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Takayuki Shiibashi

Takayuki Shiibashi [Profile]

Abolition or Extension of the Statutes of Limitations for Crimes Resulting in Death

Takayuki Shiibashi
Doctor of Law and Professor, Faculty of Law, Chuo University and Chuo Law School
Area of Specialization: Criminal law and procedure

The System Providing Statutes of Limitations and their Rationale

The system of prescription of the right to prosecute the accused, hereinafter referred to as the statute of limitations, is a system where, in what is known as the lapse of the period of a statute of limitations, the state may not prosecute (and hence, may not punish) crimes where charges are not brought within a fixed period (also referred to as termination of prosecution authority, which varies according to the seriousness of the offense) after the completion of a crime. Rationale supporting a legal system that has statutes of limitations include: 1) the desire for retribution within victims and society lessens over a period of time (Substantive Law theory); 2) the passage of time causes evidence to deteriorate, making it difficult to carry out a proper trial as a result (Criminal Procedure theory); 3) the Competition theory based on 1) and 2), and 4) the notion that once a fixed period of time without punishment of the perpetrator(s) has elapsed, the situation that has arisen during this time should be respected (New Criminal Procedure theory). The majority of people have supported the competition theory of 3).

Effect of Changed Circumstances on the Rationale for Statutes of Limitations

For a long time, the system has been the subject of criticism and often featured in novels, on account of the fact that the statute of limitations dissuades the prosecution of suspects (and hence, the punishment of criminals) as time progresses. In recent years, acute and persistent pleas from victims and their families have grown and greatly influenced the notion of reviewing the statute of limitations; a view shared by a large number of people and related organizations. Victims of heinous crimes such as homicide do not hanker for punishment any less with the passage of time but rather, such feelings grow stronger as lapse of the period of statute of limitations (also known as completion of prescription) draws near. Moreover, as typically shown in the Setagaya family murders of December 30, 2000, there are quite a few cases where a considerable amount of evidence does not deteriorate over time and is left behind at the scene of the crime, including compelling evidence of a criminal's characteristics through DNA identification and on the like. Furthermore, doubts have been raised over the legitimacy of respecting the situation of criminals who have eluded capture. As such, the rationale for the statute of limitations has been significantly lost.

The Situation in Other Countries

Looking at other countries, we find that Germany, driven by the Nazi genocides, abolished its statute of limitations on premeditated murder in 1979. In France, although statutes of limitations for serious crimes such as murder are set at ten years, there is a system of tolling (suspending) these statutes during investigation by authorities. While this suspension ceases when investigations are curtailed, the period is reset to zero (i.e., up to ten years from that point) in light of fresh evidence and of a resumption in investigation, making it difficult for a lapse of the period of the statute of limitations (i.e., completion of prescription) to arise in many cases. Italy has no statute of limitations for crimes punishable by life imprisonment such as multiple homicide and rape murder, while there has never been a statute of limitations for premeditated murder in the U.K or the U.S. In recent years, the United States has also legislated to allow abolition of or extension to the statute of limitations for terrorist offenses, sex crimes, or child abuse.

Opinion Surveys

Ultimately, laws and legal systems are unable to function effectively without the support of the public, and it is interesting to note that opinion polls on the statute of limitations indicate acceptance of the legal system. According to a nationwide survey conducted over the telephone by the Mainichi Newspaper (July 12 and July 13, 2008), when asked whether the statute of limitations for murder cases should be kept or not, the number of people who answered that it should be abolished (77%) far and away exceeded the number who indicated that it should be maintained (15%). What's more, according to an opinion survey on basic legal systems which was conducted by the Cabinet Office (between November 26 and December 6, 2009), about 60 % of respondents who were aware of the statute of limitations answered that a period of 25 years for murder cases was either too short or that it was on the short side. Hence, it seems fair to conclude that a great many of the public think that the statute of limitations for homicides is too short and that the opinion surveys indicate clear support for a review of the system.

Review of the Statute of Limitations for Crimes Resulting in Death

In light of the situation presented thus far, the Ministry of Justice, in response to committee findings and a report from the Legislative Council, drafted bills to amend the Code of Criminal Procedure and the Penal Code, and after deliberations in the Diet, the bills were enacted and promulgated on April 27, 2010.

The revised laws abolish the statute of limitations for crimes of murder punishable by death such as homicide, murder-robbery, or rape in the course of robbery resulting in death. Moreover, in proportion to their severity, the revisions also doubled the limitation period (from 15 to 30 years) for other crimes resulting in death which are punishable by life imprisonment or other imprisonment. Although the revised laws maintain a legal system that provides a statute of limitations, there is special treatment of the statute of limitations for indictment by the prosecutor in the case of crimes resulting in death, and as a response to the changing situation affecting the rationale for the statutes of limitations, comparison with other countries and the results of opinion surveys, it is fair to say that the revisions display a certain amount of rationality.

Challenges Posed by these Legal Revisions

During the course of deliberations regarding the abolition and extension of the statute of limitations in the Legislative Council and in the Diet, it was argued that evidence can deteriorate with the passage of time, that the accused would be deprived of sufficient opportunity for defense, and that there might be an increased danger of false charges arising; criticisms that should be heard with humility. The abolition or extension of the statute of limitations for certain heinous and serious crimes doesn't alter the need for prompt investigation, indictment, and trial in order for appropriate criminal action and resolution of the case. Timely prosecution through criminal investigation at the initial stage and suitable collection of evidence is what is needed.
It is also worth noting that deterioration of evidence (decline of material evidence and of the memory of people giving testimony) applies not only to the defense but also to the prosecution. Moreover, the prosecution bears the strict legal burden of proof, and must establish the guilt of the defendant "beyond a reasonable doubt" and in the absence of this, the defendant is found innocent. Needless to say, indictments raised after a considerable period of time has elapsed, or based on old evidence, should be undertaken with extreme care; a request guided by the sense that the accused has a right to face prompt trial in a fair court.

Takayuki Shiibashi
Doctor of Law and Professor, Faculty of Law, Chuo University and Chuo Law School
Area of Specialization: Criminal law and procedure
Born in Tokyo in 1946, Takayuki Shiibashi graduated from the Faculty of Law at Chuo University in 1969 before completing his masters from Graduate School of Law at Hitotsubashi University in 1971. After serving as an associate professor at Kagoshima University and Chuo University, he became a professor at Chuo University in 1982 and also at Chuo Law School from 2004. He conducts research on victimology and juvenile law with a central focus on the Code of Criminal Procedure.
In addition to his time spent as Chuo University Vice-President and Chair of its Graduate School of Law committee, he has served society through his work as President of the Japanese Association of Victimology and Chair of The Association for the Study of Security Service. In the course of his work, he has served as a member of the former National Bar Examination Committee, the Provisional Legislative Council, the Special Committee for Schools of Law University Subcommittee of the Central Council for Education and the Supreme Court Advisory Committee on Criminal Rules. His written works include Theory for Defense of Criminal Cases and Investigation [Keiji Bengo / Sousa No Riron] (1993, Shinzansha Publisher Co., Ltd.), Theoretical Evolution of the Code of Criminal Procedure [Keiji Soshouhou No Rironteki Tenkai] (2010, Shinzansha Publisher Co., Ltd.) The Primary Code of Criminal Procedure [Primary Keijisoshouhou] (3rd Edition, 2011, Fuma Shobo).