Chapter II Cooperation with the International Criminal Court

Section 3 Surrender of an Offender Sought for Surrender, etc.

Section 4 Cooperation with Enforcement

(Requirements for Cooperation with Enforcement)
Article 38 (1) Where an offense underlying a surrender request constitutes a serious crime, cooperation with enforcement may be rendered, except in a case that falls under any of the following items:

(i) cooperation with enforcement entailing preservation for a forfeiture, when a case for the offense underlying the cooperation request is pending before a Japanese court; provided, however, that this shall not apply where the ICC has determined that the case is admissible pursuant to the provisions of article 17, paragraph 1 of the Statute or has commenced proceedings in the case;
(ii) cooperation with enforcement entailing preservation for a forfeiture, when a final and binding judgment has been issued by a Japanese court in a case connected with the offense underlying the surrender request; provided, however, that this shall not apply where the ICC has determined that the case is admissible pursuant to the provisions of article 17, paragraph 1 of the Statute or has rendered a judgment of conviction in the case;
(iii) cooperation with enforcement entailing preservation for a forfeiture in instances when, if a punishment were to be imposed in Japan for the offense underlying the cooperation request, the property connected with the request for cooperation with enforcement would not be subject to preservation for confiscation under Japanese laws and regulations (excluding instances where property connected with said request was obtained from a person who was harmed by the act constituting the offense underlying the cooperation request, when said property would not be subject to preservation for confiscation, on the basis that it belongs to said person or his/her general successor);
(iv) cooperation with enforcement entailing preservation for a reparations order that is equivalent to preservation for confiscation under Japanese laws and regulations in light of its contents and nature, in instances when, if a punishment were to be imposed in Japan for the offense underlying the cooperation request, the property connected with the request for cooperation with enforcement would not be subject to preservation for confiscation under Japanese laws and regulations (excluding instances where property connected with said request was obtained from a person who was harmed by an act constituting a serious crime and is to be returned to said person or his/her general successor by a reparations order, when said property would not be subject to preservation for confiscation, on the basis that the property belongs to such person); or
(v) cooperation with enforcement entailing preservation for a reparations order
that is equivalent to preservation for the collection of an equivalent value under Japanese laws and regulations in light of its contents and nature, when, if a punishment were to be imposed in Japan for the offense underlying the cooperation request, the property connected with said request
for cooperation with enforcement would not be subject to preservation for collection of equivalent value under Japanese laws and regulations.

(2) Where the offense underlying the surrender request is any of the crimes prescribed in article 70, paragraph 1 of the Statute, cooperation with enforcement may be given except in a case that falls under any of the following items:

(i) when, if the act constituting the offense underlying the surrender request were to be committed within Japan, it would be found impossible to impose a punishment under Japanese laws and regulations;
(ii) when a case connected with the offense underlying the surrender request is pending before a Japanese court, or when a final and binding judgment has been issued thereon by a Japanese court; or
(iii) cooperation with enforcement entailing preservation for a forfeiture in instances when, if a punishment were to be imposed in Japan for the offense underlying the cooperation request, the property connected with said request for cooperation with enforcement would not be subject to preservation for confiscation under Japanese laws and regulations (excluding instances where property connected with said request was obtained from a person who was harmed by the act constituting the offense underlying the cooperation request, when the property would not be subject to preservation for confiscation, on the basis that the property belongs to said person or his/her general successor).


(Measures by the Minister of Justice)
Article 39 (1) When 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 with enforcement, he/she shall, except in a case that falls under any of the following items, send the relevant documents to the Chief Prosecutor of the appropriate District Public Prosecutors Office and order him/her to take the necessary measures for cooperation with enforcement:

(i) when the case is found to fall under any of the items of paragraph (1) of the preceding Article or any of the items of paragraph (2) of the preceding Article;
(ii) when the request for cooperation with enforcement competes with a request for assistance under the provisions of Article 59, paragraph (1) of the Act on Punishment of Organized Crime and Control of Crime Proceeds (Act No. 136 of 1999; hereinafter referred to as the "Organized Crime Punishment Act") or a request for assistance under the provisions of Article 21 of the Act Concerning Special Provisions of the Narcotics and Psychotropics Control Act, etc. and Other Matters for the Prevention of Activities Encouraging Illicit Conduct and Other Activities Involving Controlled Substances through International Cooperation (Act No. 94 of 1991), or a request for Investigation Assistance, where it is possible to give priority to the relevant request pursuant to the provisions of the Statute, and when the Minister of Justice finds it reasonable to take the measures under said request;
(iii) when complying with the request for cooperation with enforcement would result in a breach of any of the obligations under international law prescribed in article 98, paragraph 1 of the Statute;
(iv) when complying with the request for cooperation with enforcement would risk of obstructing an investigation or trial in a case connected with a crime other than the offense underlying the cooperation request, which is being investigated by a Japanese public prosecutor, public prosecutor's assistant officer, or judicial police official, or which is pending before a Japanese court, and the Minister of Justice finds it unreasonable to immediately comply with said request; or
(v) when there are any other justifiable grounds for not immediately complying with the request for cooperation with enforcement.

(2) 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 render cooperation for cooperation with enforcement on the basis that the case falls under either item (ii) or (iii) of the preceding paragraph; or
(ii) when withholding an order under the provisions of the preceding paragraph on the basis that the case falls under any of the provisions of item (i) (limited to the portion pertaining to paragraph (1), item (i) or (ii) of the preceding Article), (iv), or (v) of the preceding paragraph.

(3) The provisions of Article 6, paragraph (4) shall apply mutatis mutandis to where an order under the provisions of paragraph (1) is issued or where any other measures are taken in connection with cooperation with enforcement.


(Measures by the Chief Prosecutor and Applications for Examination)
Article 40 (1) A Chief Prosecutor who has been issued an order under the provisions of paragraph (1) of the preceding Article shall cause a public prosecutor of his/her office to take the necessary measures for cooperation with enforcement, and shall retain the property connected with the implementation of cooperation with enforcement.

(2) When a request for cooperation with enforcement entails enforcing a final judgment for a fine, forfeiture, or reparations order, the public prosecutor set forth in the preceding paragraph shall file an application for examination with a court as to whether or not it is a case where cooperation with enforcement may be rendered. In this case, when the request entails the enforcement of a final judgment for a reparations order, the public prosecutor shall attach his/her opinion on whether it is equivalent to a final judgment of confiscation or that of collection of equivalent value under Japanese laws and regulations in light of the contents and nature of said reparations order.


(Examination by a Court, etc.)
Article 41 (1) A court shall, on the basis of the results of the examination, render the decisions specified in the following items in accordance with the cases listed in each of those items:

(i) when the application for examination set forth in paragraph (2) of the preceding Article is unlawful: a decision for dismissal;
(ii) when the case is one in which cooperation with enforcement may be rendered with regard to all or part of the final judgment connected with the request for cooperation with enforcement: a decision to that effect; and
(iii) when the case is not one in which cooperation with enforcement may be rendered with regard to any of the final judgment connected with the request for cooperation with enforcement: a decision to that effect.

(2) When a court renders the decision specified in item (ii) of the preceding paragraph with regard to a request for cooperation with enforcement of a final judgment for a reparations order, it shall indicate whether said final judgment is equivalent to a final judgment of confiscation or that of collection of equivalent value under Japanese laws and regulations, according to the contents and nature of said reparations order.

(3) When a court renders the decision specified in paragraph (1), item (ii) with regard to a request for cooperation with enforcement that entails enforcing a final judgment of forfeiture, it shall simultaneously indicate the amount of money in Japanese yen that is to be collected from the person subject to said final judgment in lieu of confiscation, in the event that it is not possible to enforce said final judgment due to loss, damage, or any other reason. The same shall apply where the decision specified in said item is rendered with regard to a request for cooperation with enforcement that entails enforcing a final judgment for a reparations order, when the court must indicate that said final judgment is equivalent to a final judgment of confiscation pursuant to the provisions of the preceding paragraph.

(4) Where a court renders the decision specified in paragraph (1), item (ii) with regard to a request for cooperation with enforcement that entails enforcing a final judgment of forfeiture, in instances when, if a punishment were to be imposed in Japan for the offense underlying the cooperation request, property connected with the request would be found not to be subject to a judicial decision for confiscation under Japanese laws and regulations (excluding instances where property connected with said request was obtained from a person who was harmed by the act constituting the offense underlying the cooperation request, when the property would be found not to be subject to preservation for confiscation, on the basis that the property belongs to said person or his/her general successor), the court shall simultaneously indicate such fact and the amount of money in Japanese yen that is to be collected from the person subject to said final judgment in lieu of enforcement of said final judgment.

(5) Where a court renders the decision specified in paragraph (1), item (ii) with regard to a request for cooperation with enforcement that entails enforcing a final judgment for a reparations order (limited to where the court is to indicate that said final judgment is equivalent to a final judgment for confiscation pursuant to the provisions of paragraph (2)), in instances when, if a punishment were to be imposed in Japan for the offense underlying the cooperation request, the property connected with the request would be found not to be subject to a judicial decision for confiscation under Japanese laws and regulations (excluding instances where property connected with said request was obtained from a person who was harmed by the act constituting the serious crime and should be returned to said person or his/her general successor by a reparations order, when the property would be found not to be subject to preservation for confiscation, on the basis that the property belongs to such person), the court shall simultaneously indicate such fact and the amount of money in Japanese yen that is to be collected from the person subject to said final judgment in lieu of enforcement of said final judgment.

(6) Where a court renders the decision specified in paragraph (1), item (ii) with regard to a request for cooperation with enforcement that entails enforcing a final judgment of forfeiture, when the court finds that a person by whom there are reasonable grounds to consider that property that is the subject matter of said final judgment or a superficies, mortgage, or any other right to such property is owned was unable to claim his/her right in the proceedings connected with said final judgment due to grounds not attributable to him/her, the court shall simultaneously indicate such fact and the amount of money in Japanese yen which is to be collected from the person subject to said final judgment in lieu of enforcement of said final judgment. The same shall apply where the court renders the decision specified in said item with regard to a request for cooperation with enforcement that entails enforcing a final judgment for a reparations order (limited to where the court is to indicate that said final judgment is equivalent to a final judgment for confiscation pursuant to the provisions of paragraph (2)).

(7) With regard to an examination under the provisions of paragraph (2) of the preceding Article, the decision specified in paragraph (1), item (ii) may not be rendered for a request for cooperation with enforcement that entails enforcing a final judgment of forfeiture when participation in the proceedings of the case for which the application for examination was filed was not permitted for a person by whom there are reasonable grounds to consider that property connected with said request or a superficies, mortgage, or any other right to such property is owned, or for an obligee effecting a seizure or an obligee effecting a provisional seizure where a commencement order for a compulsory auction has been issued or a seizure or provisional seizure through compulsory execution has been executed against such property or right prior to its preservation due to forfeiture. The same shall apply to the decision specified in said item in connection with a final judgment for a reparations order that is found to be equivalent to a final judgment for confiscation under Japanese laws and regulations in light of its contents and nature.

(8) The provisions of Article 59, paragraph (3) and Article 62, paragraph (3) of the Organized Crime Punishment Act shall apply mutatis mutandis to where a court renders the decision specified in paragraph (1), item (ii) with regard to a request for cooperation with enforcement that entails enforcing a final judgment of forfeiture (including where, when the court renders the decision specified in said item with regard to a request for cooperation with enforcement that entails enforcing a final judgment for a reparations order, the court is to indicate that said final judgment is equivalent to a final judgment for confiscation pursuant to the provisions of paragraph (2)), the provisions of paragraphs (5) and (7) through (9) of said Article shall apply mutatis mutandis to an examination under the provisions of paragraph (2) of the preceding Article with regard to a request for cooperation with enforcement, and the provisions of Article 63 of the Organized Crime Punishment Act shall apply mutatis mutandis to an appeal against the decision on the application for examination set forth in paragraph (2) of the preceding Article, respectively.


(Effect of Decisions on the Implementation of Cooperation with Enforcement, etc.)
Article 42 (1) Where the decision specified in paragraph (1), item (ii) of the preceding Article has become final and binding with regard to a request for cooperation with enforcement that entails enforcing any of the final judgments listed in the following items, said final judgments shall be deemed to be the final judgments rendered by a Japanese court that are respectively specified in those items, in terms of the implementation of cooperation with enforcement:

(i) a final judgment for a fine: a final judgment for a fine;
(ii) a final judgment of forfeiture and a final judgment for a reparations order that has been indicated to be equivalent to a final judgment for confiscation pursuant to the provisions of paragraph
(2) of the preceding Article (excluding that set forth in the following item): a final judgment for confiscation;
(iii) a final judgment of forfeiture or a final judgment for a reparations order that has been indicated to be equivalent to a final judgment for confiscation pursuant to the provisions of paragraph (2) of the preceding Article and for which the amount of money in Japanese yen to be collected has been indicated pursuant to the provisions of paragraphs (4) through (6) of said Article: a final judgment for collection of the equivalent value; and
(iv) a final judgment for a reparations order that has been indicated to be equivalent to a final judgment for collection of an equivalent value pursuant to the provisions of paragraph (2) of the preceding Article: a final judgment for collection of an equivalent value.

(2) Where cooperation with enforcement is implemented with regard to the final judgment set forth in item (ii) of the preceding paragraph, when it is not possible to enforce said final judgment against the property subject to the forfeiture or reparations order due to loss, damage, or any other reason, notwithstanding the provisions of said paragraph, the final judgment shall be deemed to be a final judgment rendered by a Japanese court to the effect that the amount indicated pursuant to the provisions of paragraph (3) of the preceding Article is to be collected from the person subject to said final judgment.

(3) With regard to property connected with the implementation of cooperation through the enforcement of the final judgment set forth in paragraph (1), item (ii) that is not suitable to be sent to the ICC, a public prosecutor may sell said property. In this case, the proceeds therefrom shall be deemed to be property connected with the implementation of cooperation through the enforcement of said final judgment.

(4) When the Chief Prosecutor has finished implementing cooperation with enforcement that entails enforcing a final judgment for a fine, forfeiture, or reparations order, he/she shall promptly deliver the property connected with the implementation of cooperation with enforcement to the Minister of Justice.

(5) The provisions of Article 65 of the Organized Crime Punishment Act shall apply mutatis mutandis to rescission of the decision specified in paragraph (1), item (ii) of the preceding Article in connection with the request for cooperation with enforcement prescribed in paragraph (1). In this case, the term "confiscation" in Article 65, paragraph (2) of the Organized Crime Punishment Act shall be deemed to be replaced with "a fine, confiscation,"; and the term "Article 63" in paragraph (3) of said Article shall be deemed to be replaced with "Article 63 as applied mutatis mutandis pursuant to Article 41, paragraph (8) of the Act on Cooperation with the International Criminal Court (Act No. 37 of 2007)."


(Request for Preservation for Confiscation)
Article 43 (1) When a request for cooperation with enforcement is a request for preservation for a forfeiture or when it is a request for preservation for a reparations order that is found to be equivalent to preservation for confiscation under Japanese laws and regulations in light of its contents and nature, the public prosecutor shall request the judge to issue a protective order in anticipation of confiscation to prohibit the disposition of property connected with said request for cooperation with enforcement. In this case, when the public prosecutor finds it necessary, he/she may request the judge to issue an ancillary protective order to prohibit the disposition of a superficies, mortgage, or any other right that exists to such property.

(2) After the application for examination set forth in Article 40, paragraph (2) has been filed, a disposition to preserve the property for the forfeiture or reparations order under the preceding paragraph shall be rendered by the court that has received the application for examination.


(Protective Order in Anticipation of Confiscation)
Article 44 (1) When a court or a judge has received a request under the provisions of the first sentence of paragraph (1) of the preceding Article, when the court or the judge finds that the case does not fall under any of the items of Article 38, paragraph (1) nor any of the items of paragraph (2) of said Article, the court or the judge shall issue a protective order in anticipation of confiscation to prohibit the disposition of property pertaining to said request, pursuant to the provisions of this Section.

(2) Where a court or a judge has issued or intends to issue a protective order in anticipation of confiscation with regard to property to which there exists superficies, mortgage, or any other rights, when the court or the judge finds that there are reasonable grounds to consider that such rights will be extinguished through the enforcement of a forfeiture and when it is necessary for such enforcement, or when the court or the judge finds that there are reasonable grounds to consider that said right is fake, the court or the judge may, at the request of the public prosecutor, issue an ancillary protective order separately to prohibit the disposition of such rights.

(3) The provisions of Article 22, paragraphs (3), (4), and (6) and Article 23, paragraph (6) of the Organized Crime Punishment Act shall apply mutatis mutandis to a protective order in anticipation of confiscation under paragraph (1) or to an ancillary protective order under the preceding paragraph. In this case, the terms "defendant" and "charged fact" in Article 22, paragraph (3) of the Organized Crime Punishment Act shall be deemed to be replaced with "person who would be subject to the judicial decision of forfeiture or judicial decision for a reparations order prescribed in Article 2, item (x) of the Act on Cooperation with the International Criminal Court" and "offense underlying the cooperation request prescribed in item (xii) of said Article," respectively; the phrase "paragraph (1) or (2)" in paragraph (4) of said Article shall be deemed to be replaced with "Article 44, paragraph (1) or (2) of the Act on Cooperation with the International Criminal Court"; and the phrase "paragraph (1) or (4)" in Article 23, paragraph (6) of the Organized Crime Punishment Act shall be deemed to be replaced with "Article 43, paragraph (1) of the Act on Cooperation with the International Criminal Court."

(4) The protective order in anticipation of confiscation set forth in paragraph (1) and the ancillary protective order set forth in paragraph (2) may be issued even before the hearing prescribed in article 61, paragraph 1 of the Statute is held at the ICC.

(5) The provisions of Article 23, paragraph (7) and Article 68 of the Organized Crime Punishment Act shall apply mutatis mutandis to a protective order in anticipation of confiscation in the case set forth in the preceding paragraph. In this case, the phrase "institution of prosecution" and "defendant" in Article 23, paragraph (7) of the Organized Crime Punishment Act shall be deemed to be replaced with "commencement of the hearing prescribed in article 61, paragraph 1 of the Rome Statute of the International Criminal Court" and "person subject to that hearing," respectively; the phrases "a request for assistance through preservation for confiscation or collection of an equivalent value is made in a case for which prosecution has not been instituted," "requesting country," and "that prosecution has been instituted" in Article 68, paragraph (1) of the Organized Crime Punishment Act shall be deemed to be replaced with "a request for cooperation with enforcement prescribed in Article 2, item (x) of the Act on Cooperation with the International Criminal Court entailing preservation for a forfeiture or for a reparations order prescribed in said item is made in a case for which the hearing prescribed in article 61, paragraph 1 of the Rome Statute of the International Criminal Court has not been commenced," "International Criminal Court," and "that the hearing has been commenced," respectively; and the phrases "requesting country" and "prosecution cannot be instituted" in paragraph (2) of said Article shall be deemed to be replaced with "International Criminal Court" and "the hearing prescribed in article 61, paragraph 1 of the Rome Statute of the International Criminal Court cannot be held," respectively.

(6) The judicial decision for a renewal under the provisions of Article 68, paragraph (2) of the Organized Crime Punishment Act as applied mutatis mutandis pursuant to the preceding paragraph shall become effective at the time when the public prosecutor is notified thereof.


(Request for Preservation for the Collection of an Equivalent Value)
Article 45 (1) When a public prosecutor finds that a request for cooperation with enforcement entails preservation for a reparations order and is equivalent to preservation for the collection of an equivalent value under Japanese laws and regulations in light of its contents and nature, he/she shall request the judge to issue a protective order in anticipation of collection to prohibit the person who would be subject to the judicial decision for a reparations order from disposing of his/her property.

(2) The provisions of Article 43, paragraph (2) shall apply mutatis mutandis to a disposition concerning preservation for a reparations order under the preceding paragraph.


(Protective Order in Anticipation of Collection)
Article 46 (1) Where a court or a judge has received a request under the provisions of paragraph (1) of the preceding Article, when the court or the judge finds that the case does not fall under any of the items of Article 38, paragraph (1) nor any of the items of paragraph (2) of said Article, the court or the judge shall issue an protective order in anticipation of collection to prohibit the person who would be subject to the judicial decision of a reparations order from disposing of his/her property.

(2) The provisions of Article 22, paragraph (4), Article 23, paragraph (6), and Article 42, paragraphs (2) through (4) of the Organized Crime Punishment Act shall apply mutatis mutandis to the protective order in anticipation of collection set forth in the preceding paragraph. In this case, the phrase "paragraph (1) or (2)" in Article 22, paragraph (4) of the Organized Crime Punishment Act shall be deemed to be replaced with "Article 46, paragraph (1) of the Act on Cooperation with the International Criminal Court"; the phrase "paragraph (1) or (4)" in Article 23, paragraph (6) of the Organized Crime Punishment Act shall be deemed to be replaced with "Article 45, paragraph (1) of the Act on Cooperation with the International Criminal Court"; the term "defendant" in Article 42, paragraphs (3) and (4) of the Organized Crime Punishment Act shall be deemed to be replaced with "person who would be subject to the judicial decision for a reparations order prescribed in Article 2, item (x) of the Act on Cooperation with the International Criminal Court," and the term "charged fact" in said paragraph shall be deemed to be replaced with "offense underlying the cooperation request prescribed in item (xii) of said Article."


(Mutatis Mutandis Application)
Article 47 In addition to what is specially provided for in this Section, the provisions of Chapter III, Chapter IV (excluding Articles 22, 23, 32, 33, 42, 43, 47, and 48), and Articles 69 through 72 of the Organized Crime Punishment Act, the provisions of the Code of Criminal Procedure (limited to Part I, Chapters II and V through XIII, Part II, Chapter I, Part III, Chapters I and IV, and Part VII), the provisions of laws and regulations on the costs of criminal procedure and the Act on Emergency Measures in Criminal Procedure to Confiscate Items Owned by Third Parties (Act No. 138 of 1963) shall apply mutatis mutandis to the examination, a disposition, or issuance of a warrant by a court or a judge, a disposition by a public prosecutor or a public prosecutor's assistant officer, or participation of an interested party in an examination by a court, and the provisions of Article 8, paragraph (2) and Article 11, paragraphs (1) and (2) of the Act of Extradition shall apply mutatis mutandis to measures taken where a request for cooperation with enforcement has been accepted, unless contrary to the nature thereof, respectively.


(Delegation to Cabinet Order)
Article 48 In addition to what is provided for in this Section, matters related to a disposition of delinquency that are necessary with regard to the adjustment of procedures between a prohibition on disposition under a protective order in anticipation of confiscation and a disposition of delinquency, shall be specified by Cabinet Order.

Article 109
Enforcement of fines and forfeiture measures
1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.
2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.
3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.