As the novel coronavirus pandemic continues to unfold, delays in trial hearings and the prospect of packed court schedules later this year are raising concerns among law practitioners in the nation about whether justice will be fairly served during the COVID-19 era.
With the crisis showing no signs of slowing down, the outbreak has already exposed shortcomings in the justice system, prompting calls from legal experts for reforms to keep courts operational and effective during and after the pandemic. They worry aspects of the nation’s court system and its legal limitations may further hinder court proceedings, leading to hasty or incorrect rulings.
Effects on court proceedings
District and high courts suspended or postponed most of their scheduled court hearings for both criminal and civil cases from late March to June, particularly during the state of emergency that was first declared for some regions on April 7 and fully ended May 31. While postponements were not standardized throughout the country, most courts are now resuming or are set to resume proceedings by this fall.
Many cases scheduled to be heard in March are being rescheduled for the fall or later this year, meaning new lawsuits are ending up on the back burner.
Legal experts warn that delays in court proceedings may have negative impacts, especially on pending criminal cases.
Tomoyuki Mizuno, a professor at Hosei University Graduate School of Law and former criminal judge, said in a recent telephone interview that delays work against the accused, who are already in a disadvantaged position.
According to Mizuno, delays have caused some suspects released on bail to incur additional payments for prolonged bail while awaiting trial.
The country’s bar association has voiced concerns that delays with pending court cases may lead to improper detention, in violation of the defendant’s rights, especially for those who ultimately prove to be innocent.
“I’m worried that many defendants are now being held in custody for six months or so as a result of earlier postponement of court hearings,” said Akira Sugeno, an attorney who handles criminal cases with the Chiba-based Sirius Law Office.
Sugeno warned that further delays could cause an additional mental burden for all involved in cases, from defendants to victims, and may affect testimonies as witnesses may simply forget details over time.
Courts have been resuming proceedings with half-empty galleries, with the public spread apart. Those who do attend court hearings, including those who testify, are advised to wear protective masks. But lawyers worry that some preventive measures will hinder testimonies and thus affect court decisions.
“It’s obvious that we need to introduce measures to prevent transmission, like securing a safe distance between those sitting in or leaving seats,” Sugeno said. “But having witnesses and defendants testify with their masks on, which make their facial expressions unrecognizable, may make their testimonies sound less credible in the eyes of judges.”
Hosei University’s Mizuno said that such concerns have also been voiced by prosecutors relying on cross-examinations, for whom incongruence between verbal content and facial expression may help discredit the testimony of the witness or suspect and thus help prosecutors win the case. He also noted that lawyers may appear less convincing during their speeches directed to the judges.
As the pandemic prompted courts worldwide to turn to technology, Japanese courts — in a move unrelated to COVID-19 — in February began using web meetings to connect judges and lawyers to ease the necessary preparations for civil lawsuits.
In a bid to speed up proceedings, the initiative allows judges and lawyers on both sides of a case to share lawsuit materials online and hold talks via videoconferencing to confirm claims by both plaintiffs and defendants. But the novel coronavirus outbreak hindered progress.
The system was used in 348 cases in March, but fewer judges were able to use the teleconference system in April and May during the state of emergency. The system was used only around 167 times during the period.
“The process was halted as if someone left an engine idling before running it,” said Masao Honda, an attorney handling civil cases in Kanagawa Prefecture.
Given that the system is based on the premise that the judge is present in court, Honda said, “the remote system cannot be used if the judge isn’t present in court, and in fact it was unusable” after the virus outbreak.
Initially the system was due to be launched at district courts in seven cities, including Tokyo and Osaka, as well as the Intellectual Property High Court in Tokyo. It was set to be introduced in stages at other district courts in five more cities — Yokohama, Kobe, Saitama, Chiba and Kyoto — at a later date.
Currently, the sharing of information and other proceedings in cases involving plaintiffs and defendants who live far away from each other are conducted over the phone, if needed. But Honda stressed the existing system is obsolete, as it requires legal documents and evidence to be submitted by mail or fax ahead of time.
The remote system was slated for implementation at the nation’s 50 district courts and their 203 branch offices in 2021. In June, it was used 599 times for proceedings in civil lawsuits.
Domestic disputes handled by family courts are not yet covered by the initiative, meaning that victims of domestic violence seeking justice and closure won’t be able to benefit from the remote system to reduce contact with their abusers and will need to wait for their suits to resume.
Legal experts believe the existing court system will require further revisions to make courts functional in the post-pandemic era, and to prepare them for similar emergencies in the future.
Each court, as a public body, needs to adopt safety measures in line with the central government’s guidance on hygiene protocols and social distancing — including calls for people to avoid closed spaces, crowded places and close-contact.
Courtrooms are typically windowless, so leaving doors open between hearings is needed to help effectively circulate air.
For certain criminal cases, citizens can be selected at random to serve as lay judges and work alongside professional judges, but even moving proceedings or hearings to more spacious courtrooms does not address the challenges in maintaining safe distancing. In such cases, courts are currently using acrylic partitions to reduce the risk of viral transmission.
Sugeno has suggested applying a remote system to the proceedings in which lay judges are selected, and for courts to consider transferring lawsuits to different locations during natural disasters.
“Looking ahead, we need a fundamental revision of the system to make it work during a pandemic or other emergencies,” said Sugeno.
Due to legal limitations, even a temporary shift to digital proceedings is not currently an option for criminal cases, unlike in courts abroad.
A judge in a Singaporean court, for example, sentenced a drug dealer to death by hanging over Zoom in May. But sentencing via videoconference is unlikely in Japan, as the law requires the presence in court of people involved in the case.
Pointing to Article 82 of the Constitution, which mandates public trials and judgements, Mizuno said the current system was designed on the premise that trials take place in front of judges and the jury in a courtroom. He worries that people won’t be willing to serve as jury members as cases resume amid the pandemic.
Mizuno has suggested reducing the number of judges from three to one and jury members from six to three to meet safety requirements and prevent any problems if appointed volunteers decline to serve as lay judges. Such an option is allowed under the related law but, he noted, has yet to be applied.
“Japan needs more discussions on revising the law to allow online proceedings, with the possibility of another wave of infections within the next six months or a year — and risks of a more contagious disease outbreak in the future — in mind,” Mizuno said.