Statement Concerning the Draft Report of the “Special Subcommittee on the Criminal Justice System for a New Era” of the Legislative Council of the Ministry of Justice
Following the “Conference Concerning the Concept of Public Prosecutors,” a series of intense discussions have been held over a period of approximately three years at the “Special Subcommittee on the Criminal Justice System for a New Era” of the Legislative Council, which was established as an advisory panel to the Minister of Justice. Today, a Draft Report was compiled in line with the collective opinions of the members of such Special Subcommittee, including expert members, who are seeking a new concept for the criminal judiciary system, regardless of their individual positions. The JFBA expresses a positive assessment to such work and its sincere respect for the efforts made by all of those involved during the relevant time.
With respect to the audio/video recording of interrogations of suspects, this Draft Report states that it is decided that a system mandating the audio/video recording of the entire process of interrogations is to be introduced, reserving some exceptions, for cases which are to be tried by lay judges as well as cases in which public prosecutors conduct their own investigation. The audio/video recording of interrogations of suspects contributes to enhancing trial proceedings by securing the voluntariness and credibility of affidavits. At the same time, such recording serves as an effective deterrent against illegal or unjust interrogations. Considering its philosophy, the scope set forth in this Draft Report is too narrow. On the other hand, however, it can be evaluated that both public prosecutors and the police have taken a step toward the implementation of audio/video recording for the entire process of interrogations even if only for certain types of cases, since it is a first step toward realizing transparent interrogation for every single case that has been repeatedly called for by the JFBA. As to a new expanded trial implementation of audio/video recording by public prosecutors’ office, as prescribed in the Draft Report, such trial should be implemented as broadly as possible even regarding cases not covered by this system. The JFBA will strive to make sure the new system will function fully making further efforts as to the audio/video recording of interrogations involving the courts and the appropriate defense practice by defense counsel. Eventually, when the system is to be reviewed after a certain period of time, the JFBA will seek to achieve the transparent interrogation for every single case together with the public that has been called for by the JFBA for a long time.
With regard to wiretapping communications, since wiretapping communications is a type of investigation method that violates privacy of communication and thus violates personal privacy, the JFBA has been opposing its easy expansion. In the Draft Report, however, the scope of crimes to be the target of wiretapping communications has been largely expanded. Even though it requires a certain organizational nature in addition to the pre-existing complementary requirement as to the crimes which are newly to be included in the scope, we cannot help but express our strong concern over possible human rights violation and abuse of the system. The JFBA will strictly monitor the operation of the system and, as may be necessary, examine as to proposing alternative systems such as establishing an independent third-party institution.
The Draft Report describes the introduction of systems which will enhance the current practice including (i) the expansion of the court-appointed attorney system to all cases involving detained suspects, (ii) the expansion of the system for disclosure of evidence including the provision of lists of evidence, (iii) the grant of the right to request a pretrial arrangement proceeding for the defendant, and (iv) the establishment of new provisions concerning concept of judgments on physical detention. It is probable that certain caution should be exercised regarding the so-called plea-bargaining system, which will be introduced at this time, and there are a number of issues which will need to be examined in the future, such as the preferred system for the disclosure of evidence at retrials. However, the JFBA shall evaluate it positively, as a whole, as a new step in the flow of criminal judicial reform, which the JFBA has been sincerely addressing since the 32nd JFBA Convention on the Protection of Human Rights held in 1989 in Matsue City, Shimane Prefecture, from the aspect of seeking to achieve a criminal judiciary system acceptable to public by: (i) departing from the current concept of investigation and trial which is unique to Japan which excessively depends upon interrogations and relies heavily on affidavits, (ii) enriching defense activities for suspects and defendants, and (iii) giving more consideration to victims of crime, etc.
The JFBA strongly hopes that, after the Draft Report is examined by the Legislative Council and it is filed to the Minister of Justice, the amendment bill will be submitted to the Diet and enacted thereafter promptly.
The JFBA expects all attorneys to conduct their legal practice under the new system in accordance with the principles of such system. Furthermore, seeking to establish a criminal judiciary system which avoids the occurrence of false charges, the JFBA will review the system continuously with relevant parties and shall put its effort to the fullest extent to achieve a criminal judiciary system which is more desirable to the public beyond the current reform.
July 9, 2014
Japan Federation of Bar Associations