62nd JFBA General Meeting -Resolution on Achieving Drastic Reform of Criminal Justice by Realizing Transparent Interrogations
In Japan, illegal and unjust interrogations have repeatedly been conducted behind closed doors by investigators to the present time. A large number of miscarriages of justice have occurred due to the circumstances under which it is impossible to verify the processes whereby records of confessions are made. During recent times, cases such as the Shibushi Case, Himi Case, Ashikaga Case, Fukawa Case, and the case of the acquittal of the former welfare ministry bureau chief have made it abundantly clear that numerous miscarriages of justice have been occurring behind closed doors. In particular, the case of the former welfare ministry bureau chief accused of fraud in which the lead prosecutor admitted to tampering with evidence related to the case, has clearly and definitely made us realize the need to drastically reform how investigations and trials should be conducted.
In order to prevent false confessions brought about by illegal and unjust interrogations by investigators, and to realize truly fair trials and eradicate miscarriages of justice, the Japan Federation of Bar Associations ("JFBA") has consistently been urging that it is essential to ensure the following:
- ━ conducting transparent interrogations (visual recording of the entire process of interrogations),
- ━ conducting transparent investigations on juveniles accused of violating criminal laws (conducting video recording of the entire process of investigations),
- ━ the realization of rules of equality of arms or procedural equality, including the disclosure of evidence,
- ━ breaking through from problems relating to detention in the Japanese judicial system, i.e. the so-called "judiciary hostage" problem,
- ━ enhancing the court-appointed defense system (public attendant system for juveniles), and
- ━ abolishing substitute prisons.
In addition, in January, 2011, the JFBA requested the government to newly establish an independent third-party body to determine the causes behind specific cases of miscarriages of justice.
Now, we are in a crucial stage of attempting to tackle and resolve the various issues related to reform of the criminal justice system.
In particular, there is no doubt that conducting transparent interrogations is a pressing and paramount issue, which would help lead to the eradication of illegal and unjustifiable interrogations, and end conflicts and controversies related to the voluntariness and credibility of confessions, and also evolving the structures of both investigations and trials, which heavily rely on "records of confession." This also applies to cases of investigations by police officers of juveniles who have been accused of violating criminal laws.
The recommendations (entitled "towards regeneration of prosecutors"), which were issued on March 31, 2011, after the meeting of the private consultative body of the Ministry of Justice on the issue of "how (interrogations by) prosecutors should be performed," did not include any specific recommendations towards the realization of transparent interrogations. However, it did make recommendations on the range of cases to which transparent interrogations should be applied and that such transparency should be further expanded through the operational practices of prosecutors, and also through maintaining and developing laws in the future. In addition, it was suggested that in the case of suspects having communication problems, and also the so-called special investigation cases in which certain cases are handed to the special investigations unit of a district public prosecutors' office, a trial run of audio and visual recording of the entire process of interrogations should be carried out on a wide scale. Further, it recommended that the trial run should be investigated and verified from various perspectives after approximately one year has passed since its implementation, and that the results of such verification should be announced.
In accordance with the gist of the recommendations, in the event of a suspect being a person who may have difficulty in making themselves understood when making an official statement in Japanese, such as intellectually-handicapped persons, juveniles and foreign residents, the audio and visual recording of the entire process of interrogations should be extensively implemented. Also, it is important to ensure that the audio and visual recording of the entire process of interrogations should be carried out in most, if not all, of the cases handed to special investigation units of district public prosecutors' offices. Further, in the next meeting in which the issue of "how (interrogations by) prosecutors should be performed" is to be reviewed, a decision should be first made to fully implement a system which brings about the realization of transparent interrogations (the visual recording of the entire process of interrogations,) without waiting for a final report to be made.
In the circumstances where an investigative organization with an enormous amount of authority has been found to have faked evidence, it is necessary that all evidence collected by such investigative organization should be disclosed to defense counsel at an early stage to prevent further miscarriages of justice. Further, there is a real need to perform the systemic reforms necessary to realize the substantive equality of the suspect and investigators/prosecutors involved in the criminal procedures.
In order to realize "the principle of non-detention" stipulated in international human rights law, it is necessary to swiftly improve the operation of the current systems relating to detention and bail, and to perform specific systemic reforms. In order to bring to full effect the rights of suspects to receive assistance from defense counsel, a system in which all cases where suspects have been detained will see such suspects being defended by a court-appointed defense attorney urgently needs to be realized. In addition, at the stage when a suspect is arrested, a Public Attendant System for suspects should be enforced, and also the effective functioning of the said Public Attendant System needs to be substantiated and realized.
Furthermore, the role of attorneys attending juvenile hearing proceedings is extremely important from the viewpoint of protecting juveniles from the possible risk of miscarriages of justice, and also in coordinating the circumstances surrounding such juveniles, and supporting their rehabilitation. However, in the current system, the juvenile cases in which court-appointed attorneys are to attend are limited to certain stipulated serious cases. Therefore, there is an inconsistency in the current systems because even if an attorney is appointed for a juvenile suspect, in most cases no attorney will be appointed after the case is assigned to a family court. In the "Tentative Legislative Proposal Related to the Full Public Attendant System," which the JFBA proposed and submitted in December 2009, the JFBA recommended that the scope of the Public Attendant System should be extended for all necessary defense cases of juveniles who are detained until they are sent to a juvenile classification home through rulings to take provisional measures for care and custody. Since that time, efforts have been made which have enabled attorneys to handle such cases in better circumstances and conditions. As explained above, all the necessary conditions to realize the full Public Attendant System have already been satisfied. Therefore, the Public Attendant System should, as soon as possible, be further extended to fully cover all juveniles who are detained.
The JFBA urges achievement of the following:
- By the time the regular diet session opens next year, at the latest, the scope of cases to which conducting transparent interrogations on a suspect (video recording of the entire process of interrogations) should have been extended in steps and fully incorporated into the law. In addition, by that time, conducting transparent investigations (video recording of the entire process of investigations) on juveniles suspected of having violated criminal laws should have been legalized.
- Prior to the legislation described in Paragraph 1. being realized, when each investigational organization conducts investigations, video recording of the entire process of interrogations and investigations should be conducted as widely as possible. In particular, those in positions of relative weakness in terms of being able to give statements clearly, such as foreign nationals, juveniles and those with intellectual disabilities, as well as cases handed to special investigation units of district public prosecutors' offices, video recording of the entire process of interrogations and investigations should, in principle, be conducted when such request is made by a defense counsel, etc.
- A full-scale evidence disclosure system which should include the provision of an evidence list compiled by an investigative organization to defense counsel should be streamlined as quickly as possible.
- The way in which the detention and bail systems are operated should be drastically improved, and measures should be introduced to help secure suspects' custody, i.e., introducing a house-arrest system for certain suspects in which they are required to remain at home with limitations being placed on their conduct. In addition, the criteria and requirements for detention, and the criteria and requirements for grounds for exceptions regarding bail should be tightened. Further, a system for granting bail before prosecution should be established.
- Cases to which the Public Attendant System is applied should be rapidly expanded to all cases in which suspects are detained. In addition, a nationally-funded system should be established in order to defend suspects once they have been placed under arrest.
- The application of the Public Attendant System should be expanded to all cases in which juveniles are detained in juvenile classification homes.
The JFBA will make its utmost effort to achieve the realization of the above described-systems.
May 27, 2011
Japan Federation of Bar Associations