidence which allow the
protection of witnesses and pentiti from intimidation resulting from
face to face confrontation with the accused? If yes, please specify
(e.g. full or partial anonymity, video-conference, disguise,
exclusion of the defendant from the courtroom when the witness is
giving evidence, exclusion of the media or the public from the trial,
etc.) and indicate under which conditions these methods are used.

12. On which grounds and on the basis of which criteria can anonymity
be granted? Is there the possibility to obtain legal assistance at
this stage?

See the reply to question 1. „_rj

13. Are pre-trial statements of witnesses and pentiti and testimonies of
anonymous witnesses and pentiti regarded as valid evidence? If
yes, under which conditions?

Pre-trial statements of witnesses and pentiti can be regarded as valid evidence under the general hearsay rule provided by Articles 320-328 of the Code of Criminal Procedure.

In general, the testimonies of anonymous witnesses and pentiti are not valid, with the exception of Article 299-2 of the Code of Criminal Procedure as mentioned above.

14. Is it possible, and if so, under which conditions, to use information
provided by "pentitF"? How is their credibility assessed?

In Japan, the laws do not distinguish between witnesses and pentiti.

Therefore, the information provided by pentiti can be used and their credibility is assessed in the ordinary criminal procedure in accordance with the Code of Criminal Procedure and other laws.

15. Which are the opportunities for the defence to exercise its rights,
including the right of the accused to challenge the
witness'/penf/to's credibility in criminal proceedings (including at
the pre-trial stage) and the respect of the "equality of arms"
principle?

The defence has opportunities to exercise its right in criminal proceedings in accordance with the Constitution and laws. That is, the accused can challenge the witness'/penWo's credibility by making a cross-examination.

c. Non-procedural measures

16. At which stage(s), and in which context, is it possible lor witnesses
and penf/f/to benefit from a protection programme?

See the reply to question 1.

17. Is there the possibility for witnesses and pentHI to obtain legal

assistance at this (these) stage(s)?

See the reply to question 1.

18. What is the procedure for admittance to a protection programme?
Please specify, in particular, who takes the initiative, the criteria for
admittance, the assessment of the relevance of a testimony and
how admittance to the programme is formalised.

See the reply to question 1.

19. Please indicate the measures that can be adopted for the
protection of witnesses and pentiti (e.g. surveillance of the
residence, physical protection, protection of personal records,
relocation, change of identity, subsidies, assistance in job search,
relocation of a detainee to another prison or to special units).

See the reply to question 1.

20. What can the duration of a protection programme be? Which are
the procedures for assessing the degree of danger for the
witnesses/penf/t/ and their compliance with the obligations of the
programme? Is it possible to challenge a decision of suspension,
revocation or termination of a protection programme?

See the reply to question 1. d. International co-operation

21. Which measures (e.g. use of modern telecommunications means,
assistance in relocating protected witnesses, exchange of
information between witness protection authorities) have been
adopted in the context of mutual legal assistance in order to
facilitate international co-operation? How are the financial
implications of international co-operation activities dealt with?

In general, international co-operation is conducted in accordance with the Law for International Assistance in Investigation, the Law for Punishment of Organised Crimes, Control of Crime Proceeds and Other Matters, etc.

However, we do not have a special provision regarding international co­operation in protecting witnesses and pentiti.

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22. Has your country entered international (bilateral or multilateral)
agreements on the protection of witnesses and pentiti? If so,
please indicate what kind of provisions they include.

No.

23. How can international co-operation in the field of the protection of
witnesses and pentiti be improved?

e. Statistics

24. How many people currently benefit from witness or pentito
protection measures/programmes, and for how long? How many of
them are foreign people? If the measures/programmes can be
extended to relatives and other close persons, please indicate (and,

I:# if possible, specify the relationship with the witness/penf/fo) how

• many people are included in this category. Please also provide

- figures on the different kinds of measures (procedural and non-

: procedural) adopted, and on the number of cases involving

international co-operation.

N/A.

f. Proposals and comments

25. Please provide any comments/proposals concerning the
implementation of the terms of reference of the PC-PW and, in
particular, instruments to be adopted to strengthen the protection

: of witnesses and pentiti.

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