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Friday, April 27, 2012

ANALYSIS

Jury out on if inquest system lived up to role


Staff writer

The prolonged trial of former Democratic Party of Japan President Ichiro Ozawa marked the first time a Diet member has been tried after being subjected to mandatory indictment by a panel of ordinary citizens who received authorization to review a case prosecutors gave up on.

Legal experts now are split about whether the inquest committee, as the citizen panel is known, can play fairly. The case was taken up even though prosecutors concluded they didn't have enough evidence to convict Ozawa.

Those who praise the mandatory indictment system say the revised Committee for the Inquest of Prosecution system, introduced in 2009, has allowed the public to prevail on the courts to judge people's guilt or innocence, instead of leaving them in the hands of shadowy prosecutors, who were the only ones with such authority and tended to make their decisions behind closed doors.

But other experts say that forced indictments only impose huge burdens on the defendants, who should be protected by the basic judicial principle of "the benefit of the doubt." This means a defendant should not be penalized when suspicions are raised with no solid evidence to back them.

Prosecutors are, in general, very conservative and indict only when they believe they have enough evidence for the court to determine guilt, a tendency that they say benefits the defendant.

Lawyer Satoru Shinomiya believes the Tokyo No. 5 Inquest Committee was right in asking the court to take a stab at the Ozawa case.

"The committee saw evidence that led them to believe that he could be guilty, and they wanted the court, not prosecutors, to decide that," said Shinomiya, professor at Kokugakuin University Law School.

"And it is absolutely fine that the court acquitted Ozawa, because it means the court functioned properly," he said, adding that most courts tend to rubber-stamp convictions as if to confirm the validity of prosecutor-organized indictments.

In January 2010, prosecutors questioned Ozawa about his alleged involvement in falsifying the funds reports issued by his political funds management body, Rikuzankai, in 2004 and 2005. But prosecutors decided not to press charges against the DPJ don, citing lack of evidence.

But in April 2010, the Tokyo No. 5 Inquest Committee reviewed the case and decided there were sufficient grounds to indict. The panel's decision prompted the Tokyo prosecutors to review the case, after which they once again decided not to press charges due to lack of evidence.

But in September that year, after the panel had been replaced with a different set of 11 citizens randomly chosen from valid voters, the committee looked into the case again and said the prosecutors' review was insufficient, triggering a mandatory indictment.

Ozawa's trial also revealed that prosecutors not only forged interrogation records but also submitted a report to the inquest committee that contained wrongful facts and information about the interrogation of a former Ozawa aide, Lower House lawmaker Tomohiro Ishikawa.

The court slammed the prosecutors for the illegal interrogations, calling them unjust, intolerable, and dismissing most of the records as invalid evidence.

"Everything that we learned from this case was because of the mandatory indictment. This was all discovered in an open court. This is significant in a democracy," Shinomiya said.

Before the revision of a related law in 2009, the inquest committee's decisions were used as advice to prosecutors. The decision to give the committee stronger powers by making its decisions legally binding was intended to give the public stronger representation in the justice system.

But lawyer Yasuyuki Takai, a former prosecutor, disagreed. The visiting professor at Aoyama Gakuin University Law School said the illegal interrogation records and reports that were discovered during the trial were "merely a by-product."

"Prosecutors dropped the case twice due to lack of evidence and gave the benefit of the doubt to the person in question," he said, adding that Ozawa did not have to be indicted in the first place. He did criticize the prosecutors for fabricating the records.

Imposing a mandatory indictment when there is a lack of evidence risks being a human rights violation," said Takai, who served as a prosecutor for 26 years. "It's a problem to have two different standards for indictments."

But Shinomiya pointed out that the best thing for the person indicted is to ensure a fair trial by revealing all the evidence necessary so defense lawyers can serve their clients.

On Thursday, Ozawa's leading defense lawyer, Junichiro Hironaka, said that it is true that becoming a defendant in a criminal trial is a huge burden and that indictments shouldn't occur so easily. But he also said that the new mandatory indictment system, along with the lay judge system, were an important part of increasing citizen participation in the judicial system and thus shouldn't be denied.

"What needs to be stopped is for situations like this case, where prosecutors submitted falsified reports that mislead the decisions of the inquest committee," he said. "No one expected this to happen, and this really needs to be changed."

A group of lawyers and journalists on Monday submitted a request to the Justice Ministry and the Supreme Public Prosecutor's Office to thoroughly investigate the falsified records and reports.



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The Japan Times

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