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1. Criminal proceedings and victims
Victims of crime are lawfully entitled to make complaints and requests for punishment of the offender.Relief measures are also established for decisions of non-prosecution by public prosecutors.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 the decision 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 a victim 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.74of2000,enforced from June in2000until June in2001)and the Law Concerning Measures Accompanying Criminal Proceedings to Protect Crime Victims etc.(Law No.75of2000,enforced from November in2000)were promulgated on May19,2000,in order to give more appropriate consideration for victims and further protection thereof.Thus,the system to respect the wishes of the victims and to protect their rights has been expanded.
This chapter will overview how the wishes of crime victims are reflected in criminal proceedings and how their status and position are protected.
(1) Incident reports and complaints
A crime victim may not only notify the investigating authorities of the incident by furnishing an incident report but also notify a public prosecutor or judicial police officer of the facts of an offense and make a complaint to request that the offender be punished.
Both incident reports and complaints trigger investigation by the authorities.Complaints constitute a condition of prosecution of offenses such as rape,indecent assault,defamation and destruction of objects.A public prosecution cannot be instituted against these offenses if no complaint is made or the complaint is withdrawn.
In the case of those offenses that are to be prosecuted upon complaint,a complaint may only be filed within six months in principle 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 and the Law for the Inquest of Prosecution have abolished the deadline for making complaints against such offenses.
(2) Victims in criminal investigation and disposition of cases
When interviewing a victim as an unsworn witness concerning the circumstances of damage,the investigating authorities take note not to bring discredit on the victim as well as to pay due attention to the victim's situation 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 are considered as one of the important factors when the public prosecutor decides the prosecution of an offense under the principle of discretionary prosecution.
(3) Relief measures against non-prosecution
Japan adopts the principle of prosecution by the state.Under this principle,the right to prosecute is exclusively granted to public prosecutors.Public prosecutors are also granted broad discretion upon prosecution.However,a public prosecutor may misjudge a case and make a decision of non-prosecution against a 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 a public prosecutor.They include the right to request reviews by the Committees for the Inquest of Prosecution and the right to file applications for committing a case to a competent district court for trial(also called the quasi-prosecution procedure)of complainants,victims and others.
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.147of1948).This law was established and promulgated together with the Code of Criminal Procedure in July1948(and enforced on the12th of that month),with the aim of reflecting the will of the people as much 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 is designed to allow complainants or accusers,who have an objection to the non-prosecution for various abuse of authority of public officials,to request to commit cases to a competent district court for trial.
There is also a non-legal system for relief whereby victims or others may appeal against the disposition of non-prosecution by pubic prosecutors.They may request the chief prosecutor of a higher public prosecutors office to exercise the power of supervision.Upon receiving such complaints,the higher public prosecutors office reviews the disposition and notifies the complainant of the results of the review.
(4) Committee for the Inquest o fProsecution
A total of201Committees for the Inquest of Prosecution are established nationwide,each with11members chosen by lot from the electoral roll for a term of six months.By request or ex officio,a Committee reviews the disposition of non-prosecution made by a public prosecutor 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 aforementioned Law for Partial Amendment to the Code of Criminal Procedure and the Law for the Inquest of Prosecution has provided that the spouse,linear relatives or siblings are eligible to make such a request if the victim is dead.The amendment also provides that applicants for review may submit written opinions or related documents to the Committees.Furthermore,the Law for Partial Amendment to the Code of Criminal Procedure et c.(Law No.62of2004)partially amended the Law for the Inquest of Prosecution(to be enforced on the day specified by a cabinet ordinance no later than five years from the date of promulgation).This amendment sets forth that if the public prosecutor maintains the disposition of non-prosecution after a Committee judges the case to be"appropriate for prosecution,"the Committee may review the disposition once again and may judge that the case is appropriate for prosecution.When this judgment is made,the attorney at law who has been specified by the court institutes public prosecution and sustains it.
Table 3-2-1-1 shows the number of persons received and disposed by the Committees during the ten years from1994to2003.
Table 3-2-1-1 umber of persons received and disposed by Committees for the Inquest of Prosecution(1994-2003)
Table 3-2-1-2 shows subsequent measures taken by public prosecutors for the cases judged by the Committee to be appropriate for prosecution or inappropriate for non-prosecution,by reason of initial disposition of non-prosecution.
Table 3-2-1-2 Subsequent measures for the cases judged by the Committees to be appropriate for prosecution or inappropriate for non-prosecution,by reason of initial disposition of non-prosecution(1994-2003)
(5) Application to commit a case to a court for trial
Where complainants or accusers,who have an objection to a public prosecutor's disposition of non-prosecution for various types of abuse of authority,request to commit a case to a district court for trial,and when there seems to exist a reason for such request,the district courts makes a determination to commit the case to a trial.Due to such determination,a public prosecution is deemed to be raised,and the court designates a person who maintains the public prosecution among the lawyers,and causes him to perform the duties of a prosecutor.
Table 3-2-1-3 shows the number of persons received and disposed for the application to commit a case to a court for trial from1994to2003.
Table 3-2-1-3 Number of persons received and disposed for the application to commit a case to a court for trial(1994-2003)
(6) Formal trial
Where victims are deemed unable to give sufficient statements as witnesses in the presence of defendants due to mental pressure or in the presence of particular spectators,a court or judges may order such defendants or particular spectators to leave the court.The court may make the proceedings of a trial closed to the public where unanimous decision is made by 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 if necessary.Under the aforementioned Law for Partial Amendment to the Code of Criminal Procedure and the Law for the Inquest of Prosecution,the court may allow a witness to be accompanied by a person whom the court considers appropriate in the case where the court considers that the witness might otherwise feel extremely insecure or strained.The Law also provides that the court may take measures so that the defendant and the witn ess 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 a statement in the presence of the defendant.Furthermore,it is provided under the Law that,in questioning of a victim of rape or other such offenses as a witness,the witness may be seated in a place other than the place where witnesses are usually seated when questioned.Also the judges and persons concerned in the case may then examine the witness by audiovisual communication through the transmission of images and sound(video-link system).
In addition,upon giving opportunities to know the name and address of a witness etc.or to inspect evidential documents,in the case that there is a likelihood of occurrence of action to injure etc.the witness etc.,or to frighten or confuse the witness etc.,public prosecutors or attorneys at law may ask the opposing party to ensure that the security of the witness etc.shall not be threatened,such as keeping the address etc.of the witness etc.undisclosed to the defendants or other persons concerned.
Also,the court shall give victims etc.the opportunity to state their opinions on the date of trial if they offer to express their feelings about damage and opinions on the cases.
The number of victims etc.who stated their opinions in trials was a total of22in2000,232in2001,477in2002,585in2003,and331from January to May in2004(Source:Data by General Secretariat,Supreme Court).
Furthermore,the Law Concerning Measures Accompanying Criminal Proceedings to Protect Crime Victims etc.provides that the presiding judge of a court with jurisdiction over a pending criminal case shall make arrangements to ensure that victims or their legal representatives can hear trial if they file applications for that effect.
(7) Compromise in criminal proceedings
The Law Concerning Measures Accompanying Criminal Proceedings to Protect Crime Victims etc.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 a public trial.Any such agreement included in the protocol has the same effect as a judicial compromise.
The number of cases in which the reached agreement was included in the protocol for a public trial based on this system was six in total for2000,55in total for2001,60in total for2002,and54in total for2003,and12in total for the period from January to May in2004(Source:Data by General Secretariat,Supreme Court).
(8) Protection of safety of victim,etc.
For the protection of the safety of victims in the course of criminal investigation and trial,it is provided by law that intimidation of a witness shall constitute a criminal offense in order to prevent forced interviews or intimidation.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.
(9) Information to victims
Victims may hear proceedings on criminal cases that are held on fixed dates in open courts.Information is provided to victims through notification of the result of disposition of the case and their inspection or copy of trial records etc.
a. System of notification to complainants and victims
When a public prosecutor prosecutes 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 of that effect.In 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 some public prosecutors offices in1991to inform particular persons including victims of the results of prosecutor's disposition and of trial on the cases concerned,and a uniform system was introduced nationwide in April1999.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 prosecutor's disposition on the case,the dates of public trial,and the result of judgment etc.At the request of victims etc.,a summary of facts constituting 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 March1,2001,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 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.,attorneys at law as their representatives,or witnesses.Furthermore,since October1,2001,notification may be also given of the scheduled due time when the imprisoned persons are to be released.
The notifications were given in2003for33,376of the disposition results,17,981of the fixed date for the public trial etc.and26,715of the result of trials.And the notifications of the scheduled time of imprisoned persons were given to250victims and witnesses etc.in total.(Source:Data by Criminal Affairs Bureau,Ministry of Justice).
The"Victim Liaison System"was introduced in the police in July1996to provide crime victims etc.with information related to criminal investigation on offenses of homicide etc.
b. Inspection of criminal case records
Final records on criminal cases may in principle be made public for inspection.In addition,under the Law Concerning Measures Accompanying Criminal Proceedings to Protect Crime Victims etc.,courts with jurisdiction over pending criminal cases may allow victims to inspect or copy the records of a lawsuit between the first public trial and the closing of the lawsuit,if the victims request such inspection or copying and the courts find sufficient grounds to grant such requests.
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 consideration to victims and to take necessary measures to protect them.In light of this,a new practice was introduced for disclosure of the records of non-prosecution cases to victims etc.:objective evidence such as on-the-spot investigation reports,investigation reports on taking photographs,and post-mortem examination reports may be made public for inspection or copying even in cases other than traffic accidents,to the extent that such inspection or copying will not obstruct criminal investigation or the proceedings of public trials on related cases,or will not invade the privacy of any persons concerned,provided that such inspec tion 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.Later,it was decided to disclose a written statement included in the record of a case of non-prosecution when all of the following requirements are met:(i)when the civil court requests transmission of a written statement of a specific person included in the record of a case of non-prosecution;(ii)when the content of said written statement concerns an important issue that directly affects the outcome of the civil proceedings,and the content is indispensable-such as being virtually the only evidence-for proving the issue;(iii)when the person making the statement is unable to make a statement in the civil proceedings due to death,being missing,mental or physical incompetence,or serious memory loss,or when the content of the written statement is incompatible in effect with the person's testimony at the civil c ourt;and(iv)when disclosure of said written statement does not involve the risk of becoming a concrete obstacle to criminal investigation or the proceedings of public trials or endangering the life or physical security of the persons concerned,and when the disclosure is not likely to cause damage to the reputation and privacy of the persons concerned.
(10) Advisers to Victims
Since1999,advisers to victims have been assigned at public prosecutors offices throughout Japan.They are engaged in counseling victims,guiding or accompanying them in courts to observe proceedings,assisting them for inspection of records,explaining criminal proceedings etc.,and establishing a network to link them with victim support organizations and groups.
(11) Spousal Violence Counseling and Suppor tCenter
With the entrance into force of the Law for the Prevention of Spousal Violence and the Protection of Victims,women's counseling centers or other suitable institutes established by prefectural governments started to play the role of Spousal Violence Counseling and Support Centers and provide information to utilize protection orders as regulated under the Law in response to the requests from victims.In addition,with the promulgation of the Law for Partial Amendment to the Law for the Prevention of Spousal Violence and the Protection of Victims(Law No.64of2004)in June2,2004(enforced in December2004),appropriate facilities established by municipalities also became eligible to play the role of Spousal Violence Counseling and Support Centers.
(12) Juvenile cases
In order to increase consideration to victims,under the" Law for Partial Amendment to the Juvenile Law etc. "(Law No.142of2000),which came into force in April2001,new procedures for juvenile cases were established for inspection or copying of records by victims etc.,hearing of opinions from victims etc.,and notification to victims etc.at their request.
More specifically,a family court may allow victims etc.to inspect or copy records related to the facts of delinquency of juveniles including those under14years of age,where the victims request such inspection or copying,even during the pendency period before a hearing,provided that there is a good reason such as exercising their rights to claim compensation for damage and that the court finds it appropriate to grant such request after considering its influence on the sound development of the juvenile delinquents,the nature of the offense,the state of the investigation or hearing,and other circumstances.
Also,when a family court receives a request from victims etc.of the offense committed by juveniles to state their feelings about damage or opinions on the case,the court may hear by itself or order family court probation officers to hear such opinions unless the court finds it inappropriate to do so considering the nature of the offense,the state of the investigation or hearing,and other circumstances.
Furthermore,when a family court receives a request from victims etc.,and has made a final decision to conclude the case,the family court shall notify them of the name and address of the juvenile offenders and their legal representatives,and the date of decision and summaries of the principal text and reasons of the decision,unless the court finds it inappropriate to grant such request,considering that there is a likelihood of hindering the sound development of the juvenile offender.