In today's era of 'hyper-connectivity', it is very difficult to maintain the status of a fugitive for a long time without any clues without the presence of a helper or prior preparation to actively assist in the escape life. From the past, through various media such as newspapers, broadcasts, and Internet postings, we have heard stories of 'villains' who use any means to escape the investigative net and take advantage of their own interests, but if we think about it, such 'success stories' probably only happened once. It is difficult to say that it is so difficult and rare that it is talked about a lot. In addition, the vast majority of those people are eventually traced after a long period of time on the run and appear before prosecutors and courts.
In our criminal law, when a suspect or defendant is detained through a warrant and their physical freedom is restricted, whether the suspect (defendant) runs away or is at risk of running away is considered a factor in determining whether the suspect or defendant is likely to run away (Criminal Procedure Act, Article 70, Paragraph 1, Item 3, Article 201 (1). In addition, when the court judges whether to grant bail to a defendant who has already been detained, bail must be granted in principle unless the defendant has exceptional grounds stipulated by law ('necessary bail', Article 95 of the Criminal Procedure Act). 'When there is sufficient reason to believe that the defendant is running away or is likely to run away (No. 3)', it is considered that there are grounds for disqualification from necessary bail.
In a criminal trial, if the court finds the defendant guilty of a crime on the sentencing date and sentences him to imprisonment (rather than probation), the court deems that the defendant may run away upon sentencing and is immediately detained by the court ( There are many cases of legal detention. Strictly speaking, the guilty verdict has not yet been confirmed, even though there is an opportunity and time to appeal (within 7 days from the date of sentencing). In various media, the sight of a 'villain' being found guilty and being dragged away in shackles may seem to many people to be an exhilarating moment, like a 'cider' where justice is realized, but it may be an exhilarating moment, like a 'cider' where justice is served, but it is a case of 'taking the side' for the benefit of the accused. From the perspective of a human lawyer, it is something he does not want to experience when his client (defendant) is sentenced to prison and detained in court. What would be even worse for the defendant and those around him?
The same applies to other concepts such as ‘concern about destruction of evidence,’ but it is not particularly easy to define what kind of situation is a situation where a suspect (defendant) is ‘at risk of fleeing.’ Except in cases where it is clear based on the relevant circumstances, such as an actual attempt to escape, it seems far-fetched to establish a quantitative and specific scale to determine the risk of escape and apply it in practice. In this area, the arguments of each judge who actually has to make a legal judgment (decision!) in each individual case feel like what is important.
In an individual case, a judgment as to whether a party has ‘fear of flight’ must be made by comprehensively considering various factors, such as factors unique to the actor and the degree of progress of the procedure prior to the time of judgment. For example, I believe that this should be done carefully, taking into account the changed lifestyles that have occurred as we enter modern society (long-term escape itself is generally not easy) and the strengthened capabilities of law enforcement agencies. Otherwise, if judgment is made based on a small number of standardized factors, there is concern that a conclusion in the direction of ‘imprisonment for the time being, but not restraint if there are exceptional circumstances’ may easily be drawn.
In particular, it should be avoided to use the fact that the suspect or defendant denies the criminal charges raised against them as a basis for immediately concluding that there is a risk of flight. One of the major principles in criminal procedures is that the entire investigation and trial process must be conducted without detention, and this is a principle derived from Article 12 on physical freedom under the Constitution, our highest law. Restrictions on physical freedom are the most immediate and significant restrictions on the exercise of the right to defense by parties involved in criminal proceedings.
The exercise of the right to defense by the suspect (defendant), who is a party to the criminal procedure, must be sufficiently guaranteed at all stages of the criminal procedure, from investigation to trial, and when the court of previous instance makes a judgment of guilt, this judgment must be continuously contested. This is especially true when sleeping. Nevertheless, in a situation where the guilty verdict has not yet been confirmed, immediately arresting the defendant in court because 'there is a risk that the defendant will run away to avoid punishment' seriously restricts in advance the ease of exercising the defendant's right to defense, which should be guaranteed to the same extent in subsequent proceedings. It is unfair because it brings about consequences.
Even if it sounds empty and out of touch with reality, when you stand at the defense table, you have no choice but to call out the ‘principle of investigation and trial without detention, which is the grand principle of criminal litigation.’
In our criminal law, when a suspect or defendant is detained through a warrant and their physical freedom is restricted, whether the suspect (defendant) runs away or is at risk of running away is considered a factor in determining whether the suspect or defendant is likely to run away (Criminal Procedure Act, Article 70, Paragraph 1, Item 3, Article 201 (1). In addition, when the court judges whether to grant bail to a defendant who has already been detained, bail must be granted in principle unless the defendant has exceptional grounds stipulated by law ('necessary bail', Article 95 of the Criminal Procedure Act). 'When there is sufficient reason to believe that the defendant is running away or is likely to run away (No. 3)', it is considered that there are grounds for disqualification from necessary bail.
In a criminal trial, if the court finds the defendant guilty of a crime on the sentencing date and sentences him to imprisonment (rather than probation), the court deems that the defendant may run away upon sentencing and is immediately detained by the court ( There are many cases of legal detention. Strictly speaking, the guilty verdict has not yet been confirmed, even though there is an opportunity and time to appeal (within 7 days from the date of sentencing). In various media, the sight of a 'villain' being found guilty and being dragged away in shackles may seem to many people to be an exhilarating moment, like a 'cider' where justice is realized, but it may be an exhilarating moment, like a 'cider' where justice is served, but it is a case of 'taking the side' for the benefit of the accused. From the perspective of a human lawyer, it is something he does not want to experience when his client (defendant) is sentenced to prison and detained in court. What would be even worse for the defendant and those around him?
The same applies to other concepts such as ‘concern about destruction of evidence,’ but it is not particularly easy to define what kind of situation is a situation where a suspect (defendant) is ‘at risk of fleeing.’ Except in cases where it is clear based on the relevant circumstances, such as an actual attempt to escape, it seems far-fetched to establish a quantitative and specific scale to determine the risk of escape and apply it in practice. In this area, the arguments of each judge who actually has to make a legal judgment (decision!) in each individual case feel like what is important.
In an individual case, a judgment as to whether a party has ‘fear of flight’ must be made by comprehensively considering various factors, such as factors unique to the actor and the degree of progress of the procedure prior to the time of judgment. For example, I believe that this should be done carefully, taking into account the changed lifestyles that have occurred as we enter modern society (long-term escape itself is generally not easy) and the strengthened capabilities of law enforcement agencies. Otherwise, if judgment is made based on a small number of standardized factors, there is concern that a conclusion in the direction of ‘imprisonment for the time being, but not restraint if there are exceptional circumstances’ may easily be drawn.
In particular, it should be avoided to use the fact that the suspect or defendant denies the criminal charges raised against them as a basis for immediately concluding that there is a risk of flight. One of the major principles in criminal procedures is that the entire investigation and trial process must be conducted without detention, and this is a principle derived from Article 12 on physical freedom under the Constitution, our highest law. Restrictions on physical freedom are the most immediate and significant restrictions on the exercise of the right to defense by parties involved in criminal proceedings.
The exercise of the right to defense by the suspect (defendant), who is a party to the criminal procedure, must be sufficiently guaranteed at all stages of the criminal procedure, from investigation to trial, and when the court of previous instance makes a judgment of guilt, this judgment must be continuously contested. This is especially true when sleeping. Nevertheless, in a situation where the guilty verdict has not yet been confirmed, immediately arresting the defendant in court because 'there is a risk that the defendant will run away to avoid punishment' seriously restricts in advance the ease of exercising the defendant's right to defense, which should be guaranteed to the same extent in subsequent proceedings. It is unfair because it brings about consequences.
Even if it sounds empty and out of touch with reality, when you stand at the defense table, you have no choice but to call out the ‘principle of investigation and trial without detention, which is the grand principle of criminal litigation.’
