Indelible stain of injustice

「横浜事件」の再審開始決定

Many of the defendants were convicted shortly after the end of the war under the Peace Preservation Law, a 1925 statute that prohibited anti-establishment activities. The court gave the green light for a retrial on grounds that the law effectively lost its validity Aug. 14, 1945, when Japan accepted the Potsdam Declaration to end the war. Prosecutors had contended that the law re mained effective until it was repealed by an Imperial rescript in October 1945.

This is the first time that a court of law has decided in favor of a retrial on legal grounds — namely, that relevant legislation was misapplied. The decision is based on the judgment that the defendants were convicted under a law that had become ineffective. Past retrials have been conducted mainly for reasons of misjudgment.

The series of arrests and indictments executed from 1942 to immediately before the war's end is regarded as the worst repression of freedom of speech in wartime Japan. Petitions have been filed four times since 1986 by the bereaved families of five of the defendants, including former magazine editors. All five had been convicted shortly after the war. The first and second petitions went to the Supreme Court but were rejected. A third was filed in 1989 and a fourth in 2002. According to defense lawyers, torture was used to extract false confessions.

The latest decision, which came in response to the third petition, is significant in practical terms. For example, the court waived a procedural retrial requirement that a copy of the original ruling be attached to the petition. The reason for that was the impossibility of obtaining a copy; records on the original ruling are not available. The reason infers that a petition is valid if there are other materials to support it.

That is a sensible approach that puts a premium on practicality, in consideration of special circumstances. What is evident here is a significant measure of flexibility, or "effective" judgment, as the decision puts it. Such realism — which is evident in the judgment to dismiss charges when the sentence involved has effectively lost its validity — can be expected to have a salutary effect on future retrial cases.

As things stand, there are hurdles to be cleared before a retrial can start. For example, the criminal procedure law requires the petitioner to present new and clear evidence to support the request. But there are signs of a willingness to deal more realistically with the requirements. A case in point is a Supreme Court interpretation that a retrial can begin without new evidence if there is other evidence strong enough to reverse a guilty sentence.

The demand for a retrial in the Yokohama Incident is supported by strong evidence: speech and thought control by special police during and before World War II. Three former police officers involved were found guilty of torture in 1949. There is strong suspicion that the original copy of the ruling and related records were concealed or destroyed.

The central fact is that injustice was done by a state agency during and immediately after the war ended. If the rationale for the ruling favoring a retrial is any indication, there seems to be little doubt that the charges against the defendants will be dismissed. Still, the chief concern of the defendants presumably was to prove that the whole case was fabricated — that they were completely innocent — and not to question whether the Peace Preservation Law remained valid after World War II ended.

The retrial decision, coming nearly 60 years after the incident, is certainly too late. If a retrial is possible because of the law's misapplication, how is it, one wonders, that a similar decision was not reached while the defendants were alive? The final surviving defendant died last month at the age of 86. In this sense, the coming retrial, even if it exonerates the defendants as expected, will leave a sense of emptiness.

The Japan Times Weekly
April 26, 2003
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      決定は、1945年8月14日の日本のポツダム宣言(終戦)受諾で1925年公布の治安維持法は失効したと認めた。検察当局は、1945年10月に治安維持法の廃止勅令が出されるまで同法は有効だったと主張していた。

      裁判所が、法令の適用の誤りを理由に再審開始決定をしたのはこれが初めてである。

      事件に関し、5元被告の遺族により4回の再審請求がされた。今回の決定は第3次再審請求に対して下されたものだ。

      再審開始には、まだ問題がある。刑事訴訟法では、再審請求をするためにはその根拠となる新しい、明白な証拠が必要とされる。しかし最高裁の解釈によれば、新証拠がなくても原判決を覆すことができるに十分な証拠があれば再審開始は可能である。

      「横浜事件」では特高による思想、言論統制が再審請求の根拠になる。実際、事件に関連して拷問を加えたとして3人の警察官が1949年に有罪判決を受けている。

      再審請求開始決定の根拠を考えれば、被告に対し無罪が言い渡されるのは確実だ。被告が求めていたのは、治安維持法が失効したかどうかの判断でなく、事件そのものがでっちあげであり、完全に無罪であったという認定であろう。

      再審開始決定までに事件後ほとんど60年かかっている。問題は、なぜ被告が生存中に決定がなされなかったのかということだ。最後の生存被告は先月86歳で死亡している。再審で予想通り被告に対し無罪判決が下されたとしても、虚しい感じが残るであろう。