Transfer of prisoners and extradition cases between Europe and Japan: legal and practical challenges

Abstract

This chapter explores the law and the practice of cooperation between Japan and European States in the two fields of extradition and transfers of prisoners. These areas of cooperation are considered particularly sensitive from a fundamental rights, and a sovereignity perspective because States are required to exercise on their territory one of the most coercive powers, restricting individuals' personal liberty, for another State's criminal justice objectives. Belgium and the UK are taken as case studies of European countries because they illustrate two diametrically opposite experiences in cooperating with Japan, especially with regard to the transfer of prisoners. The research relied on a hybrid methodology combining a textual analysis of national - Japanese, Belgian and UK - law and international law, and empirical collection of data via expert interviews. Our finding shows transfers and surrenders of persons seem to be quite mono-directional, Japan extraditing and transferring significantly more suspects/prisoners than it received. The legal framework remains in both cases a traditional international law one - CoE convention for transfers of prisoners and ad hoc agreements, or UN conventions, for extradition - which tend to privilege safeguard of States' sovereignty over effectiveness of cooperation. Japan maintains, at least on paper, a role for diplomatic authorities in Transfer of Prisoners. In practice nonetheless communication appear to work quite smoothly between Japanese and UK and Belgian authorities. Whereas the biggest obstacle to cooperation and trust-building as far as Transfer of Prisoners consist in legislative differences. While with the UK this form of cooperation worked quite smoothly, the difference in early release scheme regulation between Japan and Belgium significantly slowed down cooperation. As far as extradition, it is Japanese conservative approach, notably to the ban on extradition of nationality which accounts for the limited degree of cooperation.