| The
"Enzai (False Charge) - Kabutoyama Case" Chapter III Criminal Justice of Japan Viewed in the Angle of the Kabutoyama Case |
Chapter III Criminal Justice of Japan Viewed in the Angle of the Kabutoyama
Case
III-1 Background of False Charges - Problems with Investigation
Process, Trials and Journalism
Why so ever is an innocent arrested and forced to stand on trial?
The essential problem in Japan is in that Okami (historically meaning the
Emperor) or public authorities predominantly rule over the society in terms
of security, social order and even human rights protection. Citizens' self-defense
rights are virtually nil. The authorities over crime are monopolized by
police and are socially recognized as such. Grown up in such a society,
people's attitude toward participation in social events is incomparably
weak against the counterpart in the Unite Sates where police superintendents
and prosecutors are elected by citizens' voting. In addition, there is
a cultural climate where social or group interest is given priority to
human rights and dignity. Police authorities basically assume that their
raison d'etre is in "accusing" and "punishing". All
these factors contribute to frequent abuse of authorized power.
Japan is in this sense an immature society where people' consciousness
of human rights is still low. This is an important background for incessant
occurrences of false charge cases or miscarriage of justice. First of all,
human rights protection for the suspect or accused is far below the international
standard. There is no such system as the Miranda warning principle. Questioning
is executed in a closed isolated room with no presence of attorneys and
the resulting record is considered valid as evidence. The Japanese bar
association members are currently endeavoring to legislate the system of
dispatching official defense counsels for pre-indictment suspects. However,
as long as the current prosecution system exists where even attorneys are
denied access to suspects, it is difficult to say that their right to council
is well under protection.
In the investigation process, investigators often march forward sticking
to their initial theory. They are then eagerly dedicated to obtaining confession
from their suspects in line with their scenario or theory. Besides, they
sometimes turn those involved into false witnesses. It is easy to name
numerous such examples. Most of false charge cases simply begin with "false
confession". To extract such confession, many people are arbitrarily
arrested and severely questioned in Daiyo-kangoku = substitute prison (to
be discussed in III-2). The suspect arrested is held in police custody
in Daioyo Kangoku for 24 hours and are subjected to long-time interrogations
at the police's discretion. The resulting confession record is used as
powerful evidence for prosecutors' conviction at trials. All the more,
police and prosecutors become biased toward investigations dedicated to
obtaining confession. Confession is still highly regarded as the "king
of evidence" in today's Japan. In this context, there will be no significant
improvement in police's tendency to put great emphasis on confession.
Also after indictment, they do not respect "presumed innocence",
an essential rule of the Criminal Law. Prosecutors are proud of the high
percentage of conviction in Japan. Judges start hearings with a secret
preoccupation that there should be no miscarriage in public prosecution.
It seems that a considerable number of judges have an idea that attorneys
and defendants are generally liable to tell a plausible lie. Public responses
including those of mass media also tend to treat suspects and the accused
as "presumed guilty".
While there is no system in Japan in which a certain experience as counsel
is a prerequisite for qualification of judges, there are frequent exchanges
seen between judges and prosecutors. Under this circumstance, it is not
surprising that the two sectors have a strong sense of affinity and unity
as legal professionals. It is also evident however that this situation
is an important seedbed for miscarriage of justice and false charge.
Even after start of trials, institutional disadvantages for defendants
persist, with only limited ways for getting rid of false charge. The most
serious problem may be "discovery of evidence". By law, prosecutors
as public servants are assigned to "pursuit of substantial facts".
If so, they are obligated to disclose all the evidence materials gathered
in the course of investigation. The practice is however that they submit
only the evidence advantageous for them, that is, positive for conviction.
As for the evidence suggesting innocence of defendants, they do not disclose
even its existence, or rather they conceal them in exact way of speaking.
Even if counsels request for discovery of evidence, prosecutors flatly
reject.
In Canada, prosecutors are required to discover all the pieces of evidence
prior to the start of trials, as they learned from the lesson of only one
false charge case. When the counsel requested for discovery of evidence
in the Kabutoyama case trials, the prosecution blamed the counsel for "scouring
after evidence". Courts seldom issue orders for discovery either.
Besides, there is an absolute difference in evidence- gathering faculty
between prosecutors who set out to investigate from an early stage taking
advantage of public authorities and counsel attorneys making seemingly
helpless efforts for counter-evidence. Courts neglect this fact and protect
prosecutors relying on egalitarism of the adversary system for the both
parties.
Unfortunately, there is no such idea in Japan that even if you have 99
criminals run away, you should not punish one innocent person, which is
an essential saying in criminal justice.
It is not just the problem with police and prosecution that suspects tend
to be positively incriminated. Journalistic reports and the entire society
under their influence are thoroughly responsible for this unsustained incrimination.
Journalism has constantly played an important role in fabricating Enzai=false-charge
cases and is still playing at present. In Japan, once someone is arrested
by police and much more brought under public prosecution, the person is
socially branded as guilty. Media take side with and rather promote this
atmosphere and tendency. Police emphasizes at press conferences how the
suspect they arrested is an authentic criminal. Journalism reports the
police announcement almost as it is with little misgiving. Media seldom
make efforts for their own investigation. If they offer some information
that makes their audience suspicious of police announcement, they are marked
down by police. Once this happens, they will never receive from the police
scoop or leak information outside official announcement that may distinguish
them from competitors. It is beyond doubt that police's secrecy and monopoly
of information are a root cause of collusive relationship between police
and media. It seems that mass media boasting their control over society
have given up one of their important duties, that is, watching over the
public authorities from the standpoint of individuals' human rights.
III-2.. Daiyo kangoku = Substitute Prison
The problem of Daiyo Kangoku (substitute prison) in Japan has been recently
adopted as an agenda of the United Nation's Human Rights Committee.
The Code of Criminal Procedure of Japan provides that when the police arrest
a person as suspicious of crime flagrante delicto or by warrant, he or
she must be released or brought before the public prosecutor in 48 hours.
If the prosecutor considers it necessary to hold the person still in custody,
the prosecutor must ask for approval of detention for another 24 hours.
If the judge approves this request, the person can be held in 10-day retention,
and when that ten days is over, another 10-day detention can be requested.
This detention and extension of detention have turned into a normal practice,
so that in case of ordinary crimes, the suspect is usually held in custody
for up to 23 days from arrest to indictment.
The legally right practice of detention should be such that the suspect
is detained in a police prison cell while he or she is under arrest, and
when the judge decides on detention after being brought before the prosecutor,
the suspect must be moved into a jail administered by the Ministry of Justice.
However, in the usual investigation procedure in Japan, most of the suspects
arrested are kept detained in the police station prison after sending to
the prosecutors' office and even after judge's decision for detention.
Juridical grounds for this practice are allegedly found in Article 1 Paragraph
3 of the Prison Law enacted in 1908 providing that a detention facility
belonging to the police station can be used as a substitute for a prison.
That is, Daiyo Kangoku or substitute prison means a prison cell of the
police station.
Despite severe criticism from inside and outside Japan, the investigators
invariably adhere to the Daiyo Kangoku because they are able to detain
their suspects under 24-hour (including bedtime) mental and physical control
of the police authorirties. Here, they execute often brutal questioning
of suspects to eventually coerce him or her into confession for the purpose
of efficient and easy-going settlement of the case.
In contrast, once the suspect is moved to the jail, it turns difficult
for the police to keep on arbitrary questioning for many hours because
they must ask the chief of the jail for approval of moving out and questioning
the suspect.
As briefly mentioned before, interrogations in Daiyo Kangoku usually last
for many hours day and night in a totally isolated situation, so that suspects
are physically and mentally exhausted, often leading to coerced confession.
Besides, the right to council and the right to remain silent are often
violated, and this again results in coerced false confession and therefore
in miscarriage of justice = Enzai.
After arrest of Yamada, she is taken into the examination room of about
7 square meters underground of the Hyogo Prefecture Police Headquarters
and is questioned there for many hours everyday and for 22 consecutive
days that are a maximum of the detention period until she is finally released.
Interrogations are conducted by three examiners constantly surrounding
her on three sides in that closed cell. The examination records reveal
that they continued investigation with no pause of even one day, for upwards
of 10 hours from about 9:00 in the morning sometimes up to 11:30 in the
evening. Rest and meals were taken in the same room in company with the
police officers, so she was under constant strain during detention.
On the other hand, she was thoroughly obstructed from access to her attorneys.
When the attorneys inquired the police of where Yamada was detained, the
police rejected to tell them. When the attorneys requested for interview
with Yamada, the police rejected it initially and later allowed interview
only for 10 to 30 minutes only as long as it is not inconvenient for their
investigation. Extensive violation of the right to council in the Daiyo
Kangoku is another important background for coerced false confession.
III-3. Long Trials and Prosecution's Appeal
Article 37 of Japan's Constitution provides, "In all criminal cases
the accused shall enjoy the right to a speedy and public trial by an impartial
tribunal."
The Kabutoyama Case opened with the trial before the Kobe District Court
in June 1978 and has by now gone through numerous hearings before the Osaka
High Court, the Supreme Court, the second Kobe District Court and the second
Osaka High Court still awaiting final decisions. Years spent by this case
are as many as 21 which is an appalling figure for just one trial case.
In fact, it is the longest trial case in the history of criminal justice
in Japan, going beyond the May Day case and Yakai case. Undoubtedly, this
Kabutoyama case already violates the "right to speedy trial"
provided by the Constitution.
Note that Yamada's punishment demanded by the prosecution is 13-year imprisonment
with forced labor and the prescription for murder crime is 14 years. We
doubt if the trials lasting longer than those periods have any meaning
as a trial or a process for punishment.
We could name some reasons why such an unlawful circumstance persists.
As long as the Kabutoyama is concerned, one of the major reasons should
be the Osaka High Court's remanding decision. The court should have investigated
the case and judged on its own without making the remanding decision. However,
the most serious problem with long trials is in the system which authorizes
the prosecution to appeal before the high court or the Supreme Court. This
is the biggest reason for notorious long trials in Japan.
The police and prosecution invest a large taskforce into investigation,
investigate and gather evidence material taking advantage of their compulsory
investigation power, and bring forth public prosecution = indictment with
a proper confidence in proving guilty. In contrast, defendants hastily
appoint attorneys after indicted and only then, the attorneys begin to
gather materials as counter-evidence. Decision for non-guilty is won usually
with such painstaking efforts of defendants and attorneys. It is definitely
too unfair that neglecting this overwhelming difference in faculty, the
prosecution and defendants must be equally allowed the rights for appeal.
It is utterly unbearable pains, burden and fear for the defendant that
after being judged non-guilty, he or she is forced to do defense activities
again in a superior court.
The Japanese jurisdiction succeeded in leaving the provision allowing prosecution's
appeal in the Code of Criminal Procedure one year and two months after
enforcement of the Constitution of Japan. From the standpoint that the
objective of the appeal system is redress defendants, the prosecution appeal
system is in no way acceptable. Even in Germany with the continental justice
system as in Japan, an important case like murder crime is judged at a
trial with jury consisting of three professional judges and two jurors,
and no appeal is allowed against its verdict. In other words, whether in
continental or British-American system, appeal by prosecution is basically
prohibited in the rest of the world. The Japanese system is apparently
behind those in other developed countries.
Article 39 of the Japan's Constitution provides an estimable idea of prohibiting
double jeopardy. Hence, it is now the time for us to abandon the adverse
practice that spoils the Constitution we boast to the world by means of
arbitrary interpretation. The Code of Criminal Procedure allowing prosecution's
appeal should be amended so that it conforms to the spirit of our Constitution.
This will to our belief pave the way to a juridical system for early avoidance
of miscarriage of justice and prompt recovery of defendants' human rights.
Thank you very much for your reading our "Enzai - Kabutoyama Case"
home page. What do you feel and think about this web site ?
We are looking forward to your frank opinions and suggestions.
Your understanding and sympathy are sincerely welcomed for our activities
for supporting the defendants and improvement of the human rights situation
in Japan. We also appreciate your straightforward opinions to be sent from
overseas to the Japanese government and the Ministry of Justice at
http://www.moj.go.jp
We recognize that besides Japan, there are many other countries across
the world where the human rights situation is still underdeveloped. Let
us walk forward hand in hand until <human rights> developed by human
wisdom in our long history be shared by all human beings as global assets.
| Return to the Top of What is Kabutoyama Case |