In 2001, the Justice Reform Council of Japan issued a report entitled "Recommendations of the Justice System Reform Council - For a Justice System to Support Japan in the 21st Century“, which I wish to digest hereinbelow, for legal research purposes of the visitors of this blog.
The Justice System Reform Council report sought “to clarify the role played by justice in Japanese society in the 21st century and to examine fundamental measures necessary for the realization of a justice system that is easy for the people to utilize…”. (Article 2, Paragraph 1 of the Law concerning Establishment of the Justice System Reform Council).
May I digest its recommendations below, for legal research purposes of the visitors of this blog.
“x x x.
Concrete measures along the following lines should be adopted from the standpoint of achieving more thorough and speedier trials:
• A new preparatory procedure presided over by the court should be introduced in order to sort out the contested issues and to fix a clear plan for the proceedings in advance of the first trial date.
• To achieve the thorough ordering and clarification of the contested issues, it is necessary to expand the disclosure of evidence. For that purpose, rules regarding the timing and the scope of the disclosure of evidence should be clearly set forth by law, and a framework that enables the court to judge, as necessary, the need for the disclosure of evidence should be introduced as part of the new preparatory procedure.
In considering the concrete form that the above-mentioned system should take, studies must be given to the role and the authority of the court in such a procedure (including the scope of judgment by the court over matters such as the admission of evidence and measures to secure the effectiveness of court direction for trial management) and to what the rights and duties of the parties should be in that procedure, while also paying attention to the relationship with the principle of avoiding prejudice. In addition, in connection with clarifying the rules regarding the disclosure of evidence, it is necessary to make rules that can avoid abuse of such disclosure (threats to witnesses, the danger of destruction of evidence, the danger of ruining the reputation or infringing the privacy of those involved).
From the standpoint of the primary purpose of criminal proceedings, the trial should in principle be held over consecutive days to the greatest extent possible. To hold the trial over consecutive days is an almost indispensable precondition when introducing the new popular participation system to the proceedings. Although the current rules of criminal procedure already contain a similar provision, due to its lack of effectiveness, related systems must be rearranged to enable the trial to be held over consecutive days, including clearly proclaiming this principle in the form of law.
In addition, there is an opinion that a limit should be fixed by law for the duration of proceedings for trial in the first instance. The necessity of this measure should be considered further paying attention to the relationship with holding the trial over consecutive days.
While there is a difference in views regarding the current state of affairs of operation of the hearsay rule (which basically bans admitting as evidence testimony whose contents are hearsay, or written records of statements made outside the trial instead of testimony at the trial), the principles of directness and orality (the principles that the court itself should decide the case by directly examining evidence and witness testimony, as well as hearing the oral arguments of both parties in open court) might be reversed, leading to the emasculation of the hearsay rule, if the trial is based on the examination of such written records as a result of a mistaken operation of the hearsay rule.
The focus of the problem is centered on how the trial proceedings of truly contested cases can be enriched and vitalized based on the spirit of directness and orality. In particular, in relation to the introduction of the new popular participation system in the trial proceedings, these demands will become even greater in order to secure meaningful participation by the saiban-in (lay members of the judicial panel), discussed later. It is the proper manner of criminal trial that, in truly contested cases, both parties actively make allegations and present evidence to clarify the contested issues, in concentrated proceedings, and on that basis the judges (and the saiban-in in the case of proceedings in which the saiban-in participate) then form their decisions. The related systems should be considered bearing that in mind.
In order to realize thorough and smooth proceedings, the court and both parties (prosecutors and defense counsel) naturally are required to assume the attitude of cooperating with and mutually supporting each other, with basic trust, making efforts in every capacity to improve their ability to manage the trial proceedings and the quality of their litigation activities respectively.
With that understanding in mind, it is important to enable the court to conduct proper and effective trial direction, when necessary, from the standpoint of thorough and smooth trial management; and study must be given to what concrete measures should be undertaken to secure this.
Distinguishing contested cases from uncontested cases and taking steps to make investigations and trial proceedings more rational and efficient are significant from the standpoint of thorough and prompt trials. As has been pointed out, introduction of the guilty plea system, which is followed in the Anglo-American legal system, as a concrete measure to that end, contains problems in terms of whether it is appropriate to let the defendant himself or herself dispose of the case and of the relationship with how the sentencing proceedings should be conducted; and further study is warranted, with possible reforms of the existing systems (summary order proceedings, simplified trial proceedings) also in the perspective.
X x x.
Establishment of Public Defense System for Suspects and Defendants
› A public defense system for suspects should be introduced, and a continuous defense structure covering both the suspect stage and the defendant stage should be established.
› The organization that manages the public defense system should be fair and independent, and public money should be introduced for operation of the system through a proper mechanism.
› While it is appropriate that technically the courts appoint and remove the defense counsel as in the case of the current court-appointed defense counsel system for the defendant, the above-mentioned organization should be responsible for the other services concerning administration of the system.
› The above-mentioned organization should take responsibility for the administration of the system vis-à-vis the people, and should establish a system that can offer thorough defense activity nationwide. In particular, it is critical to establish a structure that can support the effective implementation of the new popular participation system in the trial proceedings.
› In considering the structure and the management method of the above-mentioned organization and how to supervise it, respect should be given to the need to ensure transparency and accountability in order to ensure that it is worthy of the investment of public money.
› As the autonomy and the independence of the defense activity in the individual case must not be damaged even under the public defense system, this should be sufficiently taken into consideration in regard to designing as well as administering the system.
› The bar associations should actively cooperate in the establishment and management of the public defense system, taking into account the standpoint of the lawyer system reform, and at the same time should recognize that they themselves bear a serious responsibility to ensure the quality of the defense activity and should autonomously develop suitable arrangements for it.
› Special attention should be paid to those especially in need of help, such as the disabled and the young.
› Active consideration should be given to the public attendant system at juvenile hearing proceedings.
X x x.
Based on the following ideas, broad consideration should be given as to how the concrete system should be and the conditions for it, and on the basis of that consideration a continuous defense structure covering both the suspect stage and the defendant stage should be established.
• The organization that manages the public defense system should be fair and independent, and public money should be introduced for operation of the system through a proper mechanism.
• While it is appropriate that technically the courts appoint and remove the defense counsel as in the case of the current court-appointed defense counsel system for the defendant, the above-mentioned organization should be responsible for the other services concerning administration of the system.
• The above-mentioned organization should take responsibility for the administration of the system vis-à-vis the people, and should develop a system that can offer thorough defense activity nationwide. In particular, it is critical to develop a structure that can support the effective implementation of the new popular participation system in the proceedings. For that purpose, for example, measures might be considered such as hiring full-time lawyers or contracting with individual lawyers or lawyer corporations.
• In considering the structure and the management method of the above-mentioned organization and how to supervise it, respect should be given to the need to ensure transparency and accountability in order to ensure that it is worthy of the investment of public money.
• As the autonomy and the independence of the defense activity in the individual case must not be interfered with even under the public defense system, this should be sufficiently taken into consideration with regard to establishment and management of the system.
• The bar associations should actively cooperate in the establishment and management of the public defense system, taking into account the standpoint of the lawyer system reform (see Part 3 of Chapter III, "How the Legal Profession Supporting the Justice System Should Be," below), and at the same time should recognize that they bear a serious responsibility to ensure the quality of the defense activity and that they themselves should reinforce that structure.
• Special attention should be paid to those especially in need of help, such as the disabled and the young.
X x x.
As a result of the revision of the Juvenile Law (Law No. 142 of 2000), a system for a court-appointed attendant for juveniles was introduced, for cases in which prosecutors participate in the juvenile hearing proceedings. However, taking into account the special nature of juvenile cases and the need for balance when juvenile suspects are also covered under the public defense system, active study must be given to a public attendant system for other juvenile hearing proceedings, as well. In that study, consideration must also be given to the structure of juvenile hearing proceedings, the manner in which functions are shared with family court probation officers, and the role of the attendants.
The monopolization of prosecutions by public prosecutors and the granting of discretion over indictments to public prosecutors are necessary to ensure uniform and fair exercise of the public prosecution authority nationwide, and to enable concretely reasonable dispositions according to the circumstances of each individual suspect. Hereinafter, even more appropriate operation of the system is expected in order to meet the expectations and achieve the trust of the people.
At the same time, it is important to more directly reflect public opinion in the exercise of the public prosecution authority. The Inquest of Prosecution system was established to reflect public opinion in the exercise of the public prosecution authority in order to secure its fairness (the members of the Inquest are selected from the voters by lot) and has great significance as a part of the system of popular participation in the justice system. Although this system has been criticized on various grounds, it has played a considerable role. While paying attention to the guarantee of the due process of law for suspects, a system should be introduced that grants legally binding effect to certain resolutions of the Inquests of Prosecution in order to further expand the role of those Inquests, after thoroughly considering the structure, authority and procedures of the Inquests of Prosecution, as well as who files the indictments and conducts the prosecution at trial.
x x x.
New Forms of Investigations and Trial Proceedings that Can Respond to the New Era
› With regard to the introduction of new investigative methods such as the immunity system, consideration should be given from multi-faceted viewpoints to what the proper system is for meeting the social and economic changes in Japan in the coming age and the corresponding changes in the crime situation and crime trends, while respecting the import of the guarantee of human rights in the Constitution.
› Measures to ensure the cooperation of witnesses and measures to protect witnesses should be considered, from similar points of view.
› The international mutual investigation and mutual judicial assistance systems should be further expanded and strengthened under the guarantee of due process of law.
Measures to Ensure Cooperation of Witnesses, Measures to Protect Witnesses
As it goes without saying that the cooperation of witnesses is indispensable for criminal justice, measures to ensure the cooperation of witnesses will become even more important amid the changes in society in the coming age. This matter should be thoroughly considered from various viewpoints, giving some thought to the approach of expanding the system for pre-indictment examination of witnesses under existing law. On the other hand, as it is necessary to offer the witnesses proper protection as a precondition to securing their cooperation, consideration also should be given to measures to protect witnesses.
Expansion and Strengthening of International Mutual Investigation and Mutual Judicial Assistance Systems
As mentioned above, crimes are becoming more internationalized, and it is frequently pointed out that it is necessary for all countries to effectively and efficiently prevent and eradicate crimes in a cooperative manner. Bearing this in mind the international mutual investigation and mutual judicial assistance systems should be expanded and strengthened, under the guarantee of due process of law.
X x x.
Issues Related to Custody of Suspects and of Defendants
a. Measures to Resolve Problems that Have Been Pointed Out Regarding Custody of Suspects and of Defendants
Various concerns have been pointed out regarding the custody of suspects and of defendants, such as how daiyo kangoku (use of custody facilities in police stations in lieu of detention facilities) should be, possible introduction of pre-indictment bail system, how defense counsel's right to meet with suspects in detention should be, issuance of warrants, and how determinations with respect to requests for post-indictment release on bail should be (Recommendation of the United Nations Human Rights Committee, etc). It is difficult to reach a concrete immediate conclusion on these matters, because there are various ways of thinking arising from differences in assessments of the current state of affairs. Nevertheless, insofar as the mission of the Japanese criminal justice system is to get to the truth of the cases under the guarantee of due process of law, it is a matter of course that improper custody of suspects and of defendants must be prevented and rectified. While carefully examining the causes underlying the concerns that have been pointed out, consideration should continue to be given to the reform and improvement of both the systemic and operational aspects, within the whole structure of the criminal procedure.
With Regard to Measures to Ensure the Propriety of Questioning of Suspects
The questioning of a suspect, so long as it is conducted properly, contributes to the discovery of the truth, and, in the event the suspect who actually committed the crime truly regrets the crime and confesses, it also contributes to his or her rehabilitation.
On the other hand, however, it cannot be denied that there are in reality some cases where questioning lacks propriety, arising out of an excessive emphasis on confessions of suspects. Insofar as the mission of the Japanese criminal justice system is to get to the truth of cases under the guarantee of due process of law, questioning of suspects must not be improper, and measures to prevent improper questioning naturally are necessary.
Accordingly, a system should be introduced that imposes the duty of making a written record, for every occasion of questioning, regarding the process and the circumstances of the questioning. In connection with the introduction of such a system, necessary measures must be established to secure the accuracy and objectivity of such records (for example, an approach may be considered in which the matters to be recorded are specified, those matters are recorded on a form, and the record is then stored safely under a proper control system that prevents anyone from altering or revising the record at a later time).
In addition, while there are some opinions that audio and video recording of the questioning itself and the attendance of the defense counsel at the questioning are necessary, it is difficult to decide with certainty whether to introduce such measures at this stage because careful attention should be paid to such measures with regard to the function and significance of the questioning of suspects in the whole structure of the criminal procedure. Thus, these should be regarded as matters to be considered in the future.
Rehabilitation of Offenders, Protection of Victims
The criminal justice system of Japan plays important roles in the reintegration of offenders into society and in the rehabilitation of offenders so that they do not commit crimes again. This not only contributes to the welfare of the offenders involved themselves, but also contributes to maintaining the peaceful order of the society as well as securing the safety of the people's lives. As such, these roles will become even more important in the future society, and adequate attention should be paid to strengthening the system and the human resource structure for correction and rehabilitation of offenders.
Volunteer probation officers have played an important role in rehabilitation of offenders, in cooperation with (professional) probation officers; and the system of volunteer probation officers also has significance as a system for popular participation in criminal justice, in that volunteer probation officers engage in the service relating to the rehabilitation of offenders without pay as citizen volunteers. However, the difficulty of securing suitable persons due to the aging of the existing volunteer probation officers and other factors has been pointed out, so, in order to further strengthen this system, measures should be considered for securing suitable persons from a broad spectrum of the people to serve as volunteer probation officers, including the possibility of payment of expenses.
On the other hand, in criminal justice, in the past little attention was paid to the viewpoint of safeguarding the rights of victims. Recently, however, as social concern for this issue has risen considerably, it is recognized anew that further attention and protection to victims and bereaved family members is called for, and measures are being taken for that purpose (establishment of the liaison conference for crime victims of the relative government agencies, enactment of two laws concerning the protection of crime victims). As it is important to pay adequate attention to the protection of and relief for victims in the criminal proceedings in order to ensure the trust of the people in the criminal justice system, necessary studies should be undertaken for further strengthening of measures. In addition, it is necessary to establish a broad social support system that includes psychological and material care for victims..
Popular Participation in the Management of the Courts
Reflecting the sound common sense of the people in court management will lead to an elevation in the confidence and understanding of the courts by the people and will in turn lead to the strengthening of the popular base of the justice system. Currently, at each Family Court, a Family Court council (whose members are selected from employees of local public bodies and other persons of knowledge and experience outside the three branches of the legal profession) is established, which is to express its views with respect to the entire range of management of the Family Court. Measures should be introduced to enable the views of the people to be reflected broadly in the management of the courts, such as by reinforcing the Family Court council system and newly establishing in the District Courts bodies similar to the Family Court councils.
With Regard to How Supreme Court Justices Should Be Appointed, etc.
Under the current system, the Emperor appoints the chief justice of the Supreme Court based upon the nomination by the Cabinet, and the Cabinet appoints the associate justices (Article 6, Section 2 and Article 79, Section 1 of the Constitution, and Article 39, Sections 1 and 2 of the Court Law). However, the processes for nomination by the Cabinet and for appointment are not necessarily transparent, and problems have been pointed out, such as the entrenchment of fixed proportions for the numbers of justices who come from each field. The current situation should be reconsidered and, from the standpoint of strengthening the people's confidence in the justices of the Supreme Court, studies should be made on appropriate mechanisms for the purpose of securing transparency and objectivity with regard to the appointment process, while paying due respect to the importance of the position. (The system of the Justice Appointment Consultation Commission, established in 1947 pursuant to the provisions of the Court Law, is of reference.)
In addition, it has been observed that the system for popular review of Supreme Court justices has become a dead letter. The current situation should be reexamined and, from the standpoint of strengthening the people's confidence in the justices of the Supreme Court, studies should be made on measures to increase the effectiveness of the system for popular review of Supreme Court justices, such as by making efforts to reinforce the disclosure of information related to each individual justice subject to review so as to make it possible for the people to make meaningful judgments.
See:
http://www.kantei.go.jp/foreign/judiciary/2001/0612report.html
