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1. Criminal proceedings and victims
People who have suffered damage due to crime, or victims of crime, are lawfully entitled to make complaints and request that the offender be punished. Relief measures have also been established for cases of non-prosecution by public prosecutors offices. Consideration is given to the victim's situation and sentiment in the course of criminal proceedings, that is, the victim's suffering and wish for punishment of the offender are taken into account in judging the necessity of prosecution under the principle of discretionary prosecution as well as sentencing in trials. Other supportive measures include direct relief to victims by the government to a specified extent, if the victims cannot receive compensation for damage from the perpetrators due to their lack of ability to pay compensation.
In addition to these measures, the Law for Partial Amendment to the Code of Criminal Procedure and the Law for the Inquest of Prosecution (Law No.74 of 2000, referred to as"Law for Partial Amendment to the Code of Criminal Procedure, etc. "for the purpose of this Section)and the Law Concerning Measures Accompanying Criminal Proceedings to Protect Crime Victims, etc. (Law No.75 of 2000, referred to as"Law for Protection of Crime Victims"for the purpose of this Section)were promulgated on May 19, 2000, in order to give more appropriate consideration for and further protection of victims or legal representatives thereof (spouse, lineal relatives and siblings of the victim in the case of death of the victim) (collectively referred to as"victims, etc. "). The former law provides for reduction of burdens imposed on crime victims, etc. when interviewed as witnesses, abolition of the complaint deadline for rape and other offenses to be prosecuted upon complaint, introduction of a system in which victims, etc. are allowed to express their feelings or state their opinions in trial proceedings, and expansion of the scope of persons eligible to request reviews of non-prosecution dispositions to Committees for the Inquest of Prosecution. The latter law provides that:Presiding Judges should make arrangements to enable victims, etc. to attend trial proceedings;courts may allow victims, etc. to inspect or copy trial records for pending cases;and any agreement reaehed between defendants and victims, etc. in a civil lawsuit should be effective as a judicial compromise when included in the protocol of trial in criminal cases.
Including such legal measures, this section will outline how the wishes of victims are reflected in criminal proceedings and how their status and position are protected.
(1)Incident reports and complaints
A crime victim may not on notify the investigating authorities of the incident by furnishing incident report but also notify a public prosecutor or judicial police office of the facts of an offense, thereby making a complaint to request that the offender be punished.
Both incident reports and complaints trigger investigation by the authorities. However, complaints shall constitute a condition for prosecution of offenses such as rape, indecent assault, defamation and destruction of objects. A public prosecution may not be instituted against these offenses that are to be prosecuted upon complaints if no complaint is made or the complaint is withdrawn.
In the case of such offense that is to be prosecuted upon complaints, a complaint may only be filed within 6 months from the date when the victim identifies the offender. However, in the case of sexual offenses such as rape and indecent assault, it is often difficult for the victim to decide to make a complaint within a short period of time due to the mental trauma caused by the offense. In light of this, the Law for Partial Amendment to the Code of Criminal Procedure, etc. has abolished the deadline for making complaints against such offense. This amended provision took effect in June 2000.
Public prosecutors shall promptly inform complainants of any disposition made for the cases concerning the complainants. In case of non-prosecution, other relief measures are available.
(2)Criminal investigation and disposition of cases
When interviewing a victim as an unsworn witness concerning the circumstances of damage, the investigating authorities take note so as not to bring discredit on the victim as well as pay due attention to the victim's position and feelings. In such interviews, the victim's feelings about the damage are often heard and added to the written statements. The victim's feelings of suffering damage may be considered when the public prosecutor judges upon the necessity of prosecution under the principle of discretionary prosecution.
(3)Relief measures for non-prosecution
Japan adopts the principle of prosecution by the state. Under this principle, the right to prosecute is exclusively granted to public prosecutors, with the only exception being what are known as"quasiprosecution procedures"involving applications for committing a case to a court for trial. Public prosecutors are also granted a broad discretionary power upon the necessity to institute public prosecution. However, public prosecutors may misjudge a case and make a decision of non-prosecution against the suspect who should be prosecuted. For this reason, legal procedures have been established for the relief of complainants, victims and others against the disposition of non-prosecution by public prosecutors. These procedures include the right to request reviews to the Committees for the Inquest of Prosecution and the right to file applications for committing a case to a competent district court for trial.
The system of request for reviews by the Committee for the Inquest of Prosecution was established under the Law for the Inquest of Prosecution (Law No.147 of 1948). In light of the spirit of the Constitution, this law was enacted together with the Code of Criminal Procedure on July 12, 1948 (and became effective in the same month), with the aim of reflecting as many public opinions as possible to ensure that the right of public prosecution would be properly exercised. The system of applications for committing a case to a court for trial, which is stipulated in the Code of Criminal Procedure, is designed to allow complainants or accusers to request cases, involving various types of offenses including abuse of authority of public officials, to be committed to courts for trial.
In practice, there is also a non-legal system for relief whereby complainants may appeal against the disposition of non-prosecution by pubic prosecutors to the chief prosecutor of a higher public prosecutors office in order to request the chief prosecutor to exercise the power of supervision. Upon receiving such complaints, the chief prosecutor of the higher public prosecutors office reviews the disposition and notifies the complainant of the result of the review.
(4)Committee for the Inquest of Prosecution
201 Committees for the Inquest of Prosecution have been established nationwide, each with 11 members chosen by lot from the electoral roll for a term of six months. By request or ex officio, the Committees review the disposition of non-prosecution made by public prosecutors and make a judgment of the case being"appropriate for prosecution", inappropriate for non-prosecution"or""appropriate for non-prosecution". Those qualified to make such a request were limited to complainants, accusers, claimants and victims. However, the Law for Partial Amendment to the Code of Criminal Procedure, etc. has provided that the spouse, linear relatives or siblings are eligible to make such a request if the victim is dead. The amendment also stipulates that applicants for review may submit written opinions or related documents to the Committees. The amendment took effect in June 2000. Although judgments of the Committees are not legally binding, Chief Prosecutors of District Public Prosecutors Offices must take into account any judgment of the case being appropriate for prosecution or inappropriate for non-prosecution, and institute public prosecution if he/she considers it necessary to do so.
Table II-29 shows the trends in the number of persons received and disposed by the Committees during the period from 1990 to 1999. The numbers of persons newly received and disposed were substantially high in 1993 because they included Diet members (40, 305persons)who were charged by a large number of citizens of violations of the Regulation of Money for Political Activities Law (quantitative regulation)with respect to donations to them.
Table II-29 Number of persons received and disposed by Committees for the Inquest of Prosecution
Table II-30 shows subsequent measures taken by public prosecutors offices for cases judged to be appropriate for prosecution or inappropriate for non-prosecution, by reason of initial disposition of non-prosecution. In total, 131,828 cases were disposed by the Committees between 1949 (when the Law for the Inquest of Prosecution had taken effect) and 1999, including 16,108 cases judged to be appropriate for prosecution or inappropriate for non-prosecution. Among these cases, prosecution was instituted for 1,077 cases, and 933 persons were convicted (331 persons imprisoned and 602 persons fined) and 76 persons were found not guilty (including Menso adjudication and dismissal of prosecution) (Source:Criminal Affairs Bureau, General Secretariat, the Supreme Court).
Table II-30 Subsequent measures for cases judged to be appropriate for prosecution or inappropriate for non-prosecution, by reason of initial disposition of non-prosecution (1990-1999)
(5)Applications for committing a case to a court for trial
Upon receiving an application for committing a case to a court for trial, with respect to an offense of abuse of authority, from a complainant or accuser who is dissatisfied with the disposition of non-prosecution by a public prosecutor, a district court may make a decision that the case is to be committed to the court for trial, if there are any grounds for such application. Such a decision is deemed to be the institution of public prosecution for the case. The court designates an attorney at law who is to maintain the prosecution and perform the duties of public prosecutor.
Table II-31 shows the number of persons received and disposed in cases in accordance with applications for committing a case to a court for trial between 1991 to 2000.
Table II-31 Number for persons received and disposed in accordance with applications for committing a case to a court for trial (1991-2000)
Where victims are deemed to be unable to give sufficient statements as witnesses in the presence of defendants due to mental pressure or in the presence of particular spectators, judges may order such defendants and particular spectators to leave the court. The court may deem the trial session closed to the public where unanimous decision is made among the judges that public order or good morals might otherwise be undermined. The examination of a witness may also be conducted out of court or on a day other than the fixed date for public trial, in light of the importance, age, occupation, health and other conditions of the witness as well as the significance of the case. Under the Law for Partial Amendment to the Code of Criminal Procedure, etc. , the court may allow a witness to be accompanied by a person whom the court considers appropriate when the witness gives statement in the case where the court considers that the witness might otherwise feel extremely insecure or nervous. The Law also provides that the court may take measures so that the defendant and the witness may not see each other (shielding measures)in the case where the court considers that the witness might feel pressure or his/her peace of mind might be substantially disturbed when giving statement in the presence of the defendant. Furthermore, it is provided under the Law that, in questioning of a victim of rape or other offenses as a witness, the witness may be seated in a place other than the place where witnesses are usually seated when questioned. The judges or parties involved in the lawsuit may then examine the witness by audiovisual communication through the transmission of images and sound (video-link system).
Furthermore, in order to protect witnesses during examination, due attention must be paid not to ask questions that may bring discredit on the witness even if they are necessary for challenging the credibility of evidence by the witness. Intimidating or insulting questions are also prohibited.
The Law for Partial Amendment to the Code of Criminal Procedure, effective since September 1999, provides (1) that Presiding Judge may, on certain conditions, restrict questions concerning matters that would reveal the address or other details of a witness, and (2) that, when giving opportunities to know the name and address of a witness, etc. or to inspect evidential documents, public prosecutors or attorneys at law may ask the opposing party to ensure that matters that would reveal the address or other details of a witness, etc. shall not be made known to the defendants or other parties concerned, and that the security of a witness, etc. shall not be threatened in any other way.
Traditionally, the feelings and opinions of victims, etc. have often been revealed in public trial when public prosecutors, etc. submit written statements to the court that include the feelings of victims, or when victims, etc. are given the opportunity to express their feelings under examination as witnesses. Under the Law for Partial Amendment to the Code of Criminal Procedure, etc. , the court shall give victims, etc. the opportunity to state their opinions on the date of public trial if they offer to express their feelings about damage and opinions concerning criminal cases.
The Law for Protection of Crime Victims also provides that Presiding Judge of a court with jurisdiction over a pending criminal case shall make arrangements to ensure that victims or their legal representatives may attend public trial proceedings if they file an application to that effect.
(7)Compromise in criminal proceedings
The Law for Protection of Crime Victims has introduced a system of compromise in criminal proceedings on civil suits. This enables the defendant and victim, etc. in a criminal case to jointly request that any agreement reached between them in a civil suit related to the criminal case be included in the protocol for the trial. Any such agreement included in the protocol shall have the same effect as a judicial compromise.
(8)Protection of safety of victim, etc.
For the protection of safety of victims in the course of criminal investigation and public trial, it is provided by law that intimidation of witness shall constitute a criminal offense, in order to prevent forced interviews without good reason or intimidation by word or gesture. Where there are sufficient grounds to suspect that the defendant may harm or intimidate the victim or the victim's relatives, the defendant may not be granted release on bail. If the defendant actually resorts to such acts, release on bail may be revoked.
The code of conduct concerning criminal investigation by the police provides that measures must be taken to protect victims. Where a witness or unsworn witness in a criminal case is injured or killed by others in connection with his/her statement or appearance at the police, the government shall provide medical treatment and other benefits under the Law Concerning Compensation for Damage to Witnesses, etc. (Law No.109 of 1958).
(9)Information to victims
Victims may attend hearings on criminal cases, which are held on fixed dates in open courts. Information is provided to victims, such as notification of the result of disposition of the case and inspection or copy of trial records, etc.
a. System of notification to complainants and victims
When a public prosecutor initiates public prosecution or makes a disposition of non-prosecution on a case for which a complaint has been made, the public prosecutor shall promptly inform the complainant to that effect. In the case of a disposition of non-prosecution, the public prosecutor shall inform the complainant of the reason for such disposition when so requested.
In addition, a system of notification to victims was introduced in public prosecutors offices in 1991 to inform particular persons including victims of the results of disposition and trial in the cases concerned. Auniform system of notification to victims, etc. was introduced nationwide in April 1999. This system covers cases in which victims have been killed or other serious cases, as well as cases for which public prosecutors have interviewed victims, etc. In such cases, victims are asked whether they need notification on the cases concerned, and notification shall be made to them if they express such need or specifically request information. Notification includes the result of disposition on the case, the dates fixed for public trial, and the result of judgment. At the request of victims, etc. , a summary of facts concerning the offense charged, the principal reasons for non-prosecution, the progress of a public trial and other information may also be included in the notification.
Since March 1, 2001, notification may include, under the"Implementation Guidelines for the System of Notification to Victims, etc. ", the due time in which execution of imprisonment with or without labor or penal detention (hereinafter referred to as imprisonment)is to be terminated or the date when the offender was released on parole or upon completion of the sentence of imprisonment at the request of victims, etc. , their representatives as attorneys at law, or witnesses.
As for the police, the"Victim Liaison System"was introduced in July 1996 to provide crime victims, etc. with information related to criminal investigation on offenses including homicide, etc.
b. Inspection of criminal case records
Final records on criminal cases may be in principle made public for inspection. In addition, under the Law for Protection of Crime Victims, courts with jurisdiction over pending criminal cases may allow victims to inspect or copy the record of a lawsuit for which judgment has yet to become final, if the victims request such inspection or copying between the date fixed for the first public trial and the closing of the lawsuit, and the courts find sufficient grounds to grant such request.
In contrast, records of cases of non-prosecution shall not be disclosed in principle. However, it is provided that they may be disclosed when disclosure is deemed to be appropriate to protect public interest or for other reasons. In recent years, as social interest in the problems faced by crime victims has increased, it has become important to give due considerations to victims, etc. and take necessary measures to protect them. In light of this, the Ministry of Justice has developed new guidelines for disclosure of the records of non-prosecution cases to victims, etc. According to the guidelines, objective evidence may be made public for inspection or copying, to the extend that such inspection or copying will not obstruct criminal investigation on related cases or the proceedings of public trials, or will not invade the privacy of any persons concerned, provided that such inspection or copying is deemed to be necessary for the victims to exercise their rights to claim compensation for damage or other rights in civil lawsuits to recover the damage. Such objective evidence includes on-the-spot investigation reports, photographic reports and post-mortem examination reports, and they shall be deemed not to be substitutive.
As for juvenile cases, the"Law for Partial Amendments to the Juvenile Law, etc. " (Law No.142 of 2000) (referred to as the"Amended Juvenile Law"for the purpose of this Section)was promulgated on December 6, 2000 and became effective in April 2001.
To increase consideration to victims, new procedures were established under the Law concerning inspection or copying of records by victims, etc. , hearing of opinions from victims, etc, at their request, and notification to victims, etc.
a. Inspection and copying of records by victims, etc.
Article 5-2 of the Amended Juvenile Law provides that a family court may allow victims, etc. to inspect or copy the records on the case that are related to the facts of delinquency, provided that the victims request such inspection or copying, the commencement of a hearing has been decided, there is any good reason such as the victims, etc. exercising their rights to claim compensation for damage, and the court finds it appropriate to grant such request considering the sound development of the juvenile offender and other circumstances. Those who have inspected or copied such records shall not disclose what they have learned to others without good reason.
b. Hearing of opinions from victims, etc. at their request
Traditionally, family court probation officers have conducted investigation on the condition of victims, etc. in some cases. Article 9-2 of the Amended Juvenile Law expressly provides for hearing of opinions from victims, etc. When a family court receives a request from victims, etc. to state their feelings about damage or opinions concerning the case, the court may hear by itself or order family court probation officers to hear such opinions.
c. Notification to victims, etc.
Article 31-2 of the Amended Juvenile Law provides that a family court may, when receiving a request from victims, etc. , notify them of (1) the name and address of the juvenile offender and his/her legal representatives, and (2) the date of decision and summaries of the principle text and reasons. However, such notification may not be made if it would hinder the sound development of the juvenile. Victims, etc. who have received such notification shall not disclose what they have learned to others as those who have inspected or copied records on juvenile cases.