German-Japanese Symposium at the University of Kumamoto

The permissibility of criminal procedural data storage for future criminal proceedings in Germany and Japan

A German-Japanese symposium on criminal procedural law was held at the University of Kumamoto from 11 to 12 October 2019. Titled "The permissibility of criminal procedural data storage for the benefit of future criminal proceedings in Germany and Japan", the symposium dealt with the increasingly important field of precautionary criminal prosecution based on two examples: DNA analysis and data retention. The symposium was organized by Ass. Professor Dr. Hiromi Naito, University of Kumamoto and Professor Dr. Karsten Gaede, Bucerius Law School. Research Assistant Marc-Philipp Bittner provided support on behalf of Bucerius Law School.

On the first day of the event, the Faculty of Law of the University of Kumamoto was presented to the German delegation. This was followed by a preparatory working session with all speakers. The participants made extensive use of the opportunity for professional exchange in this smaller group.

The public symposium took place on the second day of the event. First, Naito and Gaede welcomed the participants. On this occasion, Gaede emphasized the importance of the almost decade-long cooperation with Naito for the success of the conference and highlighted his one-year research stay at Bucerius Law School the previous year. Naito then gave a foreword explaining the reasons for and goals of the conference.

This was followed by the first lecture of the day by Naito. He presented the legal framework for DNA analyses in Japanese criminal proceedings and explained their practical implementation. The German participants were particularly interested in the fact that Japanese case law recognizes an encroachment on fundamental rights only when DNA samples are first taken, while their storage and later use is no longer considered an encroachment. Naito noted that more and more scholars oppose this doctrine.

In the second lecture, Gaede spoke on the collection and storage of DNA identification patterns for future criminal proceedings in Germany. At the beginning, he explained the concept of § 81g StPO (Strafprozessordnung, German Code of Criminal Procedure) as well as its formal and material prerequisites. He then assessed whether § 81g StPO contained a legitimate provision that could set an example in other cases of precautionary criminal prosecution. Gaede came to a split verdict: He found the extension of investigative measures in precautionary criminal prosecution to be legitimate in some instances. However, he demanded these measures be firmly bound by statutory law and tied to special thresholds, depending on the specific fundamental rights affected, since there is no concrete suspicion of a crime in precautionary criminal prosecution. The German provision could be praised for recognizing the need for regulation and limitation. However, he criticized its overly extensive scope of application. In all, § 81g StPO could be regarded only as an imperfect example for adequate precautionary criminal prosecution. The lecture was followed by numerous questions. The Japanese audience showed an interest in the role and effectiveness of the exclusive competence of judges in German criminal proceedings. Differing views on the relationship between technically feasible and legally permissible measures among the participants from Germany and Japan emerged during the discussion.

After a short break, the second part of the symposium followed. Naito reopened the symposium, now with a lecture on telecommunications surveillance in Japan. He explained that, in contrast to Germany, there was a lack of dedicated regulations on the subject. In particular, the deletion of stored telecommunications data was not regulated in Japan. Naito was critical of the fact that in certain cases even the contents of telecommunications processes (such as browser history) could be monitored. Additionally, he observed a lack of critical discussion of the topic in Japan.

Next, Professor Dr. Jens Puschke, LL.M. (King's College), Philipps-University Marburg contributed a lecture on data retention in Germany. Puschke gave an overview of the German legal framework and the checkered history of data retention in the case law of the German Federal Constitutional Court and the European Court of Justice as well as in the executive branch. This was followed by a closer look at the contents of the case law of the Federal Constitutional Court and the European Court of Justice. Here, Puschke found wide-ranging agreement. He stressed that the principle of proportionality played a decisive role in the inevitable balancing between freedom and security. After explaining alternatives to data retention, Puschke concluded that the previous attempts of the German legislator to introduce data retention could be regarded as a failure.

Afterwards, the audience discussed whether the German and European socio-political premise that comprehensive data retention has a negative influence on the exercise of individual freedoms also applied in Japan. Naito explained that in Japan, too, there were some concerns about comprehensive data storage. In principle, however, the Japanese population's trust in the state would be high. Once again, different cultural and socio-political premises came to light. The German speakers stressed that the balancing of freedom and security was subject to debate in Germany, as well.

After another break, Professor Dr. Mitsuru Nozawa, University of Kyushu rounded off the conference with a lecture on substantive law. He observed a tendency to shift criminal liability forward in substantive criminal law in both Japan and Germany. For example, a recent amendment to Japanese criminal law had introduced norms focusing on terrorist groups and organized crime. Nozawa criticized their extensive scope of application and pointed out contradictions. According to his analysis, the latent goal of the norm is not the punishment of preparatory acts, but the surveillance of citizens under the pretense of criminal prosecution.

The organizers thanked Ass. Professor Kazushige Doi, LL.M. (Marburg), University of Kitakyushu for the excellent simultaneous translation of the symposium. In the evening, participants exchanged further ideas over a traditional Japanese dinner.

Overview of the speakers:

Author

Marc-Philipp Bittner (Research Assistant)

Hamburg