Comment Requesting Careful Deliberations on New System for Participation of Crime Victims in Criminal Trials
Today, the Government adopted and submitted a bill to the Diet to amend the Code of Criminal Procedure aiming to protect rights and interests of crime victims, which includes establishment of a new system enabling crime victims to participate in criminal trials. This system allows crime victims and their bereaved families (hereinafter referred to as crime victims) of cases to be examined by Saiban-in (lay judges) or those cases involving professional negligence leading to injury or death to attend trials, question witnesses about circumstances, question defendants, and make statements including demands for punishment after examination of evidence, if they so wish to.
The Japan Federation of Bar Associations (JFBA) truly regrets that we have not taken sufficient actions to assist crime victims who are not receiving enough support for financial compensation and medical/mental cares. The JFBA strongly requests to immediately establish a law concerning compensation for crime victims and introduce a system to provide court appointed attorneys for crime victims by government budget.
However, regarding the system enabling crime victims to participate in criminal trials, the national debate has not been conducted enough. Even three legal professions, namely, judges, public prosecutors, and attorneys, who are actually involved in criminal procedures, have just started substantive discussions.
On March 7, 2007, an organization (Higaisya to Shiho wo Kangaeru Kai) established by some crime victims reportedly submitted a petition to the Ministry of Justice requesting to review the proposed system and it is apparent that even among crime victims there is opposition to the participation of crime victims in criminal trials.
Considering this situation, the JFBA believes that it is necessary to broadly exchange opinions on this proposed system and the Diet should make thorough and careful deliberation on it.
The JFBA concerns that the proposed system has the following problems which might adversely affect criminal trials.
Firstly, the JFBA agrees that it is important to have defendants heard opinions directly from crime victims, however, in this regard, a system allowing crime victims to make statements has already introduced. Furthermore, it is more efficient in encouraging defendants to search their consciences when opinions of crime victims are presented by public prosecutors or attorneys because defendants would receive the opinions in a calm manner as practically being implemented rather than when crime victims directly question defendants and demand for punishment in court.
Secondly, different from what the criminal proceedings assume, not a few defendants are unable to speak out against public prosecutors' claims due to feeling overwhelmed by consequences of their conduct. When a result of a defendant's conduct is more terrible, he/she is in more emotionally difficult situation to demand serious points at issue, especially, such as self-defense, fault of crime victims, and negligence. The JFBA is afraid that defendants might become speechless if crime victims directly question them in court.
Thirdly, the participation of crime victims could drastically change the fundamental structure provided by the current Code of Criminal Procedure, which consists of two parties, namely, the public prosecutor and the defendant and defense attorney. The JFBA also concerns that opinions and questions of crime victims might be unduly considered and it could have a strong effect on rational judgments and fair sentencing. When the Saiban-in (lay judge) system to be introduced in 2009 was being designed, the participation of crime victims was not taken into account and it would greatly affect the Saiban-in system. If the participation of crime victims is realized before the Saiban-in system is implemented and firmly takes root in Japan, it might disrupt smooth operation of the Saiban-in system.
The JFBA concerns that the immediate introduction of the participation of crime victims in criminal trials could lead to irrecoverable troubles in the future and believes that the Diet should thoroughly discuss on this proposed system so that the public becomes convinced.
Therefore, the JFBA urges the Diet to carefully deliberate this bill.
Japan Federation of Bar Associations
March 13, 2007