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Judicial allergy to appeals

More than 1,800 criminal cases reached Japan’s Supreme Court on appeal in fiscal 2009. But 98.01 percent of them were thrown out without a hearing. The situation is not much different with civil cases. This trend has chipped away at the very foundation of the nation’s three-tier judiciary system, in which a ruling by a district court may be appealed to a high court and ultimately to the Supreme Court.

A veteran attorney has lamented: “Virtually all of the appeals filed with the Supreme Court are rejected in examinations conducted behind closed doors and less than two percent of the cases are sent to the 15 justices for review. I have experience with this. Only two months after acknowledging the receipt of my application for appeal, the top court sent me a notice of rejection. I was so surprised.

“In addition to judging the constitutionality of laws, the Supreme Court is supposed to be responsible for determining whether there was a serious misinterpretation of facts in lower court rulings. With the court’s doors so tightly closed, there is no way of saving innocent people from false charges.”

One example of the top court’s dereliction of duty is a case in which a traffic police officer was killed when his police motorcycle collided with a school bus that allegedly came out of a parking lot in Kochi Prefecture in March 2006. Although the bus driver, Haruhiko Kataoka, pleaded not guilty, saying the police motorcycle rammed into the bus that was standing still, he was sentenced to 16 months in prison by the Kochi District Court. The ruling was subsequently upheld by the Takamatsu High Court. The Supreme Court turned down his appeal for review, sending him the notice to that effect six months after the appeal was filed.

After the Supreme Court’s decision, however, Kataoka’s defense counsel discovered that an affidavit supposedly signed by one of the students on the bus had fingerprints from an unrelated person. In October 2010, after he served his sentence, Kataoka filed a request for retrial with the district court. That case is still pending.

In another case, Toshikazu Sugaya was arrested in 1991 on charges of abducting and murdering a 4-year-old girl the previous year in Ashikaga, Tochigi Prefecture, and was sentenced to life imprisonment. The Supreme Court finalized the sentence in 2000.

After the discovery of new evidence, the Tokyo High Court decided that Sugaya should be given a retrial. In the retrial, he was acquitted in March 2010 by the Utsunomiya District Court. Shimotsuke Shimbun, a newspaper in the prefecture, reported one of the original prosecutors as saying the Supreme Court acted properly when it rejected Sugaya’s original appeal.

So, why is it that the highest court refuses to hear almost all appealed cases?

One answer is found in the fact that when an appeal is filed, it is reviewed by a group of people known as “Supreme Court judicial research officials.” In order to qualify for this position, one must have had at least 10 years of experience as a judge. Moreover, reaching that status lifts one’s prospects for being named a Supreme Court justice.

There are about 35 of these officials and they decide whether an appeal should be heard by the justices or rejected outright. They are very conservative and strictly adhere to precedent. That’s why they throw out a large majority of cases without bringing them to the attention of the justices.

One former Supreme Court justice has confided that, while in office, he usually did not object to conclusions reached by judicial research officials, adding that it was very stressful to argue with them. His comment seems to indicate that the justices do whatever is recommended by research officials.

When the constitutionality of a law is the issue, these officials tend to send the case to a petit bench instead of to the grand bench at which all 15 justices of the Supreme Court preside.

Muneo Suzuki, who lost his seat in the Lower House after the Supreme Court turned down his appeal in a bribery case, said, “All that the Supreme Court does is let judicial research officials decide whether an appeal should be heard or not.”

As if to substantiate this claim, the court’s notice that it is rejecting an appeal does not give reasons. Nor does it carry the names of the research officials responsible for the decision.

An insider points to the cozy relationship that has been built between the court and the judiciary press club, the membership in which is limited only to reporters of major Japanese media.

There is a secret arrangement between the two, the insider says, under which the court informs members of the press club of its decision to turn down an appeal before an official notice of rejection reaches the applicant by mail. There is the view that in exchange for giving club members the information in advance, the Supreme Court co-opts reporters into refraining from asking how and why the court has decided not to hear the case.

Every citizen supposedly has the right to a fair trial under the three-tier judiciary system. But that right is being infringed by the very fact that virtually no appealed case reaches the justices of the highest court for three reasons: (1) the Supreme Court’s decision to limit the number of criminal and civil cases it hears, (2) the presence of a handful of judicial research officials who reject almost all appeals, and (3) cozy relations between mass media and the Supreme Court.

The extremely high rejection rate for appeals — 98.01 percent — is unheard of in any other country. This has given rise to questions about whether research officials of the top court actually check and review appeal documents in a fair and thoroughgoing manner.

It is no exaggeration to say that the Supreme Court, the supposed guardian of the Constitution, is only trying to protect its interests and not paying attention to the interests of citizens.

This is an abridged translation of an article from the February issue of Sentaku, a monthly magazine covering Japanese political, social and economic issues.