Japans Criminal Justice System - Essay Example

Japan's Criminal Justice System It is a well-known fact that security is highly assured inJapan. According to an estimate made by one official f the central administration f justice, four or five times fewer offenses are committed in Japan than in Western countries (in 1985, per 100,000 persons, there were 1,328 cases in Japan as against 6,909 in former West Germany, 6,885 in the United Kingdom, 6,500 in France, and 5,207 in the United States). The percentage f arrests is 64.2% as against 47.2% in Germany, 40.1% in France, 35.4% in England, and 20.9% in the United States. Out f 3,371,519 suspects in 1986, 73.4% were referred to trial courts, 17.5% to family courts, and 9.1% were exempted from prosecution by the measure called "suspension f prosecution" taken by public prosecutors. Before district courts (ordinary first instance), 92.4% f the 65,553 persons accused were tried within six months in 1985. Finally, in the same year, the percentage f total acquittals was but 0.14% out f 81,093 accused persons tried by courts f first instance. Thus, in 1985, out f 2,493,721 accused persons brought to trial on miscellaneous charges, the conviction rate was 99.88%, leaving only 117 substantive acquittals and 2,788 acquittals on various procedural grounds (inadmissibility, dismissal, etc.), while in 1989 the rate was even higher, rising to 99.91% (out f 1,265,998 accused persons, f whom 131 were declared not guilty and 1,063 were acquitted on procedural grounds) The numbers evidence "precision justice" or "justice ensured or virtually handed down by the public prosecutor," who is no longer simply a favored party, but "king" in the matters f criminal proceedings. Japanese criminal proceedings center on the investigation phase, a true inquisitorial procedure left to public prosecutor and police initiative. (Ames 10-19) The substance f criminal proceedings depends on the "satisfactory" outcome f their investigations. As the basic instrument f criminal investigation, the investigating police have considerable and wide-ranging powers f coercion and examination, while being subject to strict legal and judicial control Although in principle the police do not have the power to constrain suspects whom they are investigating, they can question them subject to the suspects' right to remain silent, and the statements thus taken may be used as evidence. Once arrested, the period f detention is three days under the authority f the police and then, with judicial authorization, a maximum f twenty days under prosecutor authority. Most f the time suspects are held during this period in a place f detention at the police station, known as a "substitute prison" (Daiyo-kangoku). Suspects in detention cannot refuse the summons to present themselves for questioning by an officer f the investigating police or by a public prosecutor. Often the questioning is repeated day and night for twenty-three days. Many police procedures are used without definite foundation in statutory law or specific agreement by those concerned, but "lawfulness" is generally admitted by case law. (Bayley 11-15) The public prosecutor, actively involved in the investigation "in case f need," can conduct it independently without the police. By making the most f his discretionary power as to the desirability f proceedings, the prosecutor nearly always anticipates the decision that would be rendered by the court. This is because the charges against the suspect must be sufficiently certain for actual conviction. (Johnson 300-5) Moreover, suspects consider it more serious and damaging to be accused before a court than to be questioned and even held by the police; they regard a verdict f acquittal to be an admission f the investigators' fault. Indeed, cases sometimes arise in which a person convicted at first instance, but acquitted on appeal or on judicial review, obtains compensation for "wrongful" prosecution. A further basic principle f criminal proceedings concerns the paramount importance assigned to a confession. A detailed account with an explanation f the motives for the act in question must be included, along with personal relations between the antagonists and underlying facts to eliminate any chance f contradiction by the defendants during the public hearing, where the deposition has the value f evidence. Police officers deploy all their skills to obtain every relevant fact from the suspects. Their main goal is to instill a kind f psychological attachment, through a series f concentrated contacts and questionings that may include the use f violent methods. (Kitamura 1-7) It is rare for judges to refuse to deliver arrest warrants ('rare f refusal: 0.45% in 1984); similarly, they are reluctant to order the release f suspects in cases where no confession is made or complete silence is observed (release rate: 27.3%). The amount f bail demanded is considerable (over 1,000,000 yen: 62.2%; under 500,000 yen: 14.3%). (Ohkawa 11-13) In the face f this investigator "perfectionism," backed by judges, it is not surprising that many commentators criticize the insufficient guarantee f due process and the risk f violations of' the rights and freedoms f suspects. What is a matter f particular concern is that lawyer's assistance is very limited or indeed almost precluded during the phase f investigations by the police and the prosecutor's office. Defense counsel is in fact officially assigned only after legal proceedings are instituted and not during the suspect's detention; even if he has already appointed his lawyer, the public prosecutor (so it is claimed by lawyers) normally will agree to two attorney visits only twice for every ten days f detention, with one further visit in the event f a ten-day extension, and only fifteen minutes are allowed each time. Another major problem lies in the practice f "justice based on written statement" (Choshosaiban). Such statements, taken during the investigation, are read during trial with the consent f the defendant, who otherwise would have difficulty gaining access to the prosecutor's evidence. The judge examines these statements in his office, noting facts and reaching conclusions. Without being held on a continual, sustained basis, trials become in fact a ritual for presenting evidence and verifying the contents f the file: the trial is not considered to be a suitable place for discovering the truth. The conviction rate f 99.9% suggests that judicial review does no more than verify investigative results. This situation is especially paradoxical because the system f prosecution was introduced under the present 1948 Code, with the very object f remedying the shortcomings f "justice handed down by the public prosecutor," a situation more characteristic before the reform. Actually, a series f appeals for judicial review have recently evidenced abuses and errors sometimes resulting from the humiliating methods employed by investigators and the small degree f control exercised by judges. Following a major change in judicial practice, and in contrast to the previous negative attitude toward appeals, a certain number f convicted persons were allowed to benefit were finally found innocent after suffering from judicial review; four for years under death sentences. Hence commentators are now consumed with discussions on the prevention f judicial errors, and the system for obtaining and using confessions. In the final analysis, this "precision justice" fueled by the perfectionistic zeal f investigators means that "courts in Japan are places where judges check that the defendant is truly guilty" and that "indeed courts f first instance are really no more than appeals courts giving a judgment on the decisions f the public prosecutor." For this reason, since the role f the judge is thus nearly eclipsed, a shared concern was expressed by an eminent specialist in criminal law, Mr. Hirano, who states that "the present law f criminal procedure seems rather abnormal and indeed pathological in comparison with what exists in Europe and the United States," concluding that "our criminal justice is quite hopeless." Then again, there is another twofold phenomenon, which is probably a symptom f a critical attitude f the same kind. Lawyers are no longer interested in criminal cases and young people no longer aspire to work in the public prosecutor's office. Among the graduates f the Legal Training Institute (national center which provides training for judges, public prosecutors, and lawyers), only 28 out f approximately 500 went into the public prosecutor's office in 1990. (Tamiya 99-100) Additionally, deep cultural roots perpetuate the naive outlook that Japanese citizens are "subjects f a police state." In everyday life, the Japanese are surrounded by a network f police stations which ensure the permanent policing f each city district (called hashutsujo or koban) and each village settlement (chazaisho), in addition to the offices f police commissioners. Each police officer assigned to these stations has a regular "beat" and occasionally goes from door-to-door for the purpose f taking census. This practice, known as junkai-renraku (communication patrol), is well-established, but not exactly founded in law, except perhaps in some ancient circular, and is not challenged, even though it is questionable whether it conforms with individual freedoms. In addition, the immemorial custom by which old village folk faithfully submitted to the authorities and-their gentle authoritarianism, as well as distrust toward "outsiders," is kept alive by lifelong education provided through television. Every day, programs are broadcast on a number f channels; policemen are depicted as heroes, whether contemporary, samourai, or cowboy. Also, the mass media, in the name f freedom f information and under the title f "A Leader f Society" (shakai no bokutaku), sometimes concern themselves excessively with "pre-preliminary" investigation into secret offenses, inciting the police to action. (Ames 10-19) Furthermore, the two last-mentioned phenomena occasionally combine into a sensational event when, for example, television covers a scene in which the police are about to arrest burglars holding hostages and, immediately after the arrest, interviews the police commissioner who takes on the air f a victorious general. The fear f evil prevails over the noble demands f freedom, on the side f both the public prosecutor's office and ordinary people. Finally, although somewhat overshadowed for criminal matters by the above-mentioned phenomena, judges attempt to act as proponents f legal theory in civil matters. Precision Justice in Civil Cases For some thirty years, the faculty f the Legal Training institute have been expressly proposing a new method for interpreting the Civil Code. These proposals have recently become the subject f a lively debate among commentators. Referred to as the "theory f presupposed ultimate facts" (Yoken-jijitsu-ron), it is based essentially on a procedural approach to the burden f persuasion. Civil judges should know which facts must be proved, by which party and what to do in case f failure to prove. Accordingly, advocates f this method propose to distinguish, from among the legal events prescribed as being the cause f a given effect, those facts that the plaintiff or defendant must rely on and establish. They call these facts Yoken jijitsu (presupposed ultimate facts). However, these two burdens f allegation and f prof are similar in their view, since in every case a party, without alleging and proving the presupposed ultimate facts that are required, does not obtain the legal effect that he seeks. Hence, in each text stipulated in the Civil Code, facts f positive presupposition relied on by the plaintiff and facts f negative presupposition raised in the defendant's rebuttal must be distinguished precisely, while reconsidering the eventualities designed to produce a legal effect. Judges are unhappy with scholarly treatises on civil law which neglect to draw this strict distinction. As a result, the judges give a systematic character to their analysis by adding this new element f interpretation to the traditional method in order to extract a code f "judicial norms" from the Civil Code. (Johnson 300-5) The point is, that, in connection with a particular fact referred to in provisions f the law, sometimes doubt inheres as to whether it should be interpreted literally as a positive presupposition generating the effect specified by the legislature. If not, judges should take into consideration the non-existence f the fact in question or the existence f a fact adverse to it, which should be considered as a negative presupposition preventing the effect concerned from being produced. Similarly, there are cases where it is necessary to read into the text a presupposition not expressly stipulated or where there is no provision made by law. In practice, judges assert that in the example f an action for delivery f an object that has been sold, the purchaser is not required to establish the non-existence f a mistake committed by the seller, since the mistake, if there is a mistake, must be proven by the latter for the very purpose f rejecting the claim. They, accordingly, assume as a judicial norm a text stating broadly that "the purchaser f an object may ask the seller to deliver it to him, unless it has already been delivered or the seller has made a mistake, etc." Likewise, according to the judges' reasoning, it is enough for a landlord in an ejectment action to allege and prove his ownership f the property in question and its occupation by the defendant. He does not have to prove that the defendant has no entitlement to occupy the property. The defendant must produce his lease as an adverse ultimate fact that may serve as a ground for dismissing the claim. Also, regarding contractual liability, even if, in accordance with the second sentence f Article 415 f the Civil Code, a creditor may sue for damages "when the debtor is no longer able to perform his obligation through a cause imputable to him," it follows from the intention f the legislator as well as from other interpretive elements that the "cause imputable to him" does not constitute a presupposed ultimate fact to be established by the creditor. The debtor must prove the existence f a contrary cause not imputable to him (i.e. Act f God). So, the new theory points out that terms f the texts do not always constitute an immediate guide for judges. As for extinctive prescription, Article 167, section 1, provides that "an obligation shall be extinguished if not exercised for ten years." This may suggest the creditor has not exercised his right for ten years. This would constitute a presupposed ultimate fact producing the extinctive prescription f the obligation. Consequently, it would be incumbent on the debtor to prove that the opposing party has not exercised his right for ten years. However, it is more reasonable to have the creditor establish a contrary fact, namely, exercise f his right impeding prescription as an adverse ultimate fact, since the fact f exercising a right, such as a judicial claim, constitutes a ground for interruption f prescription. Here, the text is not clear for judges. Lastly, regarding apparent agency, although Article 109 provides that "he who has stated to a third party that he has given an authority to another person, [that person] shall be required to perform within the limits f the authority the act concluded between the third party and that other person." Judges assert that even if in reality the latter was not vested with authority, he who invokes the apparent authority is not required to prove the non-existence f the authority despite its being described in legal literature as presupposed ultimate facts: the declaration f apparent authority is a sufficient ground for filing against him. Also, in a related hypothesis. Article 117 provides that "when he who has concluded a contract as an agent f another person [and that person] cannot prove that he has been so authorized nor obtain ratification thereof, he shall be required, at the choice f his opponent, to execute the contract or pay him damages." Commentators usually explain, repeating its content without regard to the distribution f the burdens f proof, that this article concerns the legal obligation f the unauthorized agent. It must be proved that the opposing party has concluded a contract with him, that he has claimed to act as an agent f a particular person, that such represented person has refused to ratify his act, that the opposing party has therefore opted for execution f the contract and, in some cases, that the plaintiff acted in good faith as to the non-existence f the authority. Should the opposing party really prove all f these elements No, it is enough if the opposing party can establish that he concluded the contract with that alleged agent, since it is a matter f principle that he who has concluded an act must execute it and the action instituted in this hypothesis by the plaintiff is in no way special. Hence. Article 117 is useless for the judge. In response to this new theory, it appears that, with the exception f a number f procedure specialists who actively participated in the technical discussions, commentators, while considering it important, have not yet adopted a definitive view regarding this proposed interpretation method. They currently leave it to judges with teaching responsibilities to create a kind f technical system f civil law for the profession. Nevertheless, two series f remarks can be made. First, the reasoning adopted by the judges in their analyses is basically quite functionalistic. The establishment f a code f judicial norms consists f an operation to recompose Civil Code provisions without making any substantive changes, highlighting the presupposed ultimate facts necessitated by distribution f the burden f prof between the parties. The judge would thereby easily understand the minimal facts necessary for the plaintiff's allegations to be recognized under substantive law, in the absence f which the claim would be automatically dismissed: he could dispense with interpreting the present text and determine how to resolve a case where prof is impossible. The "new technical code" expected will clearly guide him, and he will not feel that he is artificially interpreting in a manner contrary to the explicit terms f a contemporary positive enactment, as in the case f Article 415. In addition, it is unquestionably desirable for authors to account for the burden f prof in their civil law treatises. However, questions will be raised. First, whether, technically, the power f the rule f presupposed ultimate facts does not result in underestimating the original procedural role f the allegation burden and the evidentiary facts, and second, whether the effect f economy f reasoning will not prove illusory in case f diverging text interpretations and f new rights. This calls for a substantive discussion on the rule actually governing them, since the burden f proof' distribution supposes that substantive law is relatively stable. Also, doubt remains as to the advisability f establishing a code f judicial norms, and as to whether, in the event f a deadlock, those norms present similar disadvantages, to the system f legis actio: even the most standard provisions would require various lines f theoretical research and substantive questioning, according to civil law experts. The second set f remarks concerns relations among the three main protagonists f law: the legislator, the judge, and the commentator. The theory f presupposed ultimate facts criticizes present-day codification and legal science. In other words, it savors vindication if not a contestation against Professorenrecht (professor-made law). Because the present Civil Code contains ambiguous and imprecise provisions with regard to evidence, judges seek to recompose and unify them in a simple form f principles and exceptions: "if such facts exist, such a right shall be recognized, except when...." It is likely that, rather than scrupulously reflecting the distribution f the burden f prof in terminology, the drafters f the Code (whether Boissonade and his former students, or the three young professors recently returned from their studies abroad and commissioned to recast the draft f their predecessors) did not have enough time to account for the opinions f judges who only recently had taken up their duties. In codification conducted essentially along the lines f the French and German Codes, one f the drafters, Kenjiro Ume, has said that "hitherto the text f the Code was written purely in the interests f intelligibility." Although contemporary positivist judges do not directly criticize the Civil Code, academics whose main activity consists f research on theory and comparative law are often targeted, in most cases these academics are unaware f crucial practical considerations owing to the nature f their training and career, separate from that f other jurists. Now that judicial structure is well-established and the provisional, reign f the "borrowed plumes" (from Europeans) f the Professorenrecht has ended, one might see magistrates' confidence adumbrated in new ideas regarding interpretation f positive law. However, whether it relates to investigative perfectionism in criminal matters or to attachment f presupposed ultimate facts in civil matters, precision justice always concerns the precision f facts. It is essentially case facts that seem to occupy a large place in judicial thinking. These elements f "factualism" sometimes prevail over the major principles f rights and justice in their juridical evaluations. This is probably connected to the phenomena f "non-justice," which will now be considered. "NON-JUSTICE" "Non-justice" does not mean injustice, f course. In some spheres there is a form f withdrawal or abstention from justice: judges refrain from formally or substantively ruling on cases in order to allow settlement by other means, where normally a decision would be rendered at least from the European point f view f justice in the courts. The same phenomenon might exist in other legal systems, but it is particularly characteristic f Japanese law. In the matter f supposed exceptions, once a certain limit has been attained, that which was quantitative becomes qualitative. The question is: what is it that causes Japanese judges to give way Apparently, the answer must include political or administrative discretion in public matters, and custom in private matters. "Non-Justice" in Public Law With regard to control f the constitutional character f laws, reference is often made to the American distinction between "activism" and "passivism"; the latter term serves to highlight maximum self-effacement and deference to political decision-makers in contrast with the active interventionism suggested by the former term. Most constitutional law experts claim (with some criticism) that the Japanese Supreme Court is excessively and intransigently "passivist" (shokyoku-shugi); so much so that the term might well be seen as a synonym f "negativism," namely, a reluctance to state that a particular act is unconstitutional. (Nonaka 86-89) However, this is a common tendency in constitutional and administrative matters. Introduced in 1947, the Japanese system for constitutionality control is f the American type. "The Supreme Court is a court f final appeal having the power to decide whether or not any law, regulation, or administrative act is in conformity with the Constitution." Moreover, all courts have this power, which is exercised in the normal course f their handling f "legal disputes." Statistically, however, though the plea f unconstitutionality may be seen as a rhetorical device because f its frequent invocation by parties, it is seldom admitted in reality. Out f 54,376 judgments handed down in civil and administrative cases between 1950 and 1987 by the Supreme Court, only 286 examined this plea and only forty-seven f these pleas were found to be justified (forty-four f which concerned the same problem f election). Out f 119,279 judgments in criminal cases, 1,620 took up this plea and 256 admitted it. (Since 1974 there has been no judgment f unconstitutionality, after the record years f 1954 and 1955, with sixty-nine and 154 cases respectively.) It is clear that the "fifteen wise men" seek to abide by and maintain measures adopted by the legislature and government. This tendency is apparent in regard to issues both f procedure and substantive law. First, since control over constitutionality issues is exercised within the framework f civil, administrative, or criminal suits, "a specific legal dispute must be brought before the court," without which the court will not decide in abstract teens on a statute's constitutionality. This requirement f a specific point f law tends to be strictly interpreted. Especially in the sphere f administrative litigation, which is preeminently the form assumed by constitutional litigation, strict interpretation f admissibility conditions leaves little scope for challenge. This was true f the Naganuma case, in which an application for annulment f an act to abrogate a forest reserve classification in order to establish an army base was dismissed on the grounds that a replacement structure against flooding or drought had been installed. It follows that judicial review is carried out only for the settlement f the dispute in question. Without exercising any further jurisdiction over an issue f constitutionality, the judge does no more than rule on the basis f an interpretation f ordinary law, at least whenever possible (the so-called necessity principle f avoiding a judgment on constitutionality). Thus, in the Eniwa case, in which a peasant, without having been notified beforehand, cut a telephone wire strung over a drill ground being used for shooting practice by defence force soldiers, was charged with the offense f "destroying materials serving for the purposes f defence." The court, after considering at length the defense f unconstitutionality, acquitted on the simple and somewhat artificial ground that the telephone wire was not a material serving the purpose f defense. If a ruling f unconstitutionality seems unavoidable, the judge tends to limit its scope as much as possible, relying on methods such as restrictive interpretation f the law so that it remains constitutional; the unconstitutionality lying solely in its application. Finally, the last consequence f the "specific point f law" requirement, a judgment f unconstitutionality affects only the parties involved since the context is one f civil proceedings and "subjective litigation" (as will be seen). Works Cited Ames, W.L. (1981), Police and Community in Japan, University f California Press, p10-19 Bayley, David H.. (1976) Forces f Order: Police Behavior in Japan and the United States. By. Berkeley and Los Angeles: University f California Press, p11-15 Johnson, David T. (2002) The Japanese Way f Justice: Prosecuting Crime in Japan. Oxford: Oxford University Press,P300-5 Kitamura, Ichiro. (1987) Une Esquisse Psychanalytique de l'Homme Juridique au Japon., p1-7 Nonaka, Toshihiko, (1990) The Problems f Constitutional Litigation (in Japanese), HOGAKU-KYOSHITSU, No. 121, p86-89 Ohkawa, Masao. (1987) Overview f Criminal Justice in Dire Straits (in Japanese). 38 J. JAPAN B. ASS'N (in Japanese) 41, tbls., p11-13 Tamiya, Hiroshi, (1990) Problems f Criminal Justice (in Japanese). HOGAKU-KYOSHITSU, No. 121, p99-100. Read More