63rd JFBA General Meeting -Resolution on Requesting Expansion of the Scope of the Publicly-funded Attorney Attendant System to All Necessary Defense Cases of Juveniles Detained in Juvenile Detention Center, Expansion of Court Appointed Attorney System to All Cases for Detained Suspects, and Establishment of a System by the State under which Attorneys Support Victims of Crime Immediately After the Occurrence of a Crime-"
1. Since juveniles have not reached full maturity, there is a greater risk of a miscarriage of justice for juvenile delinquents. Many of them feel that they have no place to return, as in many cases, they have suffered abuse at home or have been isolated at school, so that they have not met adults they can trust and this may have led to their delinquent tendencies. For the rehabilitation of juvenile delinquents, it is vital that they have attorney attendants who provide legal and social assistance and support their growth and development. Attorney attendants for juvenile proceedings (“Attorney Attendants”) attend juvenile hearing proceedings from the same standpoint as juveniles, in order to ensure appropriate findings and to obtain appropriate court decisions. In addition, the Attorney Attendants coordinates the circumstances surrounding the juveniles, such as homes, schools, and work places, in order to support their rehabilitation.
In order to substantively guarantee the right of juveniles to have Attorney Attendants, the Publicly-funded Attorney Attendant System has been introduced for juveniles with limited financial means, but the current Publicly-funded Attorney Attendant System, introduced in 2007, is only available in certain serious cases, such as the commission of an intentional criminal act leading to the death of victim, robbery, and cases where the courts deem attendance of attorney necessary. However, even in the case of a theft or an assault, cases which are not covered by the current Publicly-funded Attorney Attendant System, there are occurrences where juveniles have been placed and detained in a juvenile detention center (kanbetsu-sho) before judgment and given severe sentences, such as placement in closed centers, a Young Offenders’ Institution, or a Child Self-Support Facility. Therefore, the necessity for assistance from attorneys cannot be decided only upon the name of the crime. It must be recalled that Article 37 of the “Convention on the Rights of the Child,” stipulates that “every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance.”
In addition, although the scope of cases to which the Court-Appointed Attorneys system for suspects before trial, including juveniles waiting for trial, is applied has been expanded, for example, in the cases of a theft or an assault, the Publicly-funded Attorney Attendant System for juveniles in criminal trials is very limited, and in certain cases juveniles cannot be attended by his or her attorney as a Public Attendant after they have been nominated as a family court-appointed attorney before the trial.
As this situation is inexcusable, the JFBA and bar associations throughout Japan established the Duty Attorney Attendant System nationwide in which, if a juvenile wishes to have a visitation, an attorney visits him/her for free. In addition, the JFBA is currently collecting an additional special monthly fee from its members for the Fund for Juvenile and Criminal Defense. With this Fund, the JFBA has been expanding the system of support for Attorney Attendants for juvenile cases, and this system covers the attorneys’ fees. The JFBA, however, believes that these type of expenses should be covered by the State.
The JFBA issued its “Provisional Legislative Proposal for a Full Public Attendant System” on December 18, 2009. As suggested in the Proposal, the JFBA has been striving to build up the attorney attendant system it created and to ensure training systems for attorneys in order to improve their attendant activities. With these efforts of the JFBA, it can be considered that the necessary conditions to realize the full Publicly-funded Attorney Attendant System have already been set, so its realization is now an urgent issue. From March 2012, the Ministry of Justice launched an “Opinion Exchange Meeting relative to the ‘Juvenile Act’ as revised in 2008.” In that Meeting, the JFBA also requested the immediate realization of the full Publicly-funded Attorney Attendant System for juveniles.
2. In addition, the JFBA has been requesting that the Court-Appointed Attorney System should apply to all suspects who are detained. However, the realization of this request has only been conducted step by step, and for cases for which this system is not available, suspects who are detained have to appoint an attorney by themselves at their own expense or to use the criminal suspects defense support system with limited finance resources.
However, even if the case is not really serious, it does not mean that the detained suspects suffer less from their detention or there is less risk of a miscarriage of justice. As is often seen in false accusation cases of molestation in crowded trains, because the punishment would not be very heavy even if the suspect were guilty, certain suspects are led to make a false confession in order to avoid more disadvantageous situations or for fear of such situations.
The right for a detained suspect to appoint defense counsel is guaranteed in Article 34 of the Constitution of Japan, regardless of the gravity of the alleged facts of the crime. Further, the realization of the Publicly-funded Attorney Attendant System for detained suspects is based on, and in accordance with, the Constitution of Japan and international human rights laws, as shown below:
- - Article 34 of the Constitution of Japan stipulates, “No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel; nor shall he be detained without adequate cause.”
- - Article 14 of the Constitution of Japan
- - Paragraph (3) of Article 37 of the Constitution of Japan
- - Article 14 of the International Covenant on Civil and Political Rights “ICCPR”
- - Principle 17 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and
- - The Basic Principles on the Role of Lawyers
Recently, the circumstances surrounding attorneys in relation to realizing the full Public Attendant System have improved, due to certain factors, namely, the increasing number of attorneys in each bar association, the improvement of mobility of attorneys with better transportation conditions, and the stronger coordination and support within bar associations. Therefore, considering the above, it can be said that the time has come to abolish any limitations regarding the scope of cases to which the Publicly-funded Attorney Attendant System is applied: all detained suspects must be supported and defended by court-appointed attorneys.
3. Further, the legal aid system provides attorneys’ fees and expenses for victims with limited financial means, in the case of violation of the life, body, liberty or sexual freedom of victims; for victims of violence inflicted by spouses/partners, and for victims of stalking, as well as family members of victims, or the deceased’s family (hereinafter referred to as “Victims of Crime”), if assistance of attorneys is judged necessary.
This legal aid for Victims of Crime permits a wide range of aid (including, but not limited to, the participation of attorneys representing Victims of Crime in criminal trials and filing for compensatory damages) to Victims of Crime without placing financial burdens on them, from the early stages of the occurrence of a crime. Since such an aid system is very important for Victims of Crime with limited financial means, the JFBA provides the expenses for its operation from its member-fee funded fund dedicated to such purposes, and these services are currently entrusted by the JFBA to the Japan Legal Support Center.
However, the JFBA believes that it must be the State which provides financial support to Victims of Crime with limited financial means. This obligation of the State is also clearly indicated in the “Basic Plan for Victims of Crime,” established by the government, which states that “appointment of an attorney with public funds for Victims of Crime” should be seriously considered. The meetings following the release of this basic plan also pointed out that the legal aid for Victims of Crime should be enhanced and expanded.
4. The JFBA hereby strongly requests the government and the Diet to achieve the following:
- To immediately amend the Juvenile Act in order that the Publicly-funded Attorney Attendant System should cover all cases of juveniles who are detained, under court rulings, in juvenile detention centers, and to realize and enforce this system, without fail, by the end of 2013.
- To immediately extend the application of the Court-Appointed Attorney system for all cases in which suspects are detained.
- To establish a state-run system in which Victims of Crime with limited financial means can receive the following legal aid from attorneys immediately after the occurrence of a crime:
i) submitting an offense report, ii) filing a complaint/bringing charges, iii) accompanying the victim at questioning sessions, iv) attending/assisting court hearings to view proceedings, attending/assisting in juvenile proceedings, and v) conducting negotiations for settlement in criminal proceedings.
May 25, 2012
Japan Federation of Bar Associations