Opinion on Amending the Code of Criminal Procedure and Other Acts Related to Criminal Retrial
February 17, 2023
Japan Federation of Bar Associations
The Japan Federation of Bar Associations (the “JFBA”) compiled its “Opinion on Amending the Code of Criminal Procedure and Other Acts Related to Criminal Retrial” dated February 17, 2023 and submitted it to the Minister of Justice, the Speaker of the House of Representatives and the President of the House of Councilors on February 21, 2023.
Summary of Proposal
Parts of the Code of Criminal Procedure and the Act for Enforcement of the Code of Criminal Procedure should be immediately amended as shown in the “Proposed Amendments” column in the attached document entitled “Proposed Amendments of the Code of Criminal Procedure and Other Acts – Comparison Table”.
Reasons for Proposal
1. Need for and Urgency of Amending the Code of Criminal Procedure Part IV
- (1) Introduction－Previous developments towards amending the Code of Criminal Procedure Part IV
The JFBA has worked towards realizing the amendment of the Code of Criminal Procedure Part IV since first publishing an outline of particulars regarding the proposed amendment in 1962. Despite our efforts, however, the Code of Criminal Procedure Part IV has never been amended in the more than 70 years since the current law came into effect.
(2) Need for and Urgency of Amending the Code of Criminal Procedure Part IV
(a) Retrial disparity
The current Code of Criminal Procedure has only 19 articles concerning retrials, and this has resulted in the proceedings on appeals for retrial varying significantly among the courts. This disparity among the various courts can be referred to as “retrial disparity” and it manifests in a noticeable way.
(b) Evidence disclosure in retrials
The current Code of Criminal Procedure does not have provisions which set forth the disclosure of evidence in retrials, and this has also resulted in a situation where there is a significant disparity among the various courts in deciding on matters including the extent of the disclosure of evidence. The disclosure of evidence in retrials needs to be legislated immediately (Article 9, Paragraph 3 of the Supplementary Provisions of the Code of Criminal Procedure with amendments adopted in 2016).
(c) Objection filed by public prosecutors against a decision to open a retrial
There have been cases where an objection to the decision to open a retrial has been filed by the public prosecutors and this has prevented the early rescue of victims who have suffered miscarriages of justice. The need to immediately rectify this practice is high.
(d) Prolonged proceedings on retrial requests and aging of victims who have suffered miscarriages of justice
The Code of Criminal Procedure Part IV needs to be immediately amended as the victims who have suffered miscarriages of justice and their relatives are reaching advanced ages.
2. Fundamental perspectives of proposed amendments
- (1) Reflecting the intent of the decisions in the Shiratori and Saitagawa cases into the law and expanding the scope of the reasons for filing an appeal for retrial
The intent of the decisions in the Shiratori and Saitagawa cases (namely, applying a comprehensive assessment of all new and old evidence and the principle of “giving defendants the benefit of the doubt”) should be reflected in the law.
In addition, it has been decided that retrials should be accepted on the grounds that (i) there was an error in the fact finding which was used as a basis for choosing to impose the death penalty (i.e., an appeal for retrial of cases in which the death sentence has been handed down), or (ii) the investigation or court proceedings are found to be unconstitutional (i.e., an appeal for retrial based on a claim of constitutional violation).
(2) Establishing a structure to secure fair and adequate judgments by courts
Any involvement of a judge in the previous proceedings and/or judgments in a particular case should be clearly stated as grounds for disqualification of and challenge to such judge.
In addition, it should be clearly stated that important proceedings must be made open to the public.
(3) Establishing provisions on proceedings centered on guaranteeing retrial applicants their subjective involvement in the proceedings
Provisions should be established regarding proceedings enabling the subjective involvement of retrial applicants in the proceedings of retrial requests. In addition, provisions should be established guaranteeing retrial applicants the right to receive effective aid from their defense counsel.
(4) Establishing evidence disclosure in retrials
Provisions should be established regarding evidence disclosure in retrials, along with provisions regarding storing and preserving records and evidence in order to enable such disclosure.
(5) Confirming the role of public prosecutors in the proceedings of retrial requests and disallowing public prosecutors to file objections to decisions to open a retrial
Provisions should be established to confirm the role of public prosecutors in the proceedings of retrial requests as their involvement in such proceedings should be limited to the extent to which the courts, who hold control over the proceedings on an ex officio basis, deem it necessary for proper progress in the proceedings.
In addition, the filing of an objection by the public prosecutors against a decision to open a retrial shall be disallowed as the repeated occurrence of public prosecutors filing such objections is becoming a serious problem.
(6) Establishing provisions regarding a moratorium on executions
Provisions should be established regarding a moratorium on executions (including suspending the detention of death row inmates).