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Opinion: Is criminalizing conspiracy necessary for dealing with international crimes?

  • 2015-01-27 15:00:00
  • , Mainichi
  • Translation

(Mainichi: January 26, 2015 – p. 6)

 

 By Takeshi Wada

 

 Amendments to the organized crime punishment law to deal with international organized crimes by terrorists, the mafia, and other groups, focusing on the introduction of the crime of conspiracy to make the plotting of certain crimes punishable, have long been a pending issue. These amendments have failed to pass the Diet three times in the past and will not be submitted to the regular Diet session opening on Jan. 26. While the government insists that the amendments are needed for the war against international terrorism, the Japan Federation of Bar Associations warns that the “the scope of acts liable to be penalized is unclear, so they will give rise to abuse of investigative power.” Let us look at the history of this problem and the issues involved.

 

 Japan not a signatory of UN Convention

 

 The UN Convention against Transnational Organized Crime aiming at common legislation by the member countries to penalize organized crimes was adopted by the UN General Assembly in 2000 and took effect in 2003. The Japanese Diet ratified the treaty in the same year but did not accede to it because it had no law on the crime of conspiracy. So far, 185 countries and territories have signed up and there are only a handful of non-signatories, such as North Korea and Iran. A senior Ministry of Justice official complains, “The war against organized crimes is an international consensus. Japan is being frowned upon for not acceding.” For example, the Financial Action Task Force (FATF), a governmental organization working to stamp out funding of terrorism, recommended in 2008 that Japan accede to the Convention. Last June, the FATF urged the government to take action again, seeing that no improvement had been made.

 

 “Conspiracy” refers to “two or more people agreeing to commit a certain crime.” The agreement has to be realistic and specific for the crime of conspiracy to be valid. The Japanese criminal law is based on consummation. “Attempted crimes” are also punishable if an unsuccessful attempt was actually made. For certain serious crimes, such as murder or robbery, preparation to commit crime is also punishable. However, conspiracy, which is even a step before preparation, is not punishable, except for certain exceptional cases.

 

 During the drafting of the UN Convention, the government had also taken the position that introducing the crime of conspiracy before the scope of crimes and definition of organized crimes were clarified would “contradict Japan’s legal principles” (opinion stated at the special governmental committee for drafting the Convention in March 1999).

 

 Amendments to the organized crime law were first submitted to the Diet in 2003. Conspiracy to commit “crimes punishable by four years or more of imprisonment” by “an organization whose purpose is to engage in criminal activities” is punishable by up to five years in prison if pertaining to “crimes punishable by death, life sentence, or imprisonment of 10 years or more,” and punishable by up to 2 years in prison if pertaining to “crimes punishable by 4-10 years in prison.”

 

 Concerns about undermining freedom

 

 There are two concerns regarding the crime of conspiracy: (1) It becomes a crime to just talk vaguely about committing a crime, so this may undermine the freedom of thought or freedom of expression; and (2) “organizations” may include companies, NGOs, and labor unions, so ordinary citizens may also be punished. There has been criticism that the crime of conspiracy will cover at least 600 crimes. It has also been pointed out that “the investigation authorities may reinforce surveillance and shadowing and may strengthen and abuse investigative powers to broaden the scope of crimes where wiretapping or bugging may be introduced,” according to lawyer Yukio Yamashita, secretary general of the Federation of Bar Associations’s task force on the bills on conspiracy.

 

 The amendments were first deliberated in the special Diet session of 2005. However, even ruling party members of the House of Representatives Committee on Judicial Affairs remarked that “there is too much ambiguity in presuming conspiracy” and “the legal provisions are very hard to understand, and this may cause misunderstanding.” The bills were carried over to the next session and the ruling parties submitted proposals for revisions during the regular Diet session of 2006.

 

 The revisions called for: setting preparatory action as a requirement for the crime of conspiracy to be valid and narrowing down the scope of “organizations.” The opposition Democratic Party of Japan (DPJ) made proposals to include preparatory action as a requirement and limit punishment to conspiracy to commit “international crimes punishable by five or more years of imprisonment.” However, the UN Convention stipulates that conspiracy to commit “crimes punishable by four or more years in prison” “regardless of whether the crime is international or not” should be made illegal, so the government and the ruling parties rejected the DPJ’s counterproposals on the grounds that they contradicted the UN treaty. Further revisions to limit the coverage to “organized crime groups” and require “preparatory and other acts to commit crime” as a basis for punishing conspiracy were submitted. However, the DPJ did not consent, so the two sides failed to reach agreement.

 

 In June 2005, when the Diet was about to adjourn, the ruling parties changed tack and attempted to accept all the DPJ proposals. It is reckoned that at that time, the government was mindful of the G8 Summit being held in July, right after the Diet adjourned, and was trying to pass the amendments first and revise them later. However, then Foreign Minister Taro Aso stated that the DPJ proposals would not make Japan eligible for acceding to the UN Convention, thus provoking the DPJ’s ire. The amendments were not even submitted to a vote. Further deliberations on the amendments were not conducted subsequently and they were scrapped when the Lower House was dissolved in 2009.

 

 Low priority in Diet agenda

 

 Since the LDP returned to power in 2012, there had been rumors about resubmitting the amendments each time the Diet was about to convene. However, the Prime Minister’s Official Residence has taken a cautious attitude and has not resubmitted them. In the current regular Diet session, the focus will mostly be on security legislation to enable the exercise of the right to collective self-defense. One government source notes that “since there is an order of priority, there may not be time to deliberate on the crime of conspiracy.”

 

 There is also an opinion that the term “crime of conspiracy” causes misunderstanding, according to the above government source. Yamashita reckons that the amendments may be resubmitted to the extraordinary Diet session this fall. He thinks the government may change the name and present more restrictive proposals to underscore that “this has nothing to do with ordinary citizens.” Since she assumed office last October, Justice Minister Yoko Kamikawa has kept saying: “We are considering this matter carefully in light of the anxieties and concerns. We have not decided on a specific timeframe for submitting the bills.”

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