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.

(2) The measures by the Minister of Justice pursuant to the provisions of the preceding paragraph shall be the measures under any of the following items, except in the case prescribed in the following paragraph:

(i) sending the relevant documents to the Chief Prosecutor of the appropriate District Public Prosecutor's Office and ordering the collection of evidence that is necessary for cooperation through provision of evidence;
(ii) sending documents concerning a request for cooperation through provision of evidence to the National Public Safety Commission; or
(iii) sending documents concerning a request for cooperation through provision of evidence to the Commandant of the Japan Coast Guard or to the head of any other national agency to which persons prescribed in Article 190 of the Code of Criminal Procedure (Act No. 131 of 1948) who are to exercise the functions of judicial police officials belong.

(3) When the request for cooperation prescribed in paragraph (1) pertains to the provision of documents that are connected with a legal action and that are being retained by a court, a public prosecutor, or a judicial police officer, the Minister of Justice shall send the custodian of such documents the documents concerning the request for cooperation.

(4) When the Minister of Justice finds it necessary in order to take the measures prescribed in the preceding two paragraphs or in order to take other measures concerning cooperation through provision of evidence, he/she may conduct an inquiry into the whereabouts of the person concerned and other necessary matters.


(Measures by the National Public Safety Commission)
Article 7 Upon receiving documents sent under paragraph (2), item (ii) of the preceding Article, the National Public Safety Commission shall send the relevant documents to the appropriate prefectural police headquarters, and shall instruct that headquarters to collect the evidence necessary for cooperation through provision of evidence.


(Implementation of Cooperation)
Article 8 The provisions of Articles 7, 8, 10, 12, and 13 of the Act on International Assistance in Investigations and Other Related Matters shall apply mutatis mutandis to cooperation through provision of evidence based on a request set forth in Article 6, paragraph (1). In this case, the term "Article 5, paragraph (1), item (i)" in Article 7, paragraph (1) of said Act shall be deemed to be replaced with "Article 6, paragraph (2), item (i) of the Act on Cooperation with the International Criminal Court (Act No. 37 of 2007)," the term "the preceding Article" in paragraph (2) of said Article shall be deemed to be replaced with "Article 7 of the Act on Cooperation with the International Criminal Court," the term "Article 5, paragraph (1), item (iii)" in paragraph (3) of said Article shall be deemed to be replaced with "Article 6, paragraph (2), item (iii) of the Act on Cooperation with the International Criminal Court," and the phrase "specifically provided for in this Act" in Article 13 of said Act shall be deemed to be replaced with "provided for in Articles 8, 10, and 12 as applied mutatis mutandis pursuant to Article 8 of the Act on Cooperation with the International Criminal Court."


(Penal Provisions on the Submission of False Certificates)
Article 9 (1) When a person who has been requested to submit a certificate under the provisions of Article 8, paragraph (3) of the Act on International Assistance in Investigations and Other Related Matters as applied mutatis mutandis pursuant to the preceding Article has submitted a false certificate, he/she shall be punished by imprisonment with work for up to one year or a fine of up to 500,000 yen.

(2) The provisions of the preceding paragraph shall not apply if the act
constitutes a crime under the Penal Code (Act No. 45 of 1907) or under Chapter IV.


(Measures Upon Completion of a Disposition, etc.)
Article 10 (1) When the Chief Prosecutor has completed the collection of evidence that is necessary for cooperation through provision of evidence, he/she shall promptly send the collected evidence to the Minister of Justice, with his/her opinion attached thereto. The same shall apply when the head of a national agency provided for in Article 6, paragraph (2), item (iii) has completed the collection of evidence that is necessary for cooperation.

(2) When the Superintendent General of the Metropolitan Police Department or the chief of the Prefectural Police Headquarters has completed the collection of evidence that is necessary for cooperation, the Prefectural Public Safety Commission shall promptly send the collected evidence to the National Public Safety Commission, with its opinion attached thereto.

(3) When the National Public Safety Commission has received the evidence sent thereto under the preceding paragraph, it shall promptly send the same to the Minister of Justice, with its opinion attached thereto.

(4) A custodian of documents that are connected with a legal action who has received documents concerning a request for cooperation through provision of evidence sent thereto pursuant to the provisions of Article 6, paragraph (3), shall promptly send the relevant documents in his/her custody or certified copies thereof to the Minister of Justice, with his/her opinion attached thereto; provided, however, that when he/she finds it difficult to immediately send the same, he/she shall promptly notify the Minister of Justice to that effect.


(Conditions for the Provision of Evidence)
Article 11 Where the Minister of Justice will provide the ICC with evidence that has been sent thereto pursuant to the provisions of paragraph (1), (3) or (4) of the preceding Article, when he/she finds it necessary, he/she shall set conditions concerning the use or return of said 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.

Chapter II Cooperation with the International Criminal Court

Section 2 Provision of Evidence, etc.

Subsection 2 Judicial Examination of Evidence and Service of Documents

(Measures by the Minister of Justice)
Article 14 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 a judicial examination of evidence or the service of documents, when the case does not fall under any of the items of Article 6, paragraph (1), the Minister of Justice shall sent the documents concerning said request for cooperation to the appropriate district court.


(Measures by the Court, etc.)
Article 15 (1) The provisions of Article 1, paragraph (2), Article 1-2, paragraph (1) (excluding items (i), (v), and (vi)), and Articles 2 and 3 of the Act on Assistance Based on Commission by Foreign Courts (Act No. 63 of 1905) shall apply mutatis mutandis to cooperation through a judicial examination of evidence or the service of documents.

(2) When the district court provided for in the preceding Article has completed the judicial examination of evidence or the service of documents, it shall promptly send the evidence obtained through the judicial examination of evidence to the Minister of Justice or notify him/her of the results of the service of documents.


(Mutatis Mutandis Application)
Article 16 The provisions of Article 12 and Article 13, paragraph (1) (excluding item (iii)) shall apply mutatis mutandis to where the Minister of Justice has taken measures related to cooperation through a judicial examination of evidence or the service of documents under the provisions of Article 14. In this case, the term "paragraph (1), item (i) of said Article" in Article 12 shall be deemed to be replaced with "Article 6, paragraph (1), item (i)."

Chapter II Cooperation with the International Criminal Court

Section 2 Provision of Evidence, etc.

Subsection 3 Transfer of a Sentenced Inmate for Testimony, etc.

(Decision, etc. on the Transfer of a Sentenced Inmate for Testimony, etc.)
Article 17 (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 the transfer of a sentenced inmate for testimony, etc., when the case neither falls under Article 6, paragraph (1), item (iv) nor falls under any of the following items, and when the Minister of Justice finds it reasonable to comply with the request, he/she shall make an affirmative decision to transfer the sentenced inmate for testimony, etc., setting a period not to exceed thirty days during which the transfer of the domestic sentenced inmate will be in effect:

(i) when the domestic sentenced inmate does not consent in writing;
(ii) when the domestic sentenced inmate is under the age of 20; or
(iii) when a case connected with the crime committed by the domestic sentenced inmate is pending before a Japanese court.

(2) Where the Minister of Justice makes the affirmative decision set forth in the preceding paragraph, when he/she finds it necessary, he/she shall set conditions concerning the transfer of the sentenced inmate for testimony, etc.

(3) When the Minister of Justice decides not to effect the transfer of a sentenced inmate for testimony, etc. on finding that it is unreasonable to comply with the request set forth in paragraph (1), or when he/she sets the conditions set forth in the preceding paragraph, the Minister of Justice shall consult with the Minister of Foreign Affairs in advance.

(4) The provisions of Article 19, paragraph (3) of the Act on International Assistance in Investigations and Other Related Matters shall apply mutatis mutandis to a case in which the decision set forth in paragraph (1) has been made.


(Measures Concerning the Surrender of a Domestically Sentenced Inmate, etc.)
Article 18 (1) When the Minister of Justice has issued an order under the provisions of Article 19, paragraph (3) of the Act on International Assistance in Investigations and Other Related Matters as applied mutatis mutandis pursuant to paragraph (4) of the preceding Article, he/she shall send a written permit of custody to the Minister of Foreign Affairs.

(2) When the Minister of Foreign Affairs has been sent a permit of custody under the provisions of the preceding paragraph, he/she shall immediately send the same to the ICC.

(3) The warden of a penal institution who has been issued the order prescribed in paragraph (1) or an official of the penal institution who has been nominated by that warden shall promptly escort the domestic sentenced inmate to the place designated by the ICC, and shall surrender said domestic sentenced inmate to the person designated by the ICC who is in possession of the permit of custody.

(4) The provisions of Articles 21 and 22 of the Act on International Assistance in Investigations and Other Related Matters shall apply mutatis mutandis to a domestic sentenced inmate with regard to his/her surrender, pursuant to the provisions of the preceding paragraph, to the person designated by the ICC. In this case, the "transfer of a sentenced inmate for testimony" in Article 21 of said Act shall be deemed to be replaced with "transfer of a sentenced inmate for testimony, etc. as prescribed in Article 2, item (vii) of the Act on Cooperation with the International Criminal Court."

Article 93
Other forms of cooperation
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
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.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
10. (a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b) (i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for
assistance under this paragraph from a State which is not a Party to this Statute.

Article 96
Contents of request for other forms of assistance under article 93
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.