The Role of the Public Prosecutor with Treatment of Suspects Involving Suspended Prosecution Disposition in Accordance with the Crime Investigation Policy of Police in Japan
| Date | 01 December 2011 |
| Author | Shigeru Hishida,Hiroshi Kinoshita,Takehiko Yamamura |
| DOI | 10.1350/ijps.2011.13.4.230 |
| Published date | 01 December 2011 |
| Subject Matter | Article |
International Journal of Police Science & Management Volume 13 Number 4
The role of the public prosecutor with
treatment of suspects involving
suspended prosecution disposition in
accordance with the crime investigation
policy of police in Japan
Takehiko Yamamura‡, Hiroshi Kinoshita† and Shigeru Hishida§
‡(Corresponding author) Department of Legal Medicine, Hyogo College of Medicine,
1-1, Mukogawa, Nishinomiya, Hyogo, 663-8501, Japan. Tel: +81(0) 798 45 6578;
Fax: +81(0) 798 49 3279; email: tycrime@hyo-med.ac.jp
†Department of Forensic Medicine, Faculty of Medicine, Kagawa University, 1750-1,
Ikenobe, Miki, Kita, Kagawa, 761-0793, Japan
§Department of Legal Medicine, Hyogo College of Medicine, 1-1, Mukogawa, Nishinomiya,
Hyogo, 663-8501, Japan.
Submitted 10 January 2011; revision submitted 29 March 2011;
accepted 3 May 2011
Keywords: public prosecutors, monopolised prosecution, discretionary
prosecution, suspended prosecution, crime investigation
Takehiko Yamamura lectures on criminality in
legal medicine and forensic toxicology and has
the Department of Legal Medicine at Hyogo
published numerous articles and books on legal
College of Medicine. He is a former admin-
medicine and criminology. He is an active mem-
istrative director for research at the Forensic
ber of the Japanese Society of Legal Medicine
Science Laboratory, Detective Division, Hyogo
and the Japanese Medical Society of Alcohol
Prefecture Police Headquarters. He is one of the
and Drug Studies. He is also an active member
leading specialists on forensic psychophysiology
of the Japanese Association of Criminology.
including polygraph examination. He has pub-
Shigeru Hishida is one of the foremost author-
lished a number of papers and books on crime
ities in Japan on legal medicine. He was a pro-
investigation and has provided expert testimony
fessor in the Department of Legal Medicine at
for criminal justice in a wide variety of criminal
Hyogo College of Medicine for over 27 years. He
cases. He is an active member of the Japanese
is an honorary member of the Japanese Society
Association of Criminology and the Japanese
of Legal Medicine and the Japanese Medical
Society of Legal Medicine.
Hiroshi Kinoshita is a professor in the Depart-
Society of Alcohol and Drug Studies. He is now
ment of Legal Medicine in the Faculty of Medi-
serving as a special consultant to the Supreme
cine at Kagawa University. He is considered to
Court on legal medicine issues and is a director
be one of the leading medical examiners on legal
of the Society for Clinical Legal Medicine for Law
International Journal of Police
medicine and is a specialist on judicial autopsy,
Enforcement Activities. He has published num-
Science and Management,
Vol. 13 No. 4, 2011, pp. 348–363.
and as such provides expert testimony for crim-
erous academic articles and books on legal
DOI: 10.1350/ijps.2011.13.4.230
inal justice. He has done extensive research on
medicine and criminology.
Page 348
Yamamura, Kinoshita and Hishida
ABSTRACT
the PPOL, except for decisions by the PPs’
This study aims to assess the effectiveness of the
Qualification Examination Committee.
prosecution system granted only to public pro-
Also, the authority of the Ministry of Justice
secutors (PPs), in regard to prosecution proceed-
is restricted to the control and supervision
ings in accordance with the crime investigation
of PPs. Since 1947, a PP has been delegated
policy of police in Japan. Using data generated by
different types of authority for the achieve-
the Ministry of Justice (MoJ) and the National
ment of social justice as a representative of
Police Agency (NPA) in Japan during the last
the public interest.
half century, the trends of numbers of suspects
Japan has adopted the principle of pro-
referred and the rate of disposition, prosecution,
secution under state control. Prosecution
summary trial procedure, suspended prosecution
by individuals is not allowed, the sole
(details of which are described in the text), were
exception being in the case of a ‘quasi-
calculated by type of offence including non-traffic
prosecution procedure’ which ensures that
penal code offences (NTPC), negligence in the
complainants, victims and others have the
pursuit of social activities on the occasion of traffic
right to request reviews from the Commit-
accidents (NPSATA), special law offences
tee for the Inquest of Prosecution, and to
(SLO) excluding violations of road traffic related
file applications for committing a case for
laws (VRTRL) and VRTRL. The results of the
trial to the jurisdiction of district courts.
study indicated that there are three major issues
This procedure has been mostly established
about prosecution policies and practices by the
for individuals’ relief against a decision of
PPs, namely: crime investigation activities;
disposition of non-prosecution by PPs,
monopolising discretionary decisions with pro-
since they may misjudge a case and make a
secution and suspended prosecution; and disposi-
decision of non-prosecution against a sus-
tion of traffic related crimes. Practical implications
pect who should be prosecuted. Under the
of the present results are discussed in the context
Amendment of Act on Committee for
of crime investigation policy by police.
Inquest of Prosecution 2009, two protests
to the Committee create a binding obliga-
tion to prosecute and the suspect must be
INTRODUCTION
prosecuted, even by a private attorney if the
The Japanese prosecution system was
PPs do not respond (Research and Training
inaugurated in 1872. Attached to the court,
Institute of Ministry of Justice [RTIMoJ],
its function had been retained for more than
2009).
70 years, despite two attempts to establish
The authority to prosecute is exclusively
an independent public prosecutor’s office
granted by the PPs whose organisations, in
(PPO) in 1928 and 1938. In 1947, after the
the handling of their duty, are linked closely
Second World War, the newly established
to each other in a hierarchical relationship
PPO gained independent status to carry out
with the Supreme, High, District and Local
punishment of crimes, institute prosecu-
Offices corresponding to each court. And
tions and pursue actual truth, in line with
one of the most important functions of the
Japanese criminal justice as laid down in the
PPs is given by the authority to decide to
Public Prosecutors Office Law (PPOL)
prosecute an individual criminal suspect in
brought into force in 1947 and the Crim-
court, after completing their examination
inal Procedure Law (CPL) amended in 1948
and/or investigation, although their author-
(Gohara, 2009). The independence of the
ity to investigate crime has triggered a pro-
PPO, so far as individual public prosecutors
longed struggle between the PPO and
(PPs) are concerned, is legally protected by
police since the reform of prosecution in
guaranteeing their status under Article 25 of
the post-war era (Oono, 1992), and their
Page 349
Role of Japan’s public prosecutors in the treatment of suspects
stance is somewhat different from that of
Japan and has touched off international
prosecutors in other countries. All decisions
debate. The suspect is dealt with by the PPs
by the individual PPs must be managed
in accordance with the principle of discre-
through consultation with and approval by
tionary prosecution, while most Western
their supervisors. There is no room for
countries adopt the principle of statutory
insistence in their own opinion. This is the
prosecution. This procedure was introduced
source of the principle of prosecution uni-
in Japan in 1885 as a type of disposition for
fication, rooted in Articles 7, 8, 9 and 12 of
trivial offences to save on imprisonment
the PPOL. Thus the independence of the
costs and was formally established as a legal
PPO does not necessarily mean the inde-
remedy (RTIMoJ, 1977) in 1922. It is con-
pendence of individual PPs who are
sidered to have the positive effects of avoid-
deemed to be allowed to independently
ing the nuisance of short-term penalties and
exercise authority (Kubo, 1989; Matsu-
of promoting the rehabilitation of criminals
moto, 1981) under Article 6 of the PPOL.
as part of Japan’s criminal policy.
The final disposition of suspects by indi-
Also, it is necessary to understand that
vidual PPs is roughly divided into prosecu-
the PPs have been granted special privileges
tion and non-prosecution. The process is
to maintain the security of society and/or
further subdivided into prosecution involv-
regional stability in Japan. Their authority
ing summary and formal trial procedure
to prosecute ranges from the principle of
and non-prosecution involving suspension
sole control of discretional prosecution to
of prosecution and other non-prosecution
the right to appeal the court ruling. Once
cases including referrals to family courts,
they consent to deal with a suspect by
transfer among PPOs and cancellation of
prosecution for indictment, a request for a
prosecution. Reasons for dispositions of
summary trial procedure and for a speedy
non-prosecution are: insufficient conditions
trial, they are held accountable for provid-
for prosecution; the case not being con-
ing proof of the suspect’s guilt. The PPOs
sidered an offence; no suspicion proved of
have the powers and functions to appeal to
an offence; and suspension of prosecution.
the court above (the High and Supreme
The PPs must grant a suspect suspension of
Court), mainly against not-guilty sentenc-
...
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