Resolution Calling for the Immediate Amendment of Part IV of the Code of Criminal Procedure to Enable Victims who Have Suffered Miscarriages of Justice to Be Rescued As Soon As Possible
A retrial is a system based on human rights advocacy principles, and it aims to swiftly rescue victims who are innocent but were convicted due to misrulings.
Nevertheless, in Japan, it is so extremely rare for a retrial to be allowed that it is referred to as “The Door That Never Opens.” As such, the retrial process to rescue victims moves painfully slowly.
Such hindrance is not caused by issues in individual cases, and is instead an institutional and structural problem embedded in the current retrial system. This is exemplified by the fact that since the Criminal Procedure Code (Act No. 131 of 1948) came into effect 74 years ago, there are still only 19 articles set forth in the existing legislation relating to retrials (Part IV of the Code of Criminal Procedure concerning retrials).
In many cases in which a decision to open a retrial has been rendered, evidence disclosed through the proceedings on the retrial request was recognized as having a strong influence on the outcome of the retrial. In some of such cases, the investigative agency seemed to have concealed the evidence during the original trial. This clearly shows the importance of legislating to ensure the disclosure of evidence in the retrial request proceedings.
However, there are no provisions in Part IV of the Code of Criminal Procedure that explicitly set forth such disclosure, resulting in it being left up to the broad discretion of the court. When issues regarding evidence disclosure were brought up during a discussion on the 2016 Amendments to the Code of Criminal Procedure and Other Acts (Act No. 54 of 2016; the “amended Code”), although the legislation of such disclosure has not yet been achieved, it led to the inclusion of Article 9, Paragraph 3 in the Supplementary Provisions of the amended Code which states that the national government is to review the disclosure of evidence in trials seeking retrial promptly as needed after promulgation of the amended Code. Consultation sessions involving relevant organizations, including the JFBA, were held in order to contribute to such review by the government. However, such sessions are not currently in progress, and there is no evidence suggesting that the government has made any headway with their review on the matter. There is little room for this lack of legislation regarding such disclosure to be described as anything other than an issue caused by legislative inaction.
Legislation to ensure the disclosure of evidence in retrial request proceedings must be achieved in order to guarantee such disclosure to retrial applicants and aid victims who have suffered miscarriages of justice as soon as possible.
In addition, there have been cases in which a retrial applicant has finally been awarded a decision to open a retrial after fighting for it over many years, but objections filed by public prosecutors against the decision have resulted in further delaying the opening of a retrial or the decision being cancelled and putting everything right back to where it started. As the case drags on, there is further delay to the rescuing of victims who have suffered from miscarriages of justice, and this is causing even more serious problems. For example, the former defendant in the Nabari Cases supported by the JFBA has already passed away, while the former defendants in the Osaki Case and the Hakamada Case are both at an advanced age – 96 and 87, respectively.
The retrial system is structured in such a way that: (i) the process is inquisitorial; (ii) a retrial is allowed only for the benefit of the defendant; and (iii) the purpose of the system is to save the innocent. As such, public prosecutors are merely “representatives of the public interest” who cooperate with court proceedings for such retrial requests. With public prosecutors having such place in the proceedings, there is no need to allow them to be able to file an objection to a decision to open a retrial, and the legislation must be immediately amended to prohibit the filling of such objections. If public prosecutors wish to claim that the final judgment of a particular case is reasonable, their claim is guaranteed to be heard during the retrial, which does not cause them any inconvenience.
Additionally, as already pointed out, there are few articles on retrials in the legislation, and there are no provisions prescribing the handling of retrial proceedings in Part IV of the Code of Criminal Procedure. These facts result in decisions on retrials being left to the broad discretion of the court, and has produced significant differences, sometimes referred to as “retrial disparities,” also in the ways the courts direct the proceedings concerning matters besides evidence disclosure.
In order to not only ensure the rights of retrial applicants in the retrial request proceedings but also guarantee fair and proper judgments by courts, it is necessary to: make it mandatory to set a date for a scheduling conference; guarantee the right to request the examination of facts during proceedings; guarantee the right of those who make such requests to be present at the proceedings on such requests, state their opinions and examine witnesses; make the proceedings open to the public; allow the disqualification of or a challenge to a judge who has been involved in the ordinary first instance or any prior application for retrial in a particular case; and legislate to ensure the proper handling of the proceedings on retrial request including the establishment of a court-appointed defense counsel system for retrial applicants.
The JFBA has worked to provide support to defendants in many retrial cases and helped to win acquittals 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; the Matsubase Case; and the Koto Case.
National news coverage on developments from the above retrial cases has helped to raise public awareness of retrials and the damage caused by miscarriages of justice over the years. Due to such increased public awareness, various civil organizations have been formed with the aim of achieving the amendment of Part IV of the Code of Criminal Procedure, and 127 local assemblies across the country (as of April 19, 2023) have resolved on and/or submitted opinions or requests demanding such amendment.
The JFBA has repeatedly pointed out the necessity of improving conventional practices regarding retrials and amending Part IV of the Code of Criminal Procedure. The “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” was unanimously adopted at the JFBA Convention on the Protection of Human Rights held on October 4, 2019. In addition, the JFBA compiled and published its “Opinion on Amending the Code of Criminal Procedure and Other Acts Related to Criminal Retrial” on February 17, 2023. Despite efforts by the JFBA and others, however, such amendment has not yet been achieved.
For these reasons, the JFBA reiterates its call for the government to immediately amend the legislation with a focus on the following matters, in order to enable victims who have suffered miscarriages of justice to be rescued as soon as possible:
- Legislating to ensure the full disclosure of evidence in retrial request proceedings;
- Prohibiting prosecution appeals against a court’s ruling to commence a retrial; and
- Establishing procedures for retrial request proceedings and adding provisions stipulating such procedures
The JFBA is committed to listening to the voice of such victims with sincerity and continuing to support their bids for retrial while exerting the utmost efforts towards its goal of achieving the amendment of Part IV of the Code of Criminal Procedure.
We hereby resolve as set forth above.
June 16, 2023
Japan Federation of Bar Associations