Retrial Bill Passes with Loopholes

The bill of revised Code of Criminal Procedure, which opens the way to make request of retrial easier, passed the Diet on July 17th. Although the lawmakers, including some with ruling Liberal Democratic Party (LDP), argued that dispute of public prosecutors should be completely ruled out, the law contains a loophole for prosecutors to reject retrial. Bureaucracy has a greater power than the parliament in this country.

The revision was initiated by Hakamada Case, in which a professional boxer was arrested with charge of murder in 1966, received death penalty in 1968, detained for 48 years and found innocent in a retrial in 2024. Although Hakamada requested a retrial and the court approved that, the public prosecutors blocked it with their dispute. It was found that they had been concealing some evidence that might prove Hakamada’s innocence.

 

That case accelerated discussion for revising current system of criminal procedure. Before submitting the bill for revision of Code of Criminal Procedure, the Ministry of Justice (MOJ) accumulated discussion with the LDP. Although many LDP lawmakers demanded the bill to prohibit dispute of public prosecutors, the MOJ refused to add the provision to abolish disputing system. The ministry was afraid of consecutive requests for retrial from defendants in criminal cases.

 

The bill submitted to the Diet basically prohibits the public prosecutors to dispute court decision of starting a retrial. However, the public prosecutors can dispute against retrial, only when they have “sufficient evidence.” Who decide whether they have sufficient evidence? It is not the court but the public prosecutors. This logic was presented in Diet discussion over the bill.

 

Another point is whether concealing important evidence by public prosecutors, as seen in Hakamada Case, will be eliminated under revised law. The law enables the court to order disclosure of necessary evidence, but it has some conditions. The evidence needs to be relevant to the reason of requesting a retrial and necessary for the court to decide retrial. The court has to consider negative impact of disclosing the evidence. Those conditions may be used as the reason not to disclose the evidence. The public prosecutors can dispute court decision to disclose the evidence.

 

Disclosed evidence cannot be used for any purpose except deciding a retrial. In the case of Hakamada, the lawyer’s disclosure of some evidence through news media generated public opinion that demanded retrial for Hakamada. Although the MOJ brought protection of privacy as the reason for prohibiting use of evidence for other purposes, news media and legal experts are strictly opposing that regulation.

 

It was possible for the LDP to turn down argument of MOJ that demanded loophole in the revised law, because the party has a majority in both chambers of the Diet with support of other parties. But they accepted MOJ’s draft of the revised bill, considering ordinary business to make laws with support of MOJ. The loophole showed weakness of the leading party to the ministry that controls criminal investigation including money scandal of politicians.

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