Refusal of ICC request

Japan

Japan - Extradition Act 1953 EN

(Restrictions on extradition)

Article 2.

A fugitive shall not be surrendered in any of the following circumstances, provided that this shall not apply, in cases falling under items (3), (4), (8), or (9), when the treaty of extradition provides otherwise:

(1) When the offense for which extradition is requested is a political offense;

(2) When the request for extradition is deemed to have been made with a view to trying or punishing the fugitive for a political offense which he has committed;

(3) When the offense for which extradition is requested is not punishable by death, or by imprisonment for life or for a maximum term of three years or more by the laws, regulations or ordinances of the requesting country;

(4) When the act constituting the offense for which extradition is requested would not be punishable under the laws, regulations or ordinances of Japan by death or by imprisonment for life or for a maximum term of three years or more if the act were committed in Japan;

(5) When it is deemed that under the laws, regulations or ordinances of Japan it would be impossible to impose or to execute punishment upon the fugitive, if the act constituting the offense for which extradition is requested were committed in Japan, or if the trial therefor were held in a court of Japan;

(6) Except in the case of a fugitive who has been convicted of an offense for which extradition is requested by a court of the requesting country, when there is no probable cause to suspect that the fugitive has committed the act which constitutes an offense for which extradition is requested;

(7) When a criminal prosecution based on the act constituting an offense for which extradition is requested is pending in a Japanese court, or when a judgment in such a case has become final;

(8) When a criminal prosecution for an offense committed by the fugitive other than the offense for which extradition is requested is pending in a Japanese court, or when the fugitive has been sentenced to punishment by a Japanese court for such an offense and the execution of the sentence of the fugitive has not been completed or the sentence has yet to be non-executable;

(9) When the fugitive is a Japanese national.

Japan - ICC Cooperation Act 2007 EN

Chapter II Cooperation with the International Criminal Court

Section 2 Provision of Evidence, etc.

Subsection 1 Provision of Evidence

(Measures by the Minister of Justice)
Article 6 (1) Where the Minister of Justice has received documents sent by the Minister of Foreign Affairs pursuant to the provisions of Article 4 concerning a request for cooperation through provision of evidence, when the case does not fall under any of the following items, the Minister of Justice shall take the measures prescribed in the following paragraph or paragraph (3):

(i) when the request for cooperation competes with a request for assistance as prescribed in Article 1, item (i) of the Act on International Assistance in Investigations and Other Related Matters (Act No. 69 of 1980) (hereinafter referred to as "Investigation Assistance" in this item and Article 39, paragraph (1), item (ii)) and, where it is possible to give priority to such request for assistance pursuant to the provisions of the Statute, when the Minister of Justice finds it reasonable to provide said Investigation Assistance;
(ii) when complying with the request for cooperation would result in a breach of any of the obligations under international law prescribed in article 98, paragraph 1 of the Statute;
(iii) when complying with the request for cooperation would prejudice Japan's national security;
(iv) where the offense underlying the cooperation request is an offense prescribed in article 70, paragraph 1 of the Statute, when the act constituting the offense for which assistance is requested would not constitute a crime under the laws and regulations of Japan were it to have been carried out in Japan;
(v) when complying with the request for cooperation would risk obstructing an investigation or trial in a case that is connected with a crime other than the offense underlying the cooperation request, and that is being investigated by a Japanese public prosecutor, public prosecutor's assistant officer, or judicial police official or is pending before a Japanese court, and the Minister of Justice finds it unreasonable to immediately comply with said request; or
(vi) when there are other justifiable grounds for not immediately complying with the request for cooperation.

Chapter II Cooperation with the International Criminal Court

Section 2 Provision of Evidence, etc.

Subsection 1 Provision of Evidence

(Notification of Non-cooperation)
Article 12 After taking measures under the provisions of Article 6, paragraph (2), item (ii) or (iii) or paragraph (3) of said Article, when the Minister of Justice finds that the case falls under any of the provisions of paragraph (1), items (i) through (iv) of said Article and decides not to cooperate through provision of evidence, he/she shall notify the person who received the documents that were sent concerning the request for cooperation through provision of evidence to that effect without delay.
(Consultation with the Minister of Foreign Affairs, etc.)
Article 13 (1) The Minister of Justice shall consult with the Minister of Foreign Affairs in advance in a case that falls under any of the following items:

(i) when deciding not to cooperate through provision of evidence, on the basis that the case falls under any of the provisions of Article 6, paragraph (1), items (i) through (iii);
(ii) when postponing cooperation through provision of evidence, on the basis that the case falls under either of the provisions of Article 6, paragraph (1), item (v) or (vi); or
(iii) when setting the conditions set forth in Article 11.

(2) The provisions of Article 16, paragraph (2) of the Act on International Assistance in Investigations and Other Related Matters shall apply mutatis mutandis to where the Minister of Justice decides to take the measures set forth in any of the items of Article 6, paragraph (2) with regard to a request for cooperation through provision of evidence.

Japan - International Assistance Act 1980 (2006) EN

Chapter I General Provisions

Article 2 (Restrictions on Assistance)

Assistance shall not be provided in any of the following circumstances:

(i) When the offense for which assistance is requested is a political offense, or
when the request for assistance is deemed to have been made with a view to investigating a political offense;

(ii) Unless otherwise provided by a treaty, when the act constituting the offense for which assistance is requested would not constitute a crime under laws and regulations of Japan were it to be committed in Japan;

(iii) With respect to a request for examination of a witness or provision of articles of evidence, unless otherwise provided by a treaty, when the requesting country does not clearly demonstrate in writing that the evidence is essential to the investigation.

Chapter II Collection of Evidence

Article 15 (Notification When Assistance Is Not Provided)

When the Minister of Justice, after taking the measures set forth in paragraph (1), item (ii) or (iii) of Article 5, or in paragraph (2) of Article 5, deems it to be inappropriate to provide assistance, he/she shall, without delay, notify the person who has received the documents concerning the request for assistance to such effect .


Article 16 (Consultation)

(1) The Minister of Justice shall consult the Minister of Foreign Affairs when making a decision not to provide assistance upon finding that the request falls under item (i) of Article 4 or that honoring the request would be inappropriate, or when setting conditions in accordance with paragraph (5) of Article 14.

(2) When the Minister of Justice takes any of the measures set forth in the items of paragraph (1) of Article 5, he/she shall consult the National Public Safety Commission and the head of the national agency set forth in item (iii) of that paragraph, according to their jurisdiction, except when the agency to collect the evidence is clear from the documents pertaining the request for assistance, such as when the examination of a witness is requested .

Rome Statute

Article 90 Competing requests

1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person's surrender, notify the Court and the requesting State of that fact.

2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:

(a) The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or

(b) The Court makes the determination described in subparagraph (a) pursuant to the requested State's notification under paragraph 1.

3. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court's determination shall be made on an expedited basis.

4. If the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is admissible.

5. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State.

6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to:

(a) The respective dates of the requests;

(b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and

(c) The possibility of subsequent surrender between the Court and the requesting State.

7. Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person's surrender:

(a) The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court;

(b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question.

Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.

Article 93 Other forms of cooperation

4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.