MOJ Still Reluctant to Retrial

A working team in Legislative Council of Ministry of Justice (MOJ), an advisory body for Minister of Justice, submitted a draft for revision of retrial system. Although difficulty of starting retrial has been criticized as generating false accusations, the draft effectively preserves public prosecutors’ power to dispute decision of court for retrial. Lawyers are opposing the idea, arguing that would cause delay of procedure for retrial.

Even a defendant whose guiltiness was confirmed by the courts can request a retrial with some new evidences which have not been discussed. When the court approves rightness of the request submitted by the side of defendant, retrial starts. It has often been the case that new evidence disclosed by law enforcement organization becomes a clear evidence with which the court needed to sentence innocence.

 

The working team proposed a new rule that the court has to order the public prosecutors to disclose related evidence. However, the rule includes some conditions. The evidence should be limited to be related to the reason for requesting the retrial. It must also be considered necessity and negative impact of the disclosure. Those conditions invited concern of being used as a reason for the public prosecutors to reject disclosure of new evidence.

 

Japan Federation of Bar Associations argues that the disclosure would be limited significantly. The federation demands the court to be able to order disclosure of new evidence, when it finds necessity, even if the evidence seems to be unrelated to the request of retrial. The lawyers are skeptical that the prosecutors are reluctant to increase opportunities for defendants to request retrial and trying to reduce the chance by blocking it.

 

The discussion of reform in retrials was accelerated by false accusation on Iwao Hakamada, former prisoner on death row who was found innocent as a result of retrial in 2024. Although Hakamada was sentenced guilty for a murder in 1966, the court changed its decision in the retrials with new evidence that was insufficient to prove Hakamada’s involvement in the murder. As consequence of public prosecutor’s blocking the request of retrial, Hakamada had been detained for 47 years, most of his lifetime.

 

To avoid false accusation which causes serious violation of human rights, it is inevitable for the court to review former decisions, when relevant evidence is newly found. The prosecutors are skeptical about how the disclosed information would be properly used by the defendants. Based on current rule without mandate for disclosure of necessary evidence, the public prosecutors have often rejected to open the evidence.

 

“No person shall be denied the right of access to the courts,” says Article 32 of the Constitution of Japan. This is, in short, a collision between basic human rights, or freedom for accessing knowledge, and governmental power.

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