Statement on the Decision of Rejection of the 2nd Appeal for the Retrial of the Osaki Case
On March 6, 2013, the Kagoshima District Court Criminal Division rejected the 2nd request for retrial concerning the Osaki Case (the “Case”). (filed by Ms. Ayako Haraguchi and another petitioner.)
The original incident which led to the Case can be described as follows: A body was found in a cattle barn in Osaki-cho, Kagoshima Prefecture in 1979, and in relation to the Case, Ms. Haraguchi and two others were convicted and sentenced for murder and disposal of the victim’s body, and one other accused was also convicted and sentenced for the disposal of the victim’s body. At a later date, upon a request for a retrial made by Ms. Haraguchi, the Kagoshima District Court decided to open a retrial on March 26, 2002. However, in response to an immediate appeal made by the public prosecutors, the Fukuoka High Court’s Miyazaki Branch overturned the decision to commence the retrial on December 10, 2004, and then, the Supreme Court turned down the special appeal against the High Court decision on January 30, 2006. The Case followed the above-described course, and this is the second time Ms. Haraguchi had appealed for a retrial.
In the proceedings of the Case, despite repeated requests from the defense, the Kagoshima District Court concluded the proceedings of the Case without requesting the public prosecutors to provide a disclosure of undisclosed evidence and a list of such undisclosed evidence to the defense, and rejected the appeal for a retrial by Ms. Haraguchi and another accused.
However, recently conducted retrial cases, such as the Fukawa Case and the 1997 Tokyo murder case of a TEPCO female employee, indicate that the disclosure of evidence held by the public prosecutors was a major driving force leading to the commencement of retrials and further, an acquittal in the subsequent retrials. Furthermore, as regards other retrial cases, such as the Hakamada Case, the Hino-Cho Case and the Higashi-Sumiyoshi Case, undisclosed evidence was disclosed at the retrial stage and such newly disclosed evidence had a profound influence on the proceedings. As shown in these cases, the trend of disclosing evidence at retrials has become an established practice.
Amid such trend, premature rejection by the district court of the appeal for a retrial, without requesting the public prosecutors to disclose the evidence held by them, went against the trend, and this is truly regrettable. In the first place, the evidence which has been collected by investigative institutions is the public’s common property. In light of the general principle of the retrial system (i.e. to save the innocent), access to all of the evidence should be guaranteed for the petitioner’s side, and it should not be accepted that such guarantee may vary depending on the whim of a judicial panel.
It is said that Ms. Haraguchi and the other accused are to lodge an immediate appeal against the ruling. The JFBA will continue to closely monitor the Case, and expects that necessary and sufficient evidence will be disclosed and a fruitful proceeding will be conducted in response to the immediate appeal.
March 7, 2013
Kenji Yamagishi
President
Japan Federation of Bar Associations
