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The Increased Power of Committees for the Inquest of Prosecution:
The Implications of ‘Not Guilty’ judgments in Mandatory Indictment Cases

Motonari Imaseki
Professor, Faculty of Law, Waseda University

(1) Citizens’ Exercise of Their Power to Prosecute

Before the revision in 2004, Committees for the Inquest of Prosecution (hereafter, “inquest committees”) were purely regulatory bodies whose purpose was to keep public prosecutors in check by judging whether their decisions not to prosecute were appropriate or not and, if necessary, urging them to reconsider in favor of prosecution. However, with the institutionalization of mandatory indictment (which made the inquest committee’s decisions legally binding), the nature of inquest committees has changed dramatically, and they have, in effect, become powerful bodies with the authority to indict the suspect. So has this reform, enacted amidst a wave of judicial reforms for the “democratization of the judicial system,” proven successful?

Rulings have been handed down in five out of the eight cases of mandatory indictment that have been filed so far (as of March 2013). The defendants in the Rikuzankai case (the ruling of second instance became final and binding), the unlisted stock fraud case (pending appeal), and the Akashi pedestrian-bridge accident case (pending appeal) have all been found not guilty, the mayor charged in an assault case has been found guilty (pending appeal), and the charges against the defendants in the Senkaku boat collision case have been dismissed. In particular, the not-guilty judgments in the high-profile Rikuzankai and Akashi pedestrian bridge cases have discouraged those who used the system and provoked harsh criticism of the mandatory indictment system. Some take a cool view of the situation, arguing that a high frequency of acquittals is to be expected given that the cases were dropped by prosecutors in the first place. The system has come under criticism, however, due to the absence of an in-depth discussion about the legitimacy of indictment by citizens (inquest committees) themselves, the failure to clarify the criteria for indictment, and the failure to maintain an appropriate structure, procedure and set of measures for deciding to prosecute the suspect when the system was revised—in other words, for being too heavily influenced by the ambiguous slogan “democratization of the judicial system.”

(2) The Two-Faced Nature of Inquest Committees in the Mandatory Indictment System

Under the system of mandatory indictment, if prosecutors decide once again not to prosecute after the inquest committee votes that the case is “appropriate for prosecution,” a second vote by the inquest committee that the case shall be prosecuted (a prosecution decision) results in the automatic prosecution of the suspect by means of a designated attorney. Both the people affected and the effects of the inquest committee’s two votes are completely different. The first vote demands that the prosecutors reconsider their decision, but the second vote results in the serious measure of pressing charges against the suspect. The inquest committee has two faces in the mandatory indictment system; on the one hand, it acts as a regulatory body that keeps the power of prosecutors in check, while on the other, it emerges as an authority that can independently make the decision to prosecute the suspect. The conferral of the latter authority on inquest committees was an attempt to implement the “democratization of the judicial system.”

If the power of inquest committees is increased, a corresponding safeguard for the human rights of the suspect (a check on the power of the inquest committee) will be needed. It is true that the second vote is a rigorous process, requiring a supermajority vote with at least 8 of the 11 members in favor of indictment, the aid of an “inquest assistant” (attorney), and a hearing of the opinions of the public prosecutors. The question, however, is whether this is enough. Indeed, criticisms of the mandatory indictment system charge that the following points need to be taken into consideration: limitation of the application to the prosecution suspended, limits on the crimes for which the suspect can be prosecuted, clarification of the criteria for indictment, improvement of procedural guarantees (the guarantee that the defense will have the opportunity to present its arguments, an improvement in the transparency of the inquest committee), an increase in the number of inquest assistants, strengthening of the power of the designated attorney to conduct supplementary investigations, and the serious adverse effects indictment has on the suspect (e.g., the loss of one’s job, the end of one’s political career, the loss of one’s reputation or credibility, the breakdown of one’s personal life). All these points stem from the constitutional requirement of due process. Critics argue that the principle of due process has been neglected due to the “democratization” bias in the original design of the system and that the current system needs to be reviewed.

This two-faced nature is the source of the confusion surrounding the discussion about inquest committees. Proponents of mandatory indictment emphasize its democratic context as a strengthening of the check on the power of prosecutors, while critics question its power over the suspect and demand procedural fairness. Thus, the two sides miss each other’s points and end up talking at cross-purposes. The essential question is whether indictment by inquest committees can be recognized as a legitimate means for keeping prosecutors in check when the guarantee of due process for the suspect has been established as a prerequisite for criminal trials.

In the Akashi pedestrian bridge case, the first case that resulted in mandatory indictment, the inquest committee wrote in their resolution statement, “Rather than taking the same stance as public prosecutors as to whether the suspect is guilty or not guilty, we are taking a basic stance from the perspective of public sentiment, with a view to clarify the facts and where responsibility for the incident lies in a public trial and the hope of preventing such an incident from occurring again.” It is evident from the statement that the inquest committee has stepped outside the institutional framework that places limits on public prosecutors and is trying to exercise raw power over the suspect. Prosecutors only press charges when they are confident they can prove the suspect is guilty based on the evidence. This is due to the presumption of innocence of the suspect and the concern that an innocent person not be made to stand in a criminal trial. Unaware of their own power over the suspect and taken in by the theory of democratization, the inquest committee was able to easily overstep the bounds of criminal trials. This resulted in a retreat from the principle of the presumption of innocence, and one can even sense a tone in the statement that makes it sound as if the inquest committee is demanding that the suspect prove his innocence in court.

(3) What Should Citizens (Inquest Committees) Do in Criminal Trials?

A policy could be enacted that would completely entrust the power to decide to prosecute or not to prosecute to a designated attorney, when the inquest committee votes that a case is “appropriate for prosecution.” Such a policy would still open a crack in prosecutors’ monopolization of the power to prosecute and allow legal experts from outside the public prosecutor system to re-examine prosecutors’ decisions not to prosecute from a legal viewpoint, fulfilling the goal of keeping prosecutors in check. Thus, there is no need to give the power to prosecute to citizens themselves. All citizens (inquest committees) need to do is to decide whether the power to prosecute should be shifted from the prosecutors to the attorney. In this case, it would be fine for the inquest committee to base its decision on “public sentiment” as a means of democratic control over the power of public prosecutors. The public’s criticism of power carries importance. If an inquest committee’s vote that a case is “appropriate for prosecution” is given legal force through the peer review of professionals (public prosecutors) by other professionals (attorneys), concerns about indictment based on the “public sentiment” of non-professionals can be dispelled, prosecutors’ decisions not to prosecute will be reconsidered within the strict boundaries of legal rationality based on the requirement of due process, and we will be able to avoid the risk of arbitrary guidance from prosecutors based on falsified documents as was seen in the Rikuzankai case.

Indictment by the inquest committee itself is not the only way to give its decisions more weight. The mandatory indictment system has allowed the inquest committee to transcend its position as regulatory body for keeping prosecutors in check and transformed it into a force with power over the suspect, bringing about the excessive democratization of the judicial system. We must save criminal trials from the curse of the “democratization of the judicial system” unleashed by the Justice System Reform Council and bring the discussion back to its proper grounding in the human rights theory of the guarantee of due process.

Meanwhile, inquest committees should devote themselves to keeping prosecutors in check, actively use their authority to submit proposals and recommendations and keep the public aware of problems in the actual practice of prosecution, and fulfill its role as a catalyst for democratic discussion about criminal trials and reforms of the prosecution system. In this way, inquest committees can serve as an important impetus for improving criminal trials as well as the quality of democracy in Japan.

Motonari Imaseki
Professor, Faculty of Law, Waseda University

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Professor Imaseki was born in 1957. He graduated from Waseda University School of Law in 1979 and completed doctoral coursework at Waseda’s Graduate School of Law without obtaining a degree in 1984.

His publications include “Mandatory Indictment by Committees for the Inquest of Prosecution: ‘Citizens’ as ‘’Government Agents’” [“Kensatsu Shinsakai no Kyōsei Kiso: ‘Tōchi Shutai’ to shite no ‘Kokumin’”], Hōritsu Jihō, Vol. 83, No. 4 (2011); “What is ‘Citizen Participation’ in Criminal Trials?” [“Keiji Saiban he no ‘Kokumin Sanka’ to wa Nani ka”] in Association for Studies of Constitutional Theory, ed., Political Changes and Constitutional Theory [Seiji Hendō to Kenpō Riron] (Keibundo, 2011); “The ‘ Academic Freedom’ and the Constitutional Council” [“‘Daigaku no Jichi’ to Kenpōin”], Waseda Law Review, Vol. 87, No. 2 (2012); “The Introduction of an Ex-Post Review System (Question Prioritaire de Constitutionnalité) in French Constitutional Council” [“Furansu Kenpōin he no Jigo Shinsasei Dōnyū”], Waseda Law Review, Vol. 85, No. 3 (2010); and Lexique Des Termes Juridiques (Japanese Edition) [Furansu Hōritsu Yōgo Jiten] (3rd edition; translation co-supervised with Koichi Nakamura and Osamu Niikura; Sanseido, 2012).