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1 Criminal proceedings and victims
Victims of crime are lawfully entitled to make complaints and request that the offender be punished. Relief measures are also 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 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 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, enforced from June in 2000 until June in 2001) and the Law Concerning Measures Accompanying Criminal Proceedings to Protect Crime Victims etc. (Law No. 75 of 2000, enforced from November in 2000) were promulgated on May 19, 2000, in order to give more appropriate consideration for and further protection of victims. Thus, the system to respect the wishes of the victims and to protect the rights thereof has been expanded.
This section will describe the details 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 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. However, complaints shall constitute a condition of prosecution of offenses such as rape, indecent assault, defamation and destruction of objects. A public prosecution can not be instituted against these offenses if no complaint is made or the complaint is withdrawn.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 6 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 has abolished the deadline for making complaints against such offense.
(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 3 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 of suffering damage may be considered as one of the important factors when the public prosecutor decide the prosecution 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, 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 where the public prosecution is not raised (disposition of non-prosecution) by public prosecutors. These procedures 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).
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 established and promulgated together with the Code of Criminal Procedure in July 1948 (and enforced on the 12th 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 disposition of various abuse of authority of public officials, where the public prosecution is not raised, to request to commit cases to a competent district court for trial. The court which has accepted such request makes a determination to request cases to be committed to courts for trial, when there exists a reason for the request. Due to such determination, the public prosecution is deemed to be raised, and the court will designate a person who maintains the public prosecution among the lawyers and cause them to perform the duties of a prosecutor.
In practice, there is also a non-legal system for relief whereby complainants 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 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 are established nationwide, each with 11 members chosen by lot from the electoral roll for a term of 6 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 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. Although judgments of the Committees are not legally binding, Chief Prosecutors of District Public Prosecutors Offices must take any judgment of the case being appropriate for prosecution or inappropriate for non-prosecution into account, and institute public prosecution if he/she considers it necessary to do so.
Table 3-2-1-1 shows the trends in the number of persons received and disposed by the Committees during the period from 1993 to 2002. The numbers of persons newly received and disposed were exceptionally high in 1993 because they included Diet members (40,305 persons) who were charged by a large number of citizens with violations of the Regulation of Money for Political Activities Law with respect to donations to them.
Table 3-2-1-1 Number of persons received and disposed by Committees for the Inquest of Prosecution (1993-2002)
In 2002, 2,113 persons were newly received for penal code offenses. By type of offense, most of them, or 438 persons, were received for professional negligence resulting in death or bodily injury, followed by 245 for forgery of various documents, 219 for fraud, 211 for abuse of authority, and 198 for bodily injury or bodily injury resulting in death. In contrast, 217 persons were newly received for special law offenses. Most of them, or 50 persons, were for violations of the Public Offices Election Law, followed by 21 for violations of the Labor Standards Law, and 14 for violations of the Road Traffic Law (Source: Data by Criminal Affairs Bureau, General Secretariat, Supreme Court).
Table 3-2-1-2 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.
Table 3-2-1-2 Subsequent measures for cases judged to be appropriate for prosecution or inappropriate for non-prosecution, by reason of initial disposition of non-prosecution (1993-2002)
(5) Application to commit a case to a court for trial
Where complainants or accusers who have an objection to a disposition of various types of abuse of authority, where public prosecution is not raised, request to commit a case to a district court for trial, and when there exists a reason for such request, district courts shall make a determination to commit the case to a competent district court for trial. Due to such determination, the public prosecution is deemed to be raised regarding the case. And the court will designate a person who maintains the public prosecution among the lawyers, and cause 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 from 1993 to 2002.
Table 3-2-1-3 Number of persons received and disposed for the application to commit a case to a court for trial (1993-2002)
(6) Formal trial
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, the court or the judges may order such defendants and 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 when the witness gives statement 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 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 such 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 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 case that there is a likelihood of occurrence of action to harm the person or property of the witness etc., or to frighten the witness etc., public prosecutors or attorneys at law may ask the opposing party to ensure that the name and the address of a witness etc. shall not be made known to the defendants or other persons concerned, and that the security of a witness etc. shall not be threatened in any other way.
Also, under the aforementioned Law for Partial Amendment to the Code of Criminal Procedure and the Law for the Inquest of Prosecution, the court shall give victims etc. the opportunity to state their opinions in the date of trial if they offer to express their feelings about damage and opinions on the cases.
The Law Concerning Measures Accompanying Criminal Proceedings to Protect Crime Victims etc. 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 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 shall have the same effect as a judicial compromise.
The number of cases in which the agreement reached between them was included in the protocol for a public trial based on this system was 6 in total for 2000, 55 in total for 2001, 60 in total for 2002, and 23 in total for the period from January to May in 2003 (Source: Data by Criminal Affairs Bureau, 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 without good reason 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.
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 courts etc., the government shall pay for the 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 hear proceedings on criminal cases which are held on fixed dates in open courts. Information is provided to victims through 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 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 in 1991 to 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 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 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 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 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 October 1, 2001, notification could be also given of the scheduled due time when the imprisoned persons would be released.
The notifications to victims and witness were given in a year from October, 2000 until September, 2001, as follows: 35,188 cases in total of the disposition of the case, 17,355 of the date fixed for the public trial, and 20,096 cases of the result of the criminal trials. The notifications were given from October 2001 until May 2002, as follows: 25,930 cases in total of the disposition of the case etc., 13,547 of the date fixed for the public trial etc. and 16,971 of the result of trials. And the notifications were given of the due time when the imprisoned persons would be released to 70 victims and witnesses etc. in total. For the period from June 2002 to May 2003, the notifications were given as follows: 35,436 cases in total of the disposition of the case, 17,411 of the date fixed for the public trial etc., and 24,922 of the result of trials. And the notifications were given of the due time when the imprisoned persons would be released to 188 victims and witnesses etc. in total (Source: Data by Criminal Affairs Bureau, Ministry of Justice).
In the police, the "Victim Liaison System" was introduced in July, 1996 to 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 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 and to 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 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 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, investigation reports on taking photographs and post-mortem examination reports, and they are deemed not to be substitutive, or few adverse effects are recognized if there may exist no substitutive nature, inspection or copying of the evidence can be possible of the cases including other than traffic accidents.
(10) System of Advisers to Victims
Since 1999, advisers to victims have been assigned at public prosecutors offices throughout Japan. These advisors 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 the network to link them with victim support organizations and groups.
(11) Spousal Violence Counseling and Support Center
The regulations on the Spousal Violence Counseling and Support Center stipulated under the Law for the Prevention of Spousal Violence and the Protection of Victims (Law No. 31 of 2001) became effective in April, 2002. Women's counseling centers or other suitable institutes established by prefectural governments started to play the role of support centers and provide information to utilize protection orders as regulated under the Law in response to the requests from victims.
(12) Juvenile cases
In order to increase consideration to victims, under the " Law for Partial Amendment to the Juvenile Law etc." (Law No. 142 of 2000), which came into force in April 2001, new procedures for juvenile cases were established concerning 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 the records related to the facts of delinquency of juveniles including those under 14 of age, where the victims request such inspection or copying, even during the hearing's being pending, provided that there is any 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 case, 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 case, 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.