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Monday, May 28, 2012

SENTAKU MAGAZINE

Overruling doubt to indict: underbelly of Japan's reform

The April 26 acquittal in Tokyo District Court of former Democratic Party of Japan chief Ichiro Ozawa signified total "defeat" for public prosecutors in view of the strong possibility, as a journalist on judicial matters said, that the prosecutors had maneuvered a "prosecution inquest committee," an 11-member citizens' judicial panel, into sending Ozawa to court to make up for their own failure to do so earlier.

The journalist pointed out that public prosecutors can "control the evidence" submitted to such a panel.

At a time when courts are inclined to accommodate the public sentiment that ordinary citizens' perspective should be respected in criminal proceedings, the Ozawa case shows that the district court barely managed to maintain the principle of in dubio pro reo, which means that the defendant shall not be convicted if doubts about his or her guilt remain.

Ozawa was indicted "forcibly" by lawyers serving as prosecutors in January 2011 on a charge of conspiracy to falsify political fund reports for his political funds management body Rikuzankai after a Tokyo citizens' panel had voted a second time to indict him. This was after the special investigation squad of Tokyo District Public Prosecutors twice decided not to indict him owing to a lack of evidence. The "forcible" indictment was in line with two changes in Japan's judiciary system since May 2009:

(1) Giving citizens' judicial panels across the nation the power, under certain conditions, to indict an individual whom the prosecutors decide not to indict.

(2) Letting citizens participate as "lay judges" in trials for severe crimes.

Both measures are aimed at introducing "citizens' participation" into the criminal proceedings, which in the past had been handled exclusively by legal professionals.

Even though the district court found Ozawa innocent, the ruling showed that his innocence was gray. The lawyers serving as prosecutors in the trial have appealed the ruling to the Tokyo High Court.

In a separate trial, Tomohiro Ishikawa and other former secretaries of Ozawa, were found guilty in connection with falsification of the fund reports. But the public prosecutors office decided not to indict Ozawa because it could find no concrete evidence to substantiate conspiracy.

The inquest panel reversed the prosecution's "nonindictment" decision even though very few, if any, had expected that the panel would be able to find evidence needed to convict Ozawa. The motivation behind the panel's decision was to have the court pass final judgment in view of widespread suspicion among the public about Ozawa's actions.

Therein lies the danger of the forcible indictment system. It could end up giving priority to having a court rule in a case even after public prosecutors decide there is not enough evidence to bring a suspect to trial. Collection of hard evidence plays a minor role, raising concern that the court could succumb to populism.

It is feared that if inquest panels start issuing a large number of forcible indictment orders, two cardinal principles could suffer: the principle of deciding criminal matters solely on the basis of law and evidence, and in dubio pro reo.

It is further feared that, under certain circumstances, the Japanese judiciary system could return to the dark days before and during World War II.

In the trial of Ishikawa and other former secretaries of Ozawa last fall, the court rejected most of the evidence presented by the prosecution against them. Yet it found them guilty based on circumstantial evidence and on contradictions found in their court testimony.

Separately, a guilty ruling came in without concrete evidence in the case of Kanae Kijima, a 37-year-old woman charged with murdering three men who were her lovers. The Saitama District Court, in the trial conducted with the participation of lay judges, condemned her to death, saying in the effect that nobody else except her could have killed the men.

As for the Ozawa case, one criminal attorney has stated that although Ozawa was acquitted after rigid scrutiny of evidence, the whole judiciary system in Japan is becoming more like that of the U.S. in that "presumptions" and "overall image" now play important roles in court decisions.

Since judges fear the acquittal of a large number of suspects, the attorney says, they have no choice but to rely on circumstantial and indirect evidence.

Criminal court proceedings are losing precision, he adds.

It is not a bad thing to enable ordinary citizens to have their views reflected in criminal trials as a way of applying brakes on the self-righteous manner in which professionals like judges and public prosecutors may behave. But unless some restraints are placed on citizens' participation, we could see witch hunts or people's courts.

It has been three years since the judiciary system in Japan went through major changes. If the lay judge system comes under review, so should the system of enabling inquest panels to force the indictment of people who were initially freed by public prosecutors.

One way of reviewing and improving both systems has been suggested by a former head of the special investigation squad at the Tokyo District Public Prosecutors Office: "I believe both systems for giving due regard to opinions from the general public are functioning effectively, but there are some problems in their actual implementation.

"In criminal trials, lay judges consult with professional judges in making court decisions. Legal experts must also sit in on a prosecution inquest panel.

"And their roles must not be limited to expressing opinions and advice. Rather, they should be treated as full members of the panel with the right to vote."

This is an abridged translation of an article from the May issue of Sentaku, a monthly magazine covering Japanese political, social and economic scenes.


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