Behind the Scenes / Proving negligence in TEPCO case daunting


On July 31, the Tokyo No. 5 Committee for the Inquest of Prosecution announced its decision that former Tokyo Electric Power Co. Chairman Tsunehisa Katsumata, 75, and two other former company executives “should be indicted” in connection with the Fukushima No. 1 nuclear power plant disaster.
In this case the “will of the people” has spoken to counter the prosecutor’s decision not to indict, but proving culpable negligence in an accident associated with a natural disaster will be difficult. The prosecution’s designated lawyer is expected to face an uphill battle to convict the three men.
Concrete recognition
“The decision clearly states that [TEPCO] should’ve been able to foresee the onslaught of the tsunami,” said Hiroyuki Kawai, lawyer for the Complainants for the Criminal Prosecution of the Fukushima Nuclear Disaster, at a press conference held in Tokyo following the decision to indict. “The prospects for the trial are bright.”
The inquest committee and the prosecution, however, are far apart over whether the three individuals accused could “foresee” the likelihood of a massive tsunami and the ensuing disaster.
In 2008, TEPCO published the results of preliminary calculations that predicted a maximum credible tsunami of 15.7 meters based on a long-term assessment by the government’s Headquarters for Earthquake Research Promotion.
The Tokyo District Public Prosecutors Office concluded that establishing “foreseeability” meant more concrete evidence was needed beyond a vague foreboding of danger or anxiety, deemed that TEPCO’s preliminary tsunami reports couldn’t be regarded as having the scholarly persuasiveness necessary and denied foreseeability on the part of the company’s former officers and others.
The inquest committee, made up of 11 members of the public, responded that “it is sufficient that there must be foreseeability given the fact that a tsunami occurred and some sort of response was required.”
The committee stressed that the three individuals accused had a duty to exercise a high degree of care to prevent accidents since they all held positions of responsibility, and that the maximum credible tsunami report “absolutely could not be ignored.”
‘A certain extent’
Nevertheless, a big hurdle must be cleared to prove criminal responsibility for negligence when accidents occur.
“Jurists and the general public look at foreseeability and the duty to exercise care differently,” one veteran judge noted. “Proving foreseeability could be difficult to prove on the basis of preliminary tsunami calculations.”
In the JR Fukuchiyama Line derailment accident in Amagasaki, Hyogo Prefecture, three successive presidents of West Japan Railway Co. were subjected to mandatory indictment on a charge of corporate manslaughter.
The inquest committee for the case, which is currently under appeal, said, “Even in the most basic civic sense, stringent safety measures should obviously be taken as quickly as possible.”
Yet at the trial and the first appeal, the court ruled the three were not guilty as the three successive presidents could not have foreseen the accident.
The Fukushima nuclear disaster was caused by a natural phenomenon that would have been difficult to predict, making the charge even more of a challenge to prove.
“The purpose of criminal law is to pursue the responsibility of individuals,” said Tokai University Prof. Yoshihiko Ikeda, who specializes in criminal-negligence theory. “In terms of large-scale accidents related to disasters, senior management can be held responsible for negligence only to a certain extent.”
Choice of words
Now that a decision to indict has been made, the Tokyo District Court chose Friday three designated lawyers for the prosecution who will carry out supplementary investigations. The three accused might be subjected to mandatory indictment by the end of the year at the earliest.
All eyes are on what TEPCO’s former executives will say in court regarding the unprecedented accident.
Lawyer Motoharu Furukawa, a former prosecutor and author of books like “Fukushima gempatsu, sabakarenai de ii no ka” (Is it right to not take the Fukushima nuclear power plant to court?), published by Asahi Shimbun Publications Inc., says: “It’s of great importance that this be delved into publicly in court. It may even lead to a rethinking of nuclear power safety policy.”
Why did a major disaster that led to reactor meltdowns take place? Was there no way the accident could have been prevented?
Aside from the question of criminal responsibility, Katsumata and his associates need to present the full truth in court.
Doubts over system
The mandatory-indictment system was instituted in May 2009 so the “will of the people” would be reflected in judgments over whether or not to indict, judgments that hitherto had been the sole preserve of prosecutors.
While there is praise for the fact that, with this system in mind, prosecutors have become more cautious in deciding not to indict, a string of cases that used mandatory indictment have nevertheless ended in acquittals, exposing certain problems in the system.
First of all, the mandatory indictment system provides no opportunity for those under inquest to present their side of the story.
The Law for the Inquest of Prosecution makes it mandatory for a prosecutor to present the case prior to any decision to indict, but the accused forced into a public trial through a mandatory indictment has no opportunity to contest the charges beforehand.
“Would it not be a good idea to consider hearing the side of those under indictment, even if just to maintain the fairness of the inquest?” said Yasuyuki Takai, a lawyer who was involved in designing the system.
Then there’s the fact that the role of “inquest assistant,” which gives legal advice to the inquest committee, is limited to a single individual. A lawyer is appointed as inquest assistant, who responds to queries from the committee members.
Yukio Yamashita, a lawyer who has experience as an inquest assistant, pointed out that for a single individual “explaining legal arguments to the general public is difficult.”
“For a truly adequate inquest multiple assistants would be necessary,” Yamashita said.
Another problematic point is how the designated lawyer bears an excessive burden.
Proving guilt in a case where the prosecution has chosen not to indict is difficult — the maximum compensation paid to a designated lawyer for a single trial or appeal is ¥1.2 million.
The Japan Federation of Bar Associations is said to be planning to submit an opinion calling for improvements to the mandatory-indictment system this year to the Supreme Court and the Justice Ministry.
The system must be revised if it is to live up to its original goal, it seems.
Source: Yomiuri
http://the-japan-news.com/news/article/0002338557

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