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April/23/2004
Bills on Lay Judge System and Criminal Procedure Reform Clear Lower House |
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Two bills, one
is designed to introduce 'saiban-in system' wherein
lay judges serve as members of a judicial panel and the
other is to revise the Code of Criminal Procedure, etc.,
cleared the Judiciary Committee and the House of Representatives
on April 23, with some changes to the government-drafted
bills.
The Japan Federation of Bar Associations (JFBA) had requested
to amend the Chair's Paper and the Skeletal Draft prepared
by the Office for Promotion of Justice System Reform as
they had included some provisions which might unjustly restrict
defense and advocacy activities. As a result, we won some
important changes before the government-drafted bills being
set. Furthermore, we have been urging both the ruling and
opposition parties to make further amendments to the government-drafted
bills during the current Diet session.
These our efforts along with voices from the public, including
the media, have resulted in the approval of the revised
bills. In addition, the Judiciary Committee adopted the
Supplementary Resolutions mentioned later.
The amendments made to the government-drafted bills are
as follows in which our main requests were included.
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Saiban-In's Duty
of Confidentiality
(Amendment to Article 79 of the Bill on Saiban-In)
Under the government-drafted bill, saiban-in (lay
judges) could face up to 1 year in prison or a fine of
up to 500,000 yen if they leak information during and
after their practice, about; (a) their deliberation proceedings,
(b) their opinions and the number of the panel members
standing for each opinion, (c) anything confidential obtained
in the course of their practice.
The revised bill eases the penalties up to 6 months in
prison, and only a fine will be imposed for disclosing
the information on the above (a) after their practice,
subject to imprisonment if the saiban-in leak such
information for gaining money, etc.
The JFBA had been requesting to limit and define the scope
of the duty of confidentiality and remove imprisonment
as a penalty. Though the revised bill does not completely
satisfy all our requests, a significant amendment has
been made.
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Contact with Saiban-In
(Amendment to Article 64 of the Bill on Saiban-In)
The government-drafted bill set forth that, if there was
a justifiable reason to have a suspicion that a defendant
would contact a saiban-in, etc., it would be a
cause to revoke his/her bail and interviews. Under the
revised bill, it will be a cause only when the defendant
contacts a saiban-in, etc.
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Future Review of the Saiban-In
System
(Article 8 of the Supplementary Provisions of the Bill
on Saiban-In)
One of the JFBA's requests has resulted in Article 8
of the Supplementary Provisions to review the saiban-in
system after the enforcement of this law in order to improve
the system. The Government will review the implementing
status of the saiban-in system after 3 years of its enforcement
and, if necessary, take appropriate measures to ensure
that this new criminal trial system is functioning effectively
as a foundation of the judicial system in Japan.
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Using Disclosed Evidence
for Other Purposes
(Amendment to Article 281-4 of the Bill on Revising the
Code of Criminal Procedure)
The government-drafted bill prohibited defendants and
defense counsel from disseminating the evidence disclosed
by the prosecution during criminal proceedings beyond
that necessary to preparation of their trials. The defendants
could face a penalty including imprisonment while the
defense counsel could face a penalty only if they did
the above for gaining profits, etc.
The JFBA had been insisting that the scope of the acts
to be forbade should be limited, pointing out that the
government-drafted bill might unjustly restrict the right
of defendants to defend themselves and conflict with the
principle of public trials and the freedom of broadcasting
since any evidence disclosed by the prosecution was subject
to the provisions without considering its context and
whether or not it was obtained in a public trial.
The above mentioned request was not included in the revised
bill. However, some wording was added to consider the
circumstances upon judging the act, including contexts
of the evidence's duplicate, purposes and nature of the
act, whether honor of people involved and peace of their
private lives or business are offended, whether the original
evidence has been gathered in a public trial, and if it
is so, its method of the examination with taking account
of the defendant's right of defense.
This amendment has an important meaning as it clarifies
the following three points.
| 1. |
Defendants may use disclosed evidence
required for defending activities without restricting
the purpose to preparation of trials. |
| 2. |
If an act of disseminating disclosed
evidence has not offended honor, etc. of people involved,
there might be no virtual illegality. |
| 3. |
From the aspect of the principle of
public trials, it is necessary to give appropriate
consideration on use of the evidence obtained during
public trial proceedings. |
There remains some controversy over how to interpret
and implement these provisions since this amendment does
not clearly define the scope of the acts to be prohibited.
However, it appears that the JFBA's point was fairly adopted
in the amendment.
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Other Amendments
-Depositions to be Disclosed
(Deletion from Article 316-15 of the Bill on Revising
the Code of Criminal Procedure)
Item 5 of Article 316-15 lists depositions, etc. of expected
witnesses as similar evidence, which will be disclosed
by the prosecution if so requested by defendants or defense
counsel and it is reasonable to do so. In response to
the JFBA's request, the wording which limited contexts
of the aforesaid depositions, etc. to be disclosed was
deleted.
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| -Amendment to the Bill on
Revising the Law for the Inquest of Prosecution Article
44 of the Law for the Inquest of Prosecution was changed
to the same context as Article 79 of the Bill on Saiban-In,
by which members of the Committee for the Inquest of Prosecution
could face the same penalties as saiban-in if they
leak confidential information.
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-Supplementary Provision
for People's Easy Participation
(Supplementary Provision to the Bill on Saiban-In)
It is essential to provide the necessary condition for
people to easily participate in criminal trials as saiban-in
in order to facilitate and carry out this new system.
Therefore, Article 3 of the Supplementary Provisions was
added to call on the Government to improve the environment
to ensure the smooth operation of the system.
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| Supplementary Resolutions |
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Supplementary Resolution for the
Bill on Saiban-In (Extract) |
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Upon the enforcement of this law,
the Government and the Supreme Court should
pay considerable attention to the following
matter. |
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| 1.
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Details of the saiban-in
system should be provided by Cabinet
Orders or Supreme Court Rules. Furthermore,
upon implementing the system, the
Government and the Supreme Court
should take into account the deliberations
of the Diet concerning definition
of scope of the duty of confidentiality,
methods for giving proofs and explanations
easily understandable to saiban-in
and so on for smooth and effective
operation of the system. |
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| * |
Supplementary Resolution for the
Bill on Revising the Code of Criminal Procedure |
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Upon the enforcement of this law,
the Government should pay considerable attention
to the following matters. |
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| 1.
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Based on the discussions
in the joint meetings on criminal
procedure held by the Supreme Court,
the Ministry of Justice, and the
JFBA, the Government should consider
whether further measures are required
to be taken for the investigation
and trial proceedings including
introduction of audio and/or video
recording of interrogations and
new methods of investigations with
taking account of the overall criminal
proceedings. The Judiciary Committee
expects that substantive progress
will be made in the Government's
deliberations prior to the enforcement
of the laws. |
| 2. |
Paragraphs of 4 and
5 of Article 281 of this law should
be interpreted based upon the deliberation
of this Diet. |
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(April 23, 2004
Judiciary Committee of the House of Representatives) |
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