Victim's participation in the criminal trial in Japan

Transcription

1 Victim's participation in the criminal trial in Japan Prof. Toshihiro KAWAIDE (The University of Tokyo) In Japan, the Code of Criminal Procedure (CCP) was revised last year and the system where a crime victim can participate in a criminal trial was introduced. This system is to be enforced from December 1 of this year. Below, I will report the circumstances where it came to be founded and the contents of this new system. Ⅰ. Circumstances which resulted in introducing victim participating system 1. Victim's status in conventional criminal procedure Till only ten years before, a crime victim has had a legal status only as the way of establishing proof in criminal procedure. So, if the public prosecutor did not consider it necessary for the proof of guilt, there was no opportunity for a victim to testify as a witness in a criminal trial, and he was not even notified of information about the case in which he became a victim. However, social concern about a victim increased quickly from the second half of the 1990s. This was the result of some elements. First, victims of some serious cases, for example, the sarin nerve-gas attack on the Tokyo subway system by Aum Shinrikyo, raised voice and mass media came to take it up positively. Second, in response to this social atmosphere, crime and crime prevention became one of important political issues. This movement resulted in the improvement of the practice about a victim treatment of the police and public prosecutor s office, and then, in 2000, two laws for the crime victim protection were enacted. 2. Enactment of the two laws for the crime victim protection and subsequent development The two laws for the crime victim protection founded some systems for the protection of crime victim in the examination of witness, for example, an examination in the way of video-link system, admitted a victim to the statement-of-opinion at the trial and introduced other new systems. This became a big turning point for crime victim policy in that it admitted a victim to the special status in the criminal procedure for the first time. Moreover, a victim came to be able to express opinion not as a witness, but as a victim about his sentiment about damages by introducing the statement-of-opinion system (Article 292-2, CCP). This means that a victim got a chance to 1

2 participate in the criminal trial. However, these revisions maintain firmly the major premise that a crime victim is not a party of the criminal procedure; therefore the new systems are not understood as giving a victim procedural rights. Then, in 2004, the Basic Act on Crime Victims which provided the basic principles of the measures for crime victims, was enacted. The 18th article of the Act provides that the State and Local governments shall take such necessary measures as providing information concerning the progress of criminal procedures and developing a system to expand opportunities to participate in criminal procedures, so that crime victims may get involved in criminal procedures concerning the harm in a proper way. The Master Plans on Crime Victims decided by the Cabinet in 2005 asked the ministry of justice to examine the system where crime victims can participate in the criminal trial directly towards newly introducing a suitable one for our country and implement the measure for it. The victim participating system was introduced as that measure last year. Ⅱ. Basis of victim participation If the criminal procedure is not the place that realizes private revenge of the victim, but the place which realizes public punishment, why is it accepted that the victim participates in it? This point became a basic problem in the foundation of the victim participating system. The fundamental view of the revised law is as follows. The Basic Act on Crime Victims provides that all crime victims shall have rights to be respected for their individual dignity. The criminal justice aims at the maintenance of social order, but it has an important meaning for the recovery of crime victims in the meaning that their right positions in the society are recovered through the offender properly punished and they also recover their mental damage through participating in the criminal procedure and playing a role towards solution of the case. If that is right, it can be said that the victim participating system is based on his right to be respected for their individual dignity which the Basic Act assures. Ⅲ. Contents of the victim participating system 1. Requirements of the victim participation (1) Procedure of the victim participation The court shall admit the participation of the victim on his request to the court when it finds appropriate, considering the nature of the crime, the relation between the victim and the defendant and other situations (Article CCP). The victim who is admitted to the participation can use authorities which the CCP specifies as the victim intervener. Thus, our new system does not admit the crime victim to the participation in the criminal 2

3 procedure on the basis of the claim on the civil affairs originating in a crime such as the action civile in France, but it admits the victim participation on the basis of the status as a victim directly. In this meaning, it can be said that it s a system similar to the Nebenklage in Germany. Moreover, the victim participation is accepted only when the public prosecutor institutes prosecution. The victim himself can neither prosecute the case nor make the public prosecutor his authority of prosecution exercise. That is, this system does not accept the private prosecution. It is similar to the Nebenklage in this point too. (2) Object crimes of the victim participation The victim participation is not necessarily accepted in all crimes. It is limited to (a)the intentional crimes which have resulted in the death of a person, (b)indecent assault and rape, (c)bodily injury or death through negligent conduct in breach of duty of care or in the automobile operation, (d)arrest and confinement, (e)kidnapping and human trafficking. It carries out a reason that the necessity of accepting participation is especially high because these crimes are serious one which infringe on an individual life, body and freedom and the needs for the participation by the side of a victim are great. 2. Victim intervener's authorities The authorities admitted to the victim intervener are (1) attendance to a trial date (Article CCP), (2) examination of the witness (316-36), (3) question to the defendant (316-37) and (4) statement of the opinion about the finding of facts and the application of law (316-38). The lawyer who received mandate can also use them. Among these four authorities, the first is admitted in individual cases in principle. However, when the court finds the attendance inappropriate, it is denied exceptionally. Moreover, the second to the fourth authority are admitted only when the court find it appropriate in individual cases. In a word it is left to the judgment of the court whether these authorities are admitted. In addition, the victim can not raise objections to the court s decision which denies authorities. This is the same also about the judgment which denies the victim participation itself. (1) Attendance to a trial date The victim intervener can attend to a trial date and trial preparation date in which an examination of the witness or an inspection is performed (Article ). However, as above-mentioned, when the court finds the attendance of the victim intervener inappropriate, the attendance to the all or part of the trial date cannot be accepted. The court probably finds the attendance inappropriate in the case where there is much number of victims, the victim does not follow presiding over hearing of the court, or it is planned that the victim testifies as a witness later etc. (2) Examination of the witness The victim intervener can question a witness (Article ). However, the object of his question is limited to the matter required in order to challenge the credibility of the statement by the 3

4 witness about the matter in relation to the mitigating circumstances. This aims at limiting the extent of victim s questioning to impeaching the testimony of the witness at the trial about the matter in relation to the general mitigating circumstances not related to facts constituting a crime, such as a situation of the private settlement by a defendant's relative. (3)Question to the defendant The victim intervener can ask a question to the defendant when it is necessary for performing a statement of opinion (Article ). Although the object of the question is not limited, it is actually assumed in the form of refuting to the statement about the fact which the defendant described at the trial or inquiring about the feeling of reflection of the defendant. (4) Statement of the opinion about the finding of facts and the application of law The victim intervener can state an opinion about the finding of facts and the application of law within the limits of the fact specified as a count after a statement of the opinion of the public prosecutor (Article ). This extends the range of a statement of opinion by the victim even to that the public prosecutor carries out whereas the statement of opinion in the former law (Article 292-2) focuses on a victim's sentiment. On the other hand, since it remains in an opinion to the last, it cannot be used as evidence even for the sentencing.. (5) Character of the victim intervener s authorities The victim intervener's authorities are as above. The examination-of-evidence claim is not admitted as well as the right to set up the object of a trial and right to appeal either. Moreover, the object of the examination of the witness is restricted to the matter about general mitigating circumstances and the victim can not participates in the examination of evidence for proving facts constituting a crime itself. Unlike the examination of the witness, the object matter of the question to the defendant is not limited, but it is demanded that the asking a question is necessary for performing a statement of opinion. It is not directly for finding facts constituting a crime. Moreover, the statement of opinion about the finding of facts and the application of law also expresses an opinion to the last, and it s not the proof activities of facts constituting a crime. Thus, the victim participating system does not accept that the victim intervener proves facts constituting a crime directly. 3. Relation with the public prosecutor When admitting a victim to participating in a criminal trial, there can be different designs about how the relation between the victim and the public prosecutor should be arranged. The revised law provides that the victim intervener or his lawyer can express an opinion to the public prosecutor about the use of the authority by the public prosecutor about the case concerned and the public prosecutor must explain the reason for using or not using his authorities to them if needed (Article ). This Article expresses the basic thinking of the victim participating system that the victim 4

5 intervener and the public prosecutor do not performs each activity independently, but they maintain a close communication during the trial.. This is showed in a form of using each authority by the victim intervener. In using them, he makes a request to the public prosecutor first, and then the notice of the request is made through the public prosecutor to the court. Moreover, in an examination of the witness and a question to the defendant, the notice to the court shall be performed only in the case where the public prosecutor does not do the examination or question himself about the matter which the victim intervener asks for that. Namely, when a request is made from the victim intervener, the public prosecutor has a first right of judgment of who performs the examination or question. As it has appeared in these regulations, the fundamental view of the new law is follows. The public prosecutor performs the activities which he should perform and the use of the victim's own authorities is accepted if it is better for the victim intervener rather than a public prosecutor to carry out them. Because, in addition to this relation between the public prosecutor and the victim intervener, the victim intervener's authority is limited as mentioned above, the victim participation system is supposed that the adversary system with two parties which is the basic structure of criminal procedure of Japan is maintained. In other words, the victim intervener is not necessarily a public prosecutor's auxiliary person in that he performs at the trial for the purpose of acting for realization of self profits, but on the other hand he is not a party at the trial who had the authority on a same level with the public prosecutor and defendant. As mentioned above, the victim participating system is similar to the Nebenklage in Germany in the form, but it can be said that it differs from that considerably, turning our attention to the status of the victim intervener. Ⅳ. Criticism to the victim participating system Some criticize the victim s participation in the criminal procedure on the ground that the existence of the victim who is opposed to the defendant should not be affirmed because the defendant is not presumed to perform the crime with the principle of presumption of innocence until the conviction becomes finally binding. However, a crime victim who appears as the victim intervener at the trial is only one who is procedurally being indicated as the victim in the indictment and it is not premised on the defendant being guilt substantively Therefore it could be said that it is not contradictory to the principle of presumption of innocence in any way. Furthermore, there are some more substantial criticisms. The first is that the victim s participation hinders a proper fact-finding and sentencing at the trial. The second is that it infringes 5

6 the defendant's right of the defense. As for the influence to the fact-finding process, the victim participating system does not accept that the victim participates in the proof of facts constituting a crime directly as mentioned above. By this, it will eliminate the danger that a proper fact-finding is hindered. The object of the defense will not be extended as far as the facts constituting a crime is concerned With regard to the sentencing, the problem is whether it is able to say that the sentence becomes heavy unfairly when a victim does not remain for carrying out the statement of opinion about his sentiments like before but participates as the victim intervener. Some people insist that, since a lay-judge system (Saiban-in seido) is introduced from next year, the sentence probably becomes heavy unfairly by having admitted the victim to the statement of the opinion about sentence However, it s irrational to think that the lay-judges receive influence only from the statement of the victim intervener. They are likely to be influenced by a statement of the defendant similarly. It seems that the new victim participating system replies to and solves the above-mentioned problems... 6