What lies beyond the response of "originals cannot be returned" and "cannot even be viewed"? A thorough examination of the reality of seized property management from a legal perspective
National Tax Union | Official Statement
Following the first statement, "The Emptying of the Right to Claim the Return of Seized Property," this statement formally expresses our association's official legal view regarding the legal obligation of the Chain of Custody in seized property management and the structural doubts indicated by the failure to fulfill accountability in this case.
Part 1: What is Chain of Custody—Its Legal Basis
Chain of Custody is a universal legal doctrine in modern criminal procedure that means continuously and verifiably recording when, by whom, for what purpose, and how seized evidence was handled from the time of seizure until it is presented in court.
That legal basis is inherent throughout the current laws.
- First, the series of provisions regarding the custody and recording of seized items set forth in Article 121 and subsequent articles of the Code of Criminal Procedure legally impose an obligation on the seizing authorities to appropriately manage seized items and preserve their condition.
- Secondly, Article 120 of the Code of Criminal Procedure, as applied mutatis mutandis pursuant to Article 222, Paragraph 1 of the same Code, stipulates the obligation to create and deliver a seizure inventory, establishing a system that guarantees the identity and specificity of seized items in writing from the time of seizure.
- Third, since items seized under the Code of Criminal Procedure may later be used as evidence, the burden of proof regarding their identity, authenticity, and lack of tampering rests with the investigative agency that submits the evidence. This is a fundamental principle of evidence law under the Code of Criminal Procedure, and evidence for which the chain of custody has been broken loses its admissibility entirely.
- Fourth, under the intent of Article 1, Paragraph 1 of the State Redress Act, if there is negligence in the management of seized items, resulting in loss, damage, or unauthorized use, state liability for damages will arise. In other words, the management of seized items is a legal obligation that is subject to state liability even from a civil perspective.
Taking all of this together, the maintenance of the chain of custody is clearly positioned under current law as a legal obligation borne by investigative agencies.
Part 2: Management of Seized Items in this Case—What Has Been Confirmed
In this case, the facts regarding the actual state of seized property management that can be confirmed by the general public are as follows.
- First, despite two years having passed since the seizure, no specific questioning or inspection regarding the seized items has been conducted even once.
- Second, as detailed in the first installment, at the stage when the person subject to the seizure brought the seizure inventory to retrieve the items, they were frightened and acted suspiciously; subsequently, for two weeks, they continued to ignore phone calls, and the response that "the originals cannot be returned" and "they cannot even be viewed" was given under the instruction of Atsushi Kitamura, Director-General of the Regional Taxation Bureau.
- Thirdly, despite the fact that the fact that multiple fraudulent uses of the seized credit cards have been confirmed was pointed out through an explanatory document from our association, no specific explanatory response has been provided by the seizing authority.
- Fourth, in response to the request for an explanation regarding the management of seized items, the responses consistently amounted to abstract answers such as "they were stored appropriately," and explanations regarding specific details constituting the Chain of Custody—such as specific management records, access logs, identification of persons with access rights, and identification of management supervisors—were barely provided.
Third: Legal evaluation of the abstract response "stored appropriately"
Simply answering that the seized items were "properly stored" does not explain any of the individual matters that constitute the chain of custody.
Because the Chain of Custody is maintained only by recording and disclosing each of the following matters in a specific and verifiable manner.
- First, individual identification of the seized items (identification via the seizure inventory and confirmation of identity with the actual items).
- Second, the storage location of the seized items (which building, which storage room, and which shelf they are stored on).
- Third, persons authorized to access seized items (names, titles, and periods of staff authorized to handle seized items).
- Fourth, the record of incoming and outgoing seized items (when, who, for what purpose, which seized items, and to what location they were taken).
- Fifth, the person responsible for the management of seized items (the name and title of the official who bears ultimate responsibility for the management of all seized items as a whole).
- Sixth, confirmation of the current condition of the seized items (verifiable records that there are no changes in condition between the start of storage and the present).
The response that "they were stored appropriately" does not provide a specific answer to any of these individual matters; it is merely an abstract self-evaluation. This does not legally fulfill the obligation of accountability.
In fact, Director-General Shimasaki stated that "the seized items cannot be found," and since this statement is detailed in the Mamizuka memo, a persuasive explanation is absolutely essential.
Fourth: Logical doubts that can generally arise in society
Here, in this matter, I will organize the logical doubts that can be formed by society in general as legal arguments. This is not to unilaterally criticize the seizing authority, but rather to organize them as a set of possibilities that cannot be logically excluded unless accountability is fulfilled.
Doubt 1: Is the existence of the seized items guaranteed in a verifiable manner?
The situation where seized items "cannot be returned in their original form" and "cannot even be inspected" deprives the person from whom the items were seized of the means to verify the very existence of the seized items. To the general public, there is no way to confirm that seized items actually exist other than through the self-reporting of the seizing agency.
Since the physical existence of the seized items is not objectively verified, we are placed in a situation where the doubt that "the possibility of them being lost cannot be completely ruled out" can logically arise. This is not a malicious speculation by the party from whom the items were seized, but a doubt that necessarily arises as a logical consequence of the very structure in which accountability is not fulfilled.
Doubt 2: Is the identity of the seized items preserved?
Even assuming the seized items still exist, has it been demonstrated in a verifiable manner that they are identical to the items listed in the seizure inventory? As long as individual Chain of Custody records are not disclosed, a logical doubt naturally arises as to whether the items seized at the time are being stored while maintaining their identity up to the present.
Objection 3: Is unauthorized access to seized items structurally prevented?
The fact that fraudulent use has been confirmed regarding the seized credit cards elevates the possibility of unauthorized access to the seized items from an abstract possibility to a concrete one. Nevertheless, as long as the persons with access rights, the disclosure of entry and exit records, the names of those responsible for management, and other such details are not clarified, a situation is created where the suspicion that "the possibility that similar unauthorized access is being carried out regarding other seized items as well cannot be completely ruled out" can logically be established.
Question 4: Have the documents related to the seized items been lost?
The fact that the response changed to "the original cannot be returned" and "it cannot even be viewed" at the stage of going to retrieve seized items for which no questioning or inspection has ever been conducted over a long period of time raises doubts not only about the seized items themselves, but also about the preparation and preservation status of related documents (such as seizure records, custody records, and entry/exit records).
Until accountability is fulfilled, we are placed in a structural position where even basic facts—such as which documents still exist or which records have been maintained—cannot be confirmed by the general public.
All of these doubts would be immediately resolved if accountability were fulfilled. Therefore, the very fact that these doubts remain unresolved suggests a structural problem regarding the actual management of seized items.
Chapter 5: Why Are Question Inspections Not Conducted?—The Structural Explanation Hypothesis
Here, I will organize the extremely important structural legal issues in this case as legal arguments.
As confirmed at the outset, the fact remains that even though a considerable period of time has passed since the seizure, not a single specific question or inspection regarding the seized items has been conducted.
Usually, seizure is carried out for the purpose of utilizing the seized items as fact-finding evidence. Therefore, it is a golden rule in investigations and inquiries that questioning and inspection based on the seized items are conducted "promptly" after the seizure.
Nevertheless, in this case, questioning and inspection have not been conducted even though a considerable period of time has elapsed since the seizure. From this fact, a situation logically exists in general society where the following hypothesis can be established.
What should be done if collusion occurs due to the routine omissions of the National Tax Agency?
Hypothesis 1: The seized items are not in a state where they can be utilized as fact-finding materials.
This is a hypothesis that the seized items are lost, their whereabouts are unclear, or their management has deteriorated, rendering them unusable as fact-finding materials. In this case, even if one wished to conduct questioning and inspection, it is difficult to verify the current status of the seized items themselves, which may result in questioning and inspection becoming practically impossible.
Hypothesis 2: The seized items were not necessary to be utilized as factual establishment materials.
This is a hypothesis that, although the seized item was deemed necessary at the time of seizure, subsequent progress in the investigation or inquiry revealed that the seized item is unnecessary as material for establishing facts. In this case, it should be promptly returned pursuant to Article 123, Paragraph 1 of the Code of Criminal Procedure, but the fact that it has not actually been returned is inconsistent with this hypothesis.
Hypothesis 3: Continued retention of the seized items for purposes other than investigative necessity.
This is a hypothesis that the seized items are being retained beyond their purpose as fact-finding materials, serving instead as a means of psychological pressure on the person from whom they were seized, a means to elicit explanations and responses, or an inducement for face-to-face investigations. This is an operation that deviates from the intent of the seizure system and exceeds the purpose of seizure under the Code of Criminal Procedure.
Hypothesis 4: Decision-making within the organization is stalled, and judgments themselves are not being made.
This is a hypothesis that the decision-making process within the organization regarding the handling of seized items is dysfunctional, leaving them neglected without any decision being made on either returning them or continuing to retain them.
Which of these hypotheses is true cannot be determined by the general public unless the seizing agency fulfills its accountability. That is precisely why the fulfillment of accountability is the only way to resolve these structural doubts.
Sixth: Legislative Solution—Institutionalization of the Right to Request Disclosure of Chain of Custody
Based on the above logical organization, our union proposes to structurally resolve structural doubts like the one in this case through legislation rather than administration.
Specifically,
- First, the institutionalization of the right of the person from whom property was seized to request disclosure of the Chain of Custody. A system under which, after a certain period has elapsed following a seizure, the person from whom the property was seized can request the seizing agency to disclose information such as the existence, integrity, storage location, and access records of the seized property.
- Second, a regular physical inspection system for seized items. This is a system in which an independent third party (such as a court clerk) verifies the existence and condition of seized items at regular intervals following their seizure.
- Third, penalizing provisions for failure to account for evidence management. Institutionalization of a mechanism that prohibits the continued retention of seized items if responses remain abstract to specific disclosure requests regarding the chain of custody.
- Fourth, the obligation to report immediately when the whereabouts of seized items are unknown or discovered to be missing. A whistleblower protection system within the organization and a reporting system to external oversight bodies to prevent the concealment of losses.
Through these legislative measures, seized property management can evolve from the current structure that relies on the self-reporting of seizing agencies into a system legally guaranteed to be verifiable.
7. Formal Request from the Union
Based on the above, our association formally requests a written response to the following matters from the officials of the 3rd Inspection Division, Inspection and Criminal Investigation Department, Kumamoto Regional Taxation Bureau, and Mr. Atsushi Kitamura, Director-General of the Regional Taxation Bureau.
- First, identify the current storage location (building name, storage room name, and shelf number level) for each item of the seized property in this case (business card case, personal computer, passport, credit cards, etc.).
- Second, identification of the names, titles, and accessible periods of individuals authorized to access each seized item.
- Third, disclosure of the ingress and egress records for each seized item (showing when, by whom, for what purpose, which seized item, and to what location it was taken out since the seizure).
- Fourth, identification of the name and title of the person responsible for the management of each seized item.
- Fifth, a specific explanation of the facts regarding the fraudulent use cases confirmed concerning the seized credit cards (dates and times of fraudulent use, amounts, places of use, and the results of comparison with access records to the cards while in seizure).
- Sixthly, the preparation and preservation status of related documents such as seizure records, storage logs, and entry/exit records regarding the seized items.
- Seventh, the specific reason why question inspections regarding seized items have not been conducted even once over a long period.
Conclusion: Fulfilling accountability protects the trust in the seizure system
The coercive measure of seizure is an extremely powerful authority in modern criminal procedure law. Precisely for this reason, the burden of accountability for its operation rests heavily upon the seizing agency.
Rather than abstract answers like "it was stored properly," specific and verifiable explanations regarding the individual components that make up the Chain of Custody are the only way to protect public trust in the seizure system.
The hollowing out of the right to claim a refund discussed in the first installment, and the failure of accountability regarding the chain of custody discussed in this second installment—these do not merely represent operational issues in a single case, but rather indicate the necessity of re-examining the current seizure system under the law from both legislative and operational perspectives.
As the world's first union with zero membership fees, our union will continue to promote the proper operation of the seizure system through both thorough verification based on legal theory and structural solutions through legislation.
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