Resolution Calling for the Immediate Amendment of the Code of Criminal Procedure Part IV to Urgently Rescue Victims Who Have Suffered a Miscarriage of Justice
The miscarriage of justice is one of the gravest violations of human rights. The Japan Federation of Bar Associations (JFBA) has directed its efforts to provide support to defendants in many retrial cases. In recent years, we successfully received a not-guilty verdict in each of the following retrial cases: the Ashikaga Case, the Fukawa Case, the Tokyo Electric Power Company’s Female Employee Murder Case, the Higashi Sumiyoshi Case, and the Matsubase Case. Additionally, in the Koto Case and the Hino-Cho Case, the JFBA attained a ruling for the commencement of retrial and, for the former case, the commencement of retrial has become final and binding.
As these retrial cases have received national news coverage, there has been a growing public interest not seen before in retrials in general and the damage caused by miscarriages of justice.
However, in Japan, the hindrance to retrial is so devastatingly great (hence dubbed “The Door That Never Opens”) that the process to provide redress to victims who have suffered a miscarriage of justice moves painfully slowly. Of note is that the situation does not arise from issues discrete to individual cases, but is attributable to the system-wide or structural challenges lurking in the current framework of a retrial.
A retrial is a system aiming to redress the suffering of victims who were convicted due to misrulings. Under the Constitution of Japan (Article 13), which champions the respect for individuals as the supreme value, innocents must never be subjected to penalty and those who suffer a miscarriage of justice must be rescued immediately. In order to ensure this, the due process of law that respects the self-sufficiency of the retrial applicant must be guaranteed in the proceedings on retrial request (Article 31, the Constitution of Japan). Nevertheless, in the existing legislation relating to retrial (Code of Criminal Procedure Part IV, Retrial), only 19 articles have been set forth, which leaves too much to the discretion of courts and thus, the current legal structure fails to systematically ensure the equity and justness of court rulings on retrial.
Therefore, in order to rescue victims of miscarriages of justice, it is imperative to review, across the board and in light of the principles of the Constitution of Japan, Part IV of the Code of Criminal Procedure to determine how it should be. Specifically, legislative amendments are required urgently for the following two issues: (1) instituting a system to ensure the full disclosure of evidence in the proceedings on retrial request, and (2) prohibiting prosecution appeals against a court’s ruling to commence retrial.
In most of the cases that were granted a ruling to commence a retrial, what exerted significant influence on whether the court would grant a retrial was the evidence that was disclosed in the proceedings for the retrial request or during a phase preparing for the proceedings. This demonstrates the magnitude of laying down a system for evidence disclosure in the proceedings on a retrial request.
For ordinary trials, although full disclosure has not been attained yet despite the JFBA’s recommendations, a system guaranteeing disclosure of evidence was set down in the amendment of the Code of Criminal Procedure in 2004, which was further extended in the 2016 amendment. Meanwhile, however, for a retrial request, no provision on disclosing evidence has been laid down to this day. Consequently, the standards and the proceedings for evidence disclosure is unclear, leaving everything to the discretion of courts. This has produced significant differences, referred to as “retrial disparity,” in the ways the courts direct the proceedings toward evidence disclosure.
Therefore, as full disclosure of evidence is required in ordinary trials, a system for full evidence disclosure must immediately be instituted for retrials in order to ensure that the proceedings are guaranteed and will allow retrial applicants to make their activities fruitful and successful.
Additionally, as we have seen repeatedly, even though the commencement of retrial was granted after a long struggle, a prosecution’s appeal against the ruling would prolong the proceedings or, in some cases, cancel the ruling and put everything right back to where it started. This drags out the rescue process for victims of miscarriages of justice and is creating a serious situation. For instance, regarding the cases in which the JFBA is assisting, the former defendants of the Nabari Case and the Hino-Cho Case have already passed away while the former defendants of the Osaki Case and the Hakamada Case have become very old—92 and 83, respectively.
In the first place, retrial is “the last measure” to save individuals who suffer miscarriages of justice. It is a system that exists exclusively for protecting the human rights of those who claim they are innocent.
Therefore, to ensure that these victims are rescued immediately, prosecution appeals of the ruling to commence a retrial must be prohibited.
The JFBA has pointed to the need to improve the administration of the current system and amend Part IV of the Code of Criminal Procedure, and issued the “Opinion on the Amendment of the Code of Criminal Procedure, etc. Concerning Criminal Retrial” in March 1991. However, to this day, after 70 years since the promulgation of the Code, Part IV remains unchanged, with no action whatsoever to make any amendments.
Thus, the JFBA urges that the Government amend Part IV of the Code of Criminal Procedure immediately, incorporating the following:
- Instituting a system that ensures the full disclosure of evidence in the proceedings on a retrial request
- Prohibiting prosecution appeals of rulings to commence retrial
The JFBA will continue to carry out its supporting activities to assist retrials, listening diligently to those who suffer miscarriages of justice and giving its best and concerted effort to amend the Code of Criminal Procedure Part IV accordingly.
October 4, 2019
Japan Federation of Bar Associations