Release
Release is to let a person in custody at a detention facility by arrest/detention go. This is similar with release on bail: a system which frees someone from custody as well, however; release differs in freeing a person in custody factually in various cases before prosecution from release on bail that is a legal system to free the accused under detention after prosecution.
Once arrested/detained, he/she will be detained in a detention house. As during this period the contact with the outside world is limited, he/she cannot go to place of work or school. Moreover, the long-term physical restraint causes delay in return to normal life, which may expose the case to around, and at worst, lead to firing of a person arrested/detained from his/her company or expulsion from school.
Therefore, lawyers do defense activities in order for the suspect to return to normal life as soon as possible. In this case, it is important to take action for release as soon as possible.
Merit of Release
- Can return to normal life immediately;
- Make it easier for the suspect to contact with a lawyer, which makes it easier for the lawyer to do defense activities; and,
- Decrease a risk of exposing the case to around.
Release Before Prosecution
1. Release before sending to a public prosecutor, after arrest
The police have to send a case to a public prosecutor after finishing investigation of a crime, except minor cases. In this case, we generally call sending a case to a public prosecutor without arrest ‘paper sent to prosecutor.’ On the other hand, when the police arrested the suspect, the police have to send the suspect with documents and evidence to a public prosecutor within 48 hours after arrest. Where there is no need to detain the suspect, the police have to release him/her immediately.
Thereby, it is important to have an interview with a counsel and prepare for defense activities before a case is sent to a public prosecutor after arrest not to begin the proceedings of detention subsequently neither to give a false confession.
2. Release before request for detention, after sent to a public prosecutor
When a case in which the suspect got arrested was sent to a public prosecutor, he has to determine whether there is a need to detain the suspect within 24 hours after receiving him/her. On the other hand, where a public prosecutor determines that there is a need to detain the suspect, he has to request detention or indict the suspect immediately. However, there is little case that a public prosecutor prosecutes immediately without detaining the suspect.
Detention is to be done on the grounds that the residence of the suspect is unknown, he/she may destroy or conceal evidence, or he/she may flee. Then, a lawyer works on to a public prosecutor not to request detention by alleging that there are no grounds for detention and persuading him to avoid from requesting detention.
3. Release before a decision to detain, after request for detention
Even when a public prosecutor made a request for detention, a judge decides whether he detains the suspect or not. Then, a lawyer alleges to a judge that there is no grounds nor necessity to detain the suspect in writing with the circumstances heard from the suspect and collected evidentiary materials. By a lawyer’s persuading a judge not to permit the request for detention through an interview with a judge and submission of a written statement, the suspect will be released if a judge rejects the request for detention.
Where the request for detention from a public prosecutor is permitted, it is better to avoid detention as much as possible as the detention period is for up to 20 days including detention extension. Even if an investigation continues, a case of being detained differs vastly from that of not being detained in a sense that the ease of a preparation for the future defense activities may change, and above all that the suspect may return to normal life as soon as possible.
4. Release by reversing a decision to detain the suspect, after the decision was made
Even when a judge made a decision to detain the suspect, it is possible to file a complaint with the decision. An appeal against a ruling by a judge or disposition by a public prosecutor etc. (jun ko-koku in Japanese) means a motion of complaints to claim that the decision to detain the suspect by the court is illegal and to demand a nullification of the decision. However, as this is a proceeding that demands to reverse the decision made by a judge, in practice the hurdle to permit the appeal is high and the possibility to permit it is low. Therefore, it is desirable for the suspect to appoint a lawyer who has rich experience in criminal cases.
5. Conclusion
It is necessary to persuade a public prosecutor or judge to believe that there is no causes to detain the suspect in order to avoid detention or release him/her from detention. There is no doubt that supporting the claim that the suspect is unlikely to destroy or conceal evidence with objective materials is much more persuasive than only complaining that. In order to make and collect such materials, it is better for a lawyer to have time as much as possible, and it is necessary to hear from the suspect about the case enough and closely examine it. In that context, it is important to consult with a lawyer at an early stage. In criminal cases there are opportunities to release the suspect at each proceeding stage as seen above. Although there is a difficult case in release itself, we would like you to consult with our lawyers so that we can give you an explanation of such a difficult case and a perspective of the case.
Promptness is important for release activities in criminal cases. Please consult with AICHI Criminal Cases Law Firm which has rich experienced criminal lawyers in case where your family member is under arrest or detention.
