Statement Concerning the “Principles for Public Prosecutors”
The Supreme Public Prosecutors' Office announced their basic principles for public prosecutors, entitled the “Principles for Public Prosecutors (the “Principles”)” on September 30, 2011, today. Such Principles were established following the recommendations, known as “Towards the Revival of Public Prosecutors (the “Recommendations”),” which were announced at the Meeting regarding “how the duties of public prosecutors should be performed” on March 31, 2011; In the Recommendations it was suggested as follows:
“The basic principles which public prosecutors should follow in performing their duties should be clearly indicated/stipulated, and announced in order to clarify missions and roles of public prosecutors within and outside of the Public Prosecutors' Office (the “PPO”),” and “Such principles should be established in line with indications specifically stated in the Recommendations, after much discussion and review on such principles have been made, in which as many public prosecutors as possible should participate, while listening to the voices of people outside of the PPO.”
The Principles state that “Public prosecutors should not always solely aim to pursue a guilty verdict itself,” and “should not have an attitude whereby the more serious the punishment/sentence achieved, the more successful the prosecution has been.” Further, it is stipulated that “Public prosecutors should strive to do their utmost in using their intellectual ability to the fullest extent possible to find out the truth in the cases they are tackling, in order to avoid a situation where an innocent person is found guilty and in order to avoid the situation where the real perpetrator escapes punishment.”
Certain points among the above stipulations are to be commended in the sense that such stipulations are considered to have been made in line with the indications made in the Recommendations, that is, that “the basic principles should be made centering on the following”:
“Public prosecutors should be obliged to guarantee suspects’ and defendants’ rights and to find out the truth behind their cases based upon the evidence in order to avoid the occurrence of miscarriages of justice, and achieve the most adequate form of punishment.”
In the Recommendations, it was pointed out that it would be worthy of including in the principles such a statement to the effect that “Public prosecutors should disclose the evidence giving careful consideration to the benefits of the defendants, in accordance with the provisions of laws and the law of precedents, and the purport of such provisions and precedents.” However, there is no explicit statement contained in the Principles issued today whereby public prosecutors are required to fully and honestly disclose the evidence they have in their possession. Regarding this point, the JFBA finds it regrettable that the above statement has not been explicitly stated in the Principles, even though a similar meaning can be interpreted from one of the actual statements contained in the Principles, namely, that “Public prosecutors should strive to sufficiently collect and grasp/understand the evidence regardless of whether it has a positive or negative effect on proving the suspects’ or the defendants’ guilt.”
Further, it is important to note that most miscarriages of justice have occurred mainly due to the fact of the rights of suspects and defendants having been violated by public prosecutors aiming to achieve their goals of “finding out the truth behind cases,” and “avoiding the real perpetrator escaping punishment.” Considering these points and learning lessons from the past, we are of the opinion that the Principles issued today do not sufficiently state the importance of the respect that should be given to the right of defense for suspects and defendants. It should be reconfirmed that public prosecutors should fully respect the rights of suspects and defendants, and that public prosecutors should not treat suspects and defendants adversely at the time of detention/bailment, or final disposition, simply because such suspects and defendants deny the alleged facts of the crime, or because they exercise their right to remain silent or other rights.
In addition, the Principles lack specific stipulations in relation to issues such as the following:
- Emphasis on objective evidence without too much reliance on records of confession;
- Awareness of the fact that the detaining of suspects is a serious restriction of human rights;
- Refraining from using the detention of suspects as a method of obtaining confessions; and
- Taking corrective measures or making a whistle-blowing activity when awareness is raised of an illegal or unjustified investigation.
The above stipulations should be specifically stated in the Principles, or be clearly stated in the commentaries of the Principles that are to be prepared.
Including the above points, the Principles should be subject to constant review and revision. While appreciating the fact that the Principles have been made and issued, the JFBA will continue to closely monitor how the operation of the Principles is put into practice and will also suggest methods for improvement and strive to put forward its utmost efforts to realize a criminal justice system which avoids the occurrence of miscarriages of justice.
September 30, 2011
Japan Federation of Bar Associations