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By May 2009, Japan will introduce a lay-judge system in which randomly chosen citizens will sit with professional judges to decide guilt or innocence in criminal trials involving charges such as murder, rape and arson, and then hand down sentences if the accused are found guilty. The aim is to insert the common-sense perspective of ordinary citizens into criminal procedures.

Now the government is considering adding a system in which crime victims and their families could seek compensation from offenders without going to the trouble of filing a civil lawsuit. Under this new system, the same judges who have handled a criminal case could decide how much the convicted defendants should pay.

The Justice Ministry has asked its Legislative Council to discuss the matter and submit a bill to revise the Criminal Procedure Code in the regular Diet session next year. The proposed new system, along with the lay-judge system, represents drastic procedural changes. Heated public discussions are expected with regard to the shape of the ministry’s proposal.

The ministry’s move is based on the basic plan to assist crime victims and their families, which the Cabinet adopted in December 2005. The proposal is aimed at quickly making good on losses suffered by crime victims or their families and lessening the burden they must endure when seeking compensation from the accused. At present, if crime victims or their families want compensation, they must gather evidence themselves and file a civil lawsuit against the accused. Because this process is time-consuming and costly, it is feared that many crime victims and their families don’t bother with the process to begin with or fail to follow it through.

Under the proposed system, crime victims and their families could ask the same court handling the criminal case to render a decision on requests for compensation. Evidence presented by the prosecution and conclusions in the criminal trial would be used in determining the amount of compensation if the accused were found guilty. Oral proceedings, however, would not be held to determine the amount of compensation; the judge would make the decision on compensation independently.

Neither the accused nor the crime victims or families would be allowed to appeal the decision on compensation to a higher court. But they could file a civil lawsuit with another court if they were not satisfied with the judge’s decision.

The new system would apply to such crimes as murder, burglary, arson, kidnappings and violations of the children’s welfare law, as well as violations of the law to prohibit child prostitution and child pornography. Fraud and embezzlement cases would be excluded, although associations of crime victims are calling for their inclusion. More discussion on this score is expected between victims’ groups and the ministry.

The proposed system is nothing new to Japan. Something like it was introduced in 1880, but it was abolished in 1948 when the nation switched to the current Criminal Procedure Code. Recently, associations of crime victims have started calling for its re-introduction as a means of quickly recouping at least some of the losses due to crime.

The system is not without problems. The burden on judges would be heavy because they would have to carry out two different procedures — first to determine whether the accused committed the crimes and then to determine the amount of compensation. The complexity of the old system was the main reason it was abolished.

Another difficulty is that the new system would encourage crime victims and their families to think and act under the assumption that the accused is guilty even before the court hands down a ruling in the criminal trial. This might run counter to the principle of presumed innocence. The new system might also weaken the chances of victims receiving compensation in a civil lawsuit if the accused had been acquitted in a criminal trial.

Apart from the new compensation system, the ministry is also considering whether to introduce a system in which crime victims or their families directly question the accused during criminal trial hearings. While this would give them the opportunity to ask the accused for an apology, or to find out for themselves why the accused committed the crime or what they were thinking, it could increase the psychological burden on the accused and thus affect their ability to defend themselves.

Full and careful public debates are called for so that anticipated problems can be resolved. The new system must not only be satisfactory to crime victims and their families but also reasonable from a legal point of view.

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