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In Japan, persons accused of corruption will be able to claim leniency for cooperating with investigations

In June 2018, Japan's Code of Criminal Procedure was amended to provide for persons suspected or accused of committing crimes to qualify for leniency.

This right was granted to both natural and legal persons who provide assistance to the investigation of persons suspected or accused of committing crimes. Assistance may take the form of:

  • assisting in the collection of evidence;
  • Providing reliable and comprehensive answers during investigative interviews;
  • ensuring full disclosure of information during investigations by State authorities or in court hearings.

An important feature is that such assistance to the investigation is taken into account only if it relates to information about other persons, and not directly to the person claiming mitigation of liability. That is, in fact, the introduced norms are aimed at encouraging "whistleblowing" on the part of suspected or accused persons.

At the same time, compliance with these conditions does not guarantee mandatory mitigation of liability, but only gives the right to claim to negotiate an agreement with the investigation. Law enforcers, in turn, can:

  • refuse to prosecute the organization;
  • modify (in mitigation) or completely drop the charges;
  • recommend leniency to the court;
  • agree to a speedy trial.

These norms apply only to certain types of crimes, including bribery, fraud and embezzlement, violations of antitrust and tax laws, as well as drug and firearms offenses.

According to experts, the adopted norms will help to increase the disclosure of cases for which law enforcers do not have sufficient evidence. Thus, the innovations will become an additional incentive to assist the investigation, for example, on the part of mid-level employees - by encouraging them to report misconduct, its approval or encouragement by the superior management of the organization, on the part of senior managers of the organization - by encouraging them to report involvement in misconduct of already dismissed employees.

Among the possible negative consequences is the likelihood of an increase in the number of "false denunciations" by persons seeking leniency. In this regard, prosecutors are advised to carefully examine the reliability of the information and evidence provided, as well as to involve defense lawyers in negotiating agreements with the investigation. Knowingly providing false information is a criminal offense punishable by imprisonment for up to 5 years.

In addition, the introduction of such a mechanism, according to experts, may lead to an increase in the number of "ultimatums" by defendants who refuse to provide any testimony before they agree to enter into an agreement with the investigation.

Japan is often criticized by international organizations and experts for insufficient activity in the enforcement of anti-corruption legislation. The country was the last of the G7 and G20 member states to ratify the UN Convention against Corruption. The possibility of introducing a mechanism for concluding agreements with investigators has been discussed in Japan since 2011, along with the need to introduce mandatory audio and video recording of investigative interviews. The introduced norms have already been applied in practice during investigations

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Sanctions
Foreign bribery
Corruption whistleblowers
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