Bail in Japan: why it does not exist before indictment

The first practical question a family abroad asks is almost always about money: how much is bail, and where do we send it. The answer that comes back from a Japanese defence lawyer often sounds evasive. There is nothing to apply for yet.

That is not evasion. Japanese bail operates only after a person has been charged, and until then the concept simply has no application. This article explains why the system is built that way, what can actually be done during pre-indictment detention, how bail works once it becomes available, how the deposit is fixed and returned, and why release from criminal custody does not always mean release.

Why there is no bail before indictment

Bail in Japan is available to a defendant after a public prosecution has been instituted, and it does not apply to a suspect before that point. This is a feature of the statutory design, not a matter of local practice or of how a particular court happens to run. Detention during the investigation stage is governed by the rules on detention of suspects, and the routes out of it are different mechanisms entirely.

Because this differs from many other legal systems, it produces expensive mistakes. Families raise funds, wire them to Japan, and discover that no application can be filed. The single most useful question to ask at the outset is whether the case is before or after indictment. Everything else follows from that.

What can be done while the case is still pre-indictment

The absence of bail does not mean the absence of options. The tools that are actually used are these:

• Access to counsel. Article 39(1) of the Code of Criminal Procedure allows a detained person to meet the defence lawyer without an official present. This is the only setting in which strategy can genuinely be discussed.
• Disclosure of the grounds for detention. Article 82 and the following provisions allow a request for the reasons for detention to be stated in open court. It is also one of the few occasions on which family members can be present.
• Challenges to the detention itself, and applications to have it revoked or suspended. The requirements are strict, but in some cases these succeed.
• Audio and video recording of questioning. Article 301-2 requires recording of interrogations in a defined category of cases.

In cases involving foreign nationals, securing competent interpretation belongs on the same list. Articles 175 and 178 of the Code of Criminal Procedure deal with interpretation and translation, and Article 14(3)(a) and (f) of the International Covenant on Civil and Political Rights guarantee both notice of the charge in a language the person understands and the free assistance of an interpreter.

After indictment, bail comes in two layers

Once a person is charged, bail exists in two forms: bail that must in principle be granted, and bail that the court may grant in its discretion. The first is governed by Article 89 of the Code of Criminal Procedure. That article lists grounds of exclusion, including cases involving serious offences and cases where there is reasonable ground to suspect that evidence will be destroyed. If none of the listed grounds applies, bail is to be granted.

Where a ground of exclusion does apply, Article 90 allows the court to grant bail as a matter of discretion. In practice, persuading the court under Article 90 is the substance of the defence lawyer’s work at this stage. The task is not to make the risk of flight and the risk of interference with evidence appear smaller. It is to make them actually smaller, on paper and in fact.

How the deposit is fixed and when it comes back

The amount of the bail deposit is set by the court in each individual case, taking account of the nature of the offence, the state of the evidence and the defendant’s means. There is no published standard figure, and no reliable way to state in advance what a given case will require. Any source that quotes a fixed price for bail in Japan is describing an impression, not a rule.

The deposit is returned after the proceedings conclude, provided the conditions of release were observed and the defendant continued to appear. Whether the verdict was a conviction or an acquittal does not by itself determine return of the money. On the other hand, breaching a condition, leaving the designated residence, failing to appear or contacting the people the order says to avoid, can lead to revocation of bail and forfeiture of all or part of the deposit. Even money that will eventually come back is money that cannot be used while the case runs, and that matters for family planning.

The obstacles specific to foreign defendants

Bail decisions tend to be harder in cases involving foreign nationals because the court is testing the substance of the residence and the supervision on offer. What is being examined is not nationality but whether there is a realistic guarantee of continued appearance. That is why the following preparation carries weight:

• A written undertaking from a guarantor, stating specifically who they are, how they know the defendant, where the defendant will live and how supervision will work in daily terms
• Documentary proof of the residence, such as a lease, and copies of the residence cards of family members living there
• A letter from an employer or a school confirming that the defendant will be accepted back
• Willingness to accept conditions such as surrendering the passport or living at a specified address

Where the paperwork is concrete, the argument for discretionary bail has something to stand on. Where it is abstract, the decision tends to be conservative.

Release on bail is not always release

Even where bail is granted, immigration detention may begin if the person falls within a ground for deportation. This is the point most often missed by anyone treating the criminal case and the immigration file as separate matters. Custody can pass from one authority to the other on the same day.

There are alternatives to detention, and the figures show they are used. According to the Immigration Services Agency, between 10 June 2024 and the end of that year, 1,123 supervision measure decisions were made, comprising 647 before issuance of a written deportation order and 476 after. Provisional release was granted in 127 cases over the same period. More than 90 per cent of supervisors were relatives or acquaintances of the person concerned, and there were no cases of a person becoming untraceable. The guarantor arrangements assembled for a bail application carry directly over into this stage.

Misunderstandings worth correcting

• Pay bail the day after the arrest and the person is released. There is no bail before indictment.
• There is a going rate for bail. The court fixes the amount case by case.
• A conviction means the deposit is lost. If the conditions were observed, it is returned.
• Bail is impossible for a foreign national. What is assessed is the substance of the arrangements securing appearance, not the passport.
• Bail ends the detention. Where a ground for deportation applies, an immigration procedure may follow immediately.

How our office works

At Funado International Law Office, attorney Matsumura Daisuke attends detention visits and meetings personally. As to language, an interpreter dedicated to cases involving foreign nationals is permanently based at the office for Chinese; for other languages, including English, we arrange an interpreter according to the requirements of the individual case.

Bail is a post-indictment question, but the preparation for it starts long before. Our primary objective, however, is a decision not to prosecute rather than a suspended sentence, because where there is no indictment the question of bail never arises. We design the criminal case and the immigration procedure as one piece of work, since statements taken during the investigation reappear as material in the violation examination and the oral hearing. We are also prepared to contest whether a ground for deportation applies at all, including questions of intent and negligence. The first consultation is free of charge, and you may contact us through WeChat ID matsumura1119.

Closing note

If you arrived here searching for the price of bail in Japan, the most useful thing you can do next is establish which stage the case has reached. Once that is clear, money and time can be directed to the places where they actually change the outcome. This article is a general explanation only; for your own case, please speak with a lawyer directly.

Author

Matsumura Daisuke, Attorney at Law
Member of the Daiichi Tokyo Bar Association (registration number: 59077, admitted 2019)
Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo)
Practice focused on criminal defence for foreign nationals and immigration procedure, with clients predominantly of Chinese nationality. Results include an acquittal in a Stimulants Control Act case (possession for the purpose of profit), a decision not to prosecute in an organised fraud case, and grants of special permission to stay in cases regarded as difficult.

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

Japanese version of this article: https://matsumura-lawoffice.jp/blog/detail/2026099206/