Does foreigner privilege exist in Japan? Statistics, interpreting, intent and culture

“Foreign nationals are not prosecuted in Japan, even when arrested.” “Foreigners have special privileges here.” Such claims have grown common, and families who come to us for advice ask whether they are true.

The conclusion first: no such privilege exists. The official statistics show foreign nationals are more likely to be prosecuted, more likely to be detained, and — on top of any criminal penalty — face loss of their status of residence (在留資格, zairyu shikaku).

That does not mean nothing can be done. The opposite is true: these cases contain an issue that never arises between Japanese parties — interpretation. Below we test the “foreigner privilege” narrative against the statistics, then set out what defence counsel can contest, and how.

Key points

• In the 2023 (Reiwa 5) statistics, the prosecution rate for Penal Code offences was 36.9% overall against 41.1% for visiting foreign nationals: foreign nationals are more likely to be prosecuted, not less.
• The rate for special-statute offences looks lower only because of the weight of one charge, violation of the Immigration Control Act. Exclude those cases and the gap narrows to 0.1 percentage points.
• Most non-prosecutions in immigration cases are not an absence of sanction. Deportation (退去強制, taikyo kyosei) is imposed instead of criminal punishment.
• Foreign suspects and defendants are more readily detained, less readily granted bail, and lose their status of residence on conviction. The burden is heavier.
• The structural weaknesses of interrogation interpreting can be attacked. Even after a statement is signed, there is often room to contest intent and to place cultural background properly before the court.

1. “Foreigners are almost never prosecuted” is contradicted by the statistics

The figures below are for 2023, from the Ministry of Justice White Paper on Crime, Reiwa 6 edition.

Category	All cases	Visiting foreign nationals
Prosecution rate, Penal Code offences	36.9%	41.1%
Prosecution rate, special-statute offences	45.4%	41.9%
Special-statute offences, excluding Immigration Control Act violations	—	0.1 percentage points from the overall figure

For Penal Code offences, visiting foreign nationals exceed the overall rate by 4.2 percentage points. Over the past ten years the overall figure has stayed in the 30% range and the foreign national figure in the 40% range, with no year in which the two reversed.

Only for special-statute offences is the foreign national rate lower, by 3.5 percentage points — and excluding violations of the Immigration Control Act (入管法, Nyukanho; formally the Immigration Control and Refugee Recognition Act), that gap shrinks to 0.1 points. The difference is produced not by being a foreign national, but by one single charge being present in enormous volume.

2. Why, then, does it look as though there are so many non-prosecutions?

(1) The mix of charges is different

In 2023, prosecutors’ offices disposed of 17,512 persons whose suspect was a visiting foreign national — 6.1% of the 285,423 persons disposed of in total. By nationality, newly received cases were 37.9% Vietnamese, 18.9% Chinese and 5.3% Brazilian; among Vietnamese nationals the most frequent charge was violation of the Immigration Control Act.

When one charge fills the population in that volume, comparing aggregates simply lets the disposal policy for that charge dominate the total. Comparing totals without matching charges is not sound statistics.

(2) Deportation is a sanction in place of punishment

This is the essential point. In case types such as illegal overstay (Immigration Control Act, Article 24, item 4(ro)), removing the person from Japan is often preferred over imposing a criminal penalty. The prosecutor then issues a decision not to prosecute (不起訴処分, fukiso shobun) by way of suspension of prosecution (起訴猶予, kiso yuyo) — Article 248 of the Code of Criminal Procedure, where “prosecution is not considered necessary” — and the person is handed to the immigration authorities.

A deported person is barred from landing in Japan for five years as a rule, or ten where there is a prior deportation record or similar circumstance (Immigration Control Act, Article 5, paragraph 1, item 9). Livelihood, family life and employment are all lost.

This is where “non-prosecution means no consequences” goes wrong. The consequence is borne in a different procedure, one that replaces punishment and is sometimes heavier than it.

(3) Evidentiary obstacles and inability to prosecute

These cases carry evidentiary difficulties absent between Japanese parties: the reliability of statements given through an interpreter, evidence located abroad, accomplices outside Japan, and loss of contact once the suspect leaves. All push toward more dispositions for insufficient suspicion and other non-prosecutions.

That is not favourable treatment, but the result of the investigating authorities being unable to prove their case or advance the procedure.

(4) The statistical definitions differ

“Visiting foreign nationals” is a statistical category excluding permanent residents, special permanent residents and personnel connected with the United States Forces in Japan, among others; the underlying population differs in nature from that used for Japanese nationals. The rate on the Japanese side also moves substantially depending on whether Road Traffic Act violations — overwhelmingly disposed of by summary prosecution — are counted. Comparisons that lift one part of a chart without aligning these definitions circulate widely.

3. Foreign nationals in fact bear disadvantages that stack up

In our experience, this is much closer to the reality.

First, detention. Foreign suspects are more readily ordered into pre-indictment detention for having no fixed residence (Code of Criminal Procedure, Article 60, paragraph 1, item 1) or probable cause to suspect flight (same paragraph, item 3).

Second, bail. In assessing the exclusionary grounds for bail as of right (Article 89) and discretionary bail (Article 90), a life based abroad, or the prospect of losing status of residence, tends to be weighted heavily as a flight risk.

Third, what follows conviction. For drug-related offences a suspended sentence is still a ground for deportation (Immigration Control Act, Article 24, item 4(chi)). The same applies to a custodial sentence (拘禁刑, kokinkei — the unified custodial penalty newly introduced in Japan in June 2025) of indefinite duration or exceeding one year (same item, (ri); persons granted suspension of the whole sentence are excluded). Even where no ground for deportation applies directly, a conviction weighs against the person when renewal or change of status of residence is assessed, and continued residence often becomes difficult.

On identical facts, where a Japanese national’s case ends in a fine or a suspended sentence, a foreign national bears the criminal disposition plus loss of status of residence plus a period of denial of landing. “Privilege” does not describe that.

4. The one point in the debate that deserves attention

The debate does contain one observation worth examining: the reasons for a decision not to prosecute are not published, so the prosecutor’s judgment cannot be verified from outside. That opacity is undeniably fertile ground for speculation.

But it is not specific to foreign nationals: it is a structural feature of Japanese criminal justice as a whole — prosecutorial discretion (Code of Criminal Procedure, Article 248) combined with non-disclosure of the reasons for a disposition. And “it cannot be verified” is no basis for asserting “they are treated favourably”. That is a question of where the burden of proof lies.

There is also a real difficulty on the victim’s side: once an offender has been deported, civil damages become impossible to recover in practice. That is not a privilege but a gap in the system for supporting crime victims, and the remedy it calls for points in an entirely different direction.

5. This is where the practical work begins

There is no foreigner privilege. Precisely for that reason, counsel must exhaust the defences specific to these cases — above all, interpretation.

The interpreter at an interrogation is not chosen by the suspect: the investigating authority appoints them and pays the fee. A court interpreter operates under Article 74 of the Court Act and Articles 175 and following of the Code of Criminal Procedure, serving under oath because the provisions on expert examination apply mutatis mutandis (Article 178). No provision of that Code directly regulates an interpreter at the investigation stage. There is no oath, and no procedure for disqualification or challenge.

The way a statement is produced also leaves room for a double displacement: (1) the investigator drafts it in Japanese; (2) the interpreter renders it orally and reads it back; (3) the suspect signs and seals a Japanese document he cannot himself read. Without audio-visual recording, no means exists to reconstruct that process afterwards.

6. Even after a statement has been taken, it can be contested

Clients often ask: I have already signed the statement, is it too late? It is not.

(1) Translation has no complete equivalence

In a state compensation claim handled by the author, Professor Shugo Hotta of the School of Law at Meiji University, Director of its Institute of Law and Language Sciences, prepared an expert opinion. The issue was the meaning of a message sent in Japanese by a client whose native language was Chinese.

The opinion sets out the position in linguistics and translation studies: complete synonyms do not exist even within one language, and equivalence of meaning is all the more lacking between languages. Neither formal equivalence, which reproduces the form of the original, nor dynamic equivalence, which prioritises its meaning and effect, achieves it.

The opinion then analysed the utterance itself. Take the Japanese verb 捨てる (suteru, “to throw away, to discard”). In Chinese, when 丟 takes a person as its object, using it of a romantic relationship to mean “to break it off unilaterally” is not ordinary usage; 甩 is the word normally chosen. So a speaker with the sense of 甩 in mind would not have selected 捨てる. The same Japanese sentence yields a completely different meaning depending on whether it is read with a native speaker’s ear or as a literal rendering out of the speaker’s own language.

This is also what happens daily in interrogation rooms.

(2) “Yes” is not necessarily agreement

The opinion turns next, from the standpoint of pragmatics, to the danger of short responses, citing a homicide case in which the American linguist Prince was involved.

A recording existed in which an alleged accomplice said, in substance, “and so we killed that X”, and the defendant answered “Yeah”. The authorities argued this was an admission of having killed together. In pragmatics two readings both stand: a response affirming what was said, or a mere back-channel uttered to keep the conversation going. The court accepted that analysis and acquitted the defendant.

The same applies to short responses in the suspect’s own language — the Japanese はい (hai, “yes”) an interpreter renders back, or equivalents such as Chinese 是, 对 and 嗯. Whether such a response was agreement, a signal of having heard, or mere back-channelling cannot be distinguished from a Japanese-language statement. Yet on the face of that statement it can become a sentence reading “that is correct, it was me”.

(3) How this is built into an argument

Defence activity proceeds as follows.

• Request disclosure of the interrogation’s audio-visual recording media as evidence of a specified category (Code of Criminal Procedure, Article 316-15).
• Where media exist, verify word for word what the interpreter rendered and compare it against the written statement.
• Request examination of the interrogation interpreter as a witness.
• Obtain a linguist’s expert opinion and tender it in evidence; where consent to admission is not obtained, request examination of the expert as a witness.
• On that footing, contest the voluntariness of the statement (Code of Criminal Procedure, Article 319, paragraph 1) and its credibility.

A statement is not immovable evidence merely because it bears a signature and seal. If what was rendered, and how, can be identified specifically, room to contest it remains.

7. Contesting intent

Here intent is contested in ways that differ from cases involving Japanese nationals.

First, awareness of the facts is itself recorded through an interpreter. A line reading “I knew” may in truth be a translation back from “I found out later” or “I thought it might possibly be so”. Where conditional intent is the issue — drug couriering, the collector and withdrawer roles in organised special fraud (受け子・出し子, ukeko and dashiko), facilitation of illegal employment, use of forged documents — that one line can decide the outcome.

Second, awareness of normative elements of the offence. Whether employment was unlawful, or a substance a controlled drug, presupposes understanding of Japanese legal institutions. The system of statuses of residence, permission to engage in activities outside the scope of a status, and the regulation of waste disposal, firearms and swords, and the adult entertainment business often have no counterpart in the person’s home country, or differ from it substantially.

Third, the possibility of awareness of illegality. Article 38, paragraph 3 of the Penal Code provides that a person cannot be held to have lacked criminal intent by reason of not knowing the law, while allowing punishment to be reduced according to the circumstances. There are nonetheless decided cases denying culpability for intent where there was reasonable ground for the absence of that awareness, or treating it as a significant sentencing factor. Where the person was given an incorrect explanation by a public agency or an employer, there is room to argue from this angle.

8. Contesting culture and custom

Raising culture and custom is often received as excuse-making. As defence technique, three levels must be distinguished.

The first is awareness of the facts. Where conduct lawful, or in practice tolerated, at home is regulated in Japan, how the person understood its significance goes to the content of intent itself.

The second is communication. As above, the same word carries a different meaning depending on its sense in the speaker’s native language. A record stating that the person “apologised” or “admitted it” may in fact reflect a response style aimed at avoiding confrontation.

The third is sentencing. The course of events, conditions in the sending country, the circumstances of coming to Japan and the family situation are all sentencing considerations. Here cultural background is presented not as a reduction of responsibility, but as the context that makes the conduct intelligible.

At none of these levels do we argue that conduct should be excused because the culture is different. That is not the position of this office; such an argument will not succeed, and should not. What is contested is one point only: whether the awareness Japanese law requires was truly present in this person, at that moment.

9. Contesting intent in the criminal case also defends the immigration proceedings

Looking at the criminal proceedings alone is not enough. We work with three lines of defence in mind.

The first is contesting intent and negligence within the criminal proceedings.

The second is the deportation procedure. Immigration practice has long held that neither intent nor negligence is a requirement when a ground for deportation is assessed. Against that, the author is arguing, in a case currently pending, that the principle of culpability should extend to administrative dispositions that are sanctioning in character. This is a live argument and the outcome is not settled.

The third is special permission to stay (在留特別許可, zairyu tokubetsu kyoka): extracting comparable circumstances from the permission examples published by the Immigration Services Agency and seeking permission on the basis of equal treatment.

Contesting intent thoroughly at the criminal stage, and leaving a record of it, also prepares the second and third lines. Conceding lightly there destroys the foundation for the arguments that follow.

The objective should therefore be set not at a suspended sentence, but at a decision not to prosecute before indictment. Since there are case types in which residence cannot continue even with a suspended sentence, setting the objective wrongly can cost the client their life in Japan itself.

10. Frequently asked questions

Q1. I have heard foreign nationals are more likely to avoid prosecution. Is that true?

For Penal Code offences the statistics show a higher prosecution rate for foreign nationals (in 2023, 36.9% overall against 41.1% for visiting foreign nationals). The lower figure for special-statute offences comes from the weight of Immigration Control Act violations; excluding those, there is almost no difference.

Q2. If I am not prosecuted, can I go on living in Japan?

A decision not to prosecute and status of residence are separate procedures. Even without prosecution, deportation proceedings go forward if a ground for deportation applies. That said, a decision not to prosecute carries significant weight in the later assessment of special permission to stay.

Q3. I have already signed the written statement. Can nothing be contested now?

There are situations in which it can be contested. It is necessary to examine specifically whether audio-visual recording exists, what was interpreted and how, and how the statement corresponds to what was actually said. Please consult a lawyer early.

Q4. I manage everyday conversation in Japanese. May I be questioned without an interpreter?

We do not recommend it. Holding an everyday conversation and understanding an interrogation containing legal terminology, then stating your own account accurately, are entirely different abilities.

Q5. A member of my family has been arrested. What should I do first?

Appoint defence counsel first. How many interviews with an interpreter can be held, and which interpreter is used, depend on the arrangements counsel has in place.

11. Closing

So far as the statistics go, “foreigner privilege” has no substance behind it. The position a foreign suspect or defendant occupies is not a favoured one but a structurally disadvantaged one, because the passage into the Japanese language is held exclusively by the side conducting the questioning.

That is precisely why there is work for counsel to do: contest the interpretation, contest intent, and reconstruct carefully what this person, at that moment, actually understood and how. This is not a formality; in these cases it is the substance that decides the outcome.

There is no need to give up on a foreign national’s criminal case.

We practise law in order to protect the people who matter.

At this office, attorney Daisuke Matsumura personally handles every stage, from the first detention interview to the conclusion of trial; the work is not delegated to clerical staff or junior attorneys. For Chinese, a dedicated in-house interpreter experienced in cases involving foreign nationals is present at the office. For other languages, including English, an interpreter is arranged according to the requirements of the case. Either way, this means access to an interpreter who acts for the client, separately from the one designated by the investigating authorities. If you face a criminal case involving a foreign national, or the status-of-residence questions that follow, please consult this office.

This article is a general explanation and does not guarantee any outcome. For an individual matter, please consult a lawyer directly. The information is current as of September 2026.

This article is also available in 日本語, 简体中文, 繁體中文, 한국어, Tiếng Việt, नेपाली, Português, Filipino and Español.

About the author

Daisuke Matsumura, Attorney at Law
Dai-ichi Tokyo Bar Association (registration number 59077, admitted 2019)
Funado International Law Office (舟渡国際法律事務所), Toshima-ku, Tokyo
Principal areas of focus: criminal defence for foreign nationals, centred on clients of Chinese nationality, and administrative litigation relating to immigration control.
The office handles criminal proceedings and status-of-residence matters together, as a single body of work.

Funado International Law Office
Website: https://matsumura-lawoffice.jp/
WeChat ID: matsumura1119 (微信ID：matsumura1119)