旧館ブログ当時からの読者の皆さんは、私がこれまでたびたび捜査機関による捜査情報リーク問題について批判的なエントリを書いていたのをご存知だと思います。
今回の違法献金虚偽記載事件においても検察によるリークの問題が議論されています。
まず最初に、検察は捜査情報をリークしているのか？ という問題がありますが、報道機関が報道している情報の全てとは言わないまでもある程度は検察側からの情報が入っていることは間違いないだろうと推測しています。
そうなりますと検察庁内部の人間による守秘義務違反の問題も生じ得るのですが、このエントリの趣旨は守秘義務違反の犯人探しではありません。
もっと開き直ったエントリです。
検察・警察を含めて捜査機関により捜査関係情報がマスコミに流されることを完全に禁止したらどうなるだろうかという問題です。
結論的には、国民は事件に関する情報をほとんど得ることができなくなりそうです。
事件のニュースソースは捜査機関だけではありません。
被害者がいます。
しかし、警察などが情報を提供しないと、いきおいマスコミは被害者から詳細な情報を取ろうとしますから、被害者に対する取材攻勢が度を超してしまうおそれがあります。
また、特定の被害者のいない事件においては、当然ながら被害者はニュースソースになりません。
目撃者がある事件もあります。
しかし、目撃者に対してマスコミ関係者の拙劣な取材攻勢がありますと、公判における真相解明に支障が生じる可能性があります。
これは被害者に対する取材攻勢についても同様に問題になります。
また、目撃者の情報というのは通常限定的で曖昧です。
被疑者も当然ニュースソースですが、被疑者が真相を語る可能性は前二者に比較してかなり低いですし、逮捕・勾留されてしまえばマスコミとしては接触の機会も失います。
いわゆる事件関係者というのもありますが、関係の程度や濃さはいろいろですし、話の信憑性の確認も容易ではないでしょう。
弁護人というのもニュースソースの一つだと思いますが、弁護人の持っている情報はほとんど被疑者の話に依存しますし、弁護人自身が守秘義務を負っています。
結局、事実確認のプロであり強制捜査権も持つ捜査機関が持っている情報が質量ともに最大の情報であることは否定できませんから、マスコミの情報入手が捜査機関に大きく依存することはやむを得ないところです。
国民が事件の内容なんか知りたくもないというのであれば、「捜査機関は沈黙せよ」というのもありだと思いますが、事件に関する情報を国民が知りたいというのであれば、捜査機関に完全な沈黙を求めることはできないことになります。
国民の多数はどのように考えているのでしょうか？
もちろん事件に関する情報は必要だと思いますが、今回のような政局を左右するようなケースでは、箝口令を敷いても良かったのではないでしょうか。そのほうが検察にとっても都合がいいと思うのですが。
いずれにせよ、「関係者によると」などというマスコミを通して与えられる情報は、情報操作されている気がしてしまい、あまりありがたくはありませんが。。。
たびたび失礼します。
専門家でない視点からすると、小沢氏が既に行ったように、検察が「できうる範囲で答える」記者会見をすればよい、に尽きると思いますが、いかがでしょうか。少なくとも、今回の検察の捜査目的の趣旨だけでも、国民に広く検察の公式な言葉として伝えるのは、悪いことだとは思いません。どこの誰だかわからない「関係者」のコメントがあたかも検察関係者の言葉であるかのようにマスコミを介して伝わるのは、趣旨一貫していない内容に国民が混乱するだけでなく、検察の本来の意図が国民に誤解される可能性すらあり、国民、検察の双方にとって害しかもたらさないように思われます。
元検察に在籍していた視点から、この方針に問題があれば(例えば、情報漏洩からくる証拠隠滅につながるなど)御指摘していただければ幸いです。
それは検察の問題ではなく「民度」の問題ですね。
検察の本来の意図と言うのは必要なのでしょうか
お返事ありがとうございます。
>それは検察の問題ではなく「民度」の問題ですね。
>検察の本来の意図と言うのは必要なのでしょうか
それはそうなんですが、「踊らされている」のを坐視していいのか、と僕は思うのです。例えば、疑似科学に非科学者がはまるのは、科学者からすれば「どうでもよいこと。民度の問題。関係ない」と片付けることができますけど、それが正しいとは僕には思えません。それと同様どころか、擬似科学以上の影響がある今回のような捜査を、単純に踊らされている国民の「民度の問題」と片付けるのに、私は同意できません。科学者は別に国民によって権力を付与されているわけでもなく、自由業なわけですから、説明責任もなにもないわけです。しかし、検察は違います。検察の権力の源は国民の信託ですね?ならば、「国民の民度が引くて踊らされている」のなら直さら自らの行為を説明して、捜査を納得させる義務があるのではないのでしょうか?
それは確かに正論だと思います。
私としては、検察がいかに口で説明したとしても、納得する人は納得するでしょうし、納得しない人は納得しないと思います。
結局は「起訴」や「刑事訴訟」によってはじめて検察の意図を理解することができるのかなと思いますので、口だけの証人喚問、形だけの証人喚問の意味があるのかと思った次第です。
捜査密行主義がなぜ世界的に是認されるかを考えてみた方が良いと思います（モトケン先生が概要を御説明されています。）。
「公判で証拠能力が認定された証拠以外の証拠（未成熟な証拠）」は、捜査目的以外の使用及び公表を禁じた上で、米国から捜査資料が日本に提供されました（ロッキード事件）。また、噂や伝聞程度では、国会の公聴会で証人を弾劾するのは不適法であるという確立されたルールも存在します（英米法）。
日本でも、刑事訴訟法の規定は次のとおりです。
第四十七条 訴訟に関する書類は、公判の開廷前には、これを公にしてはならない。但し、公益上の必要その他の事由があつて、相当と認められる場合は、この限りでない。
第五十三条の二 訴訟に関する書類及び押収物については、行政機関の保有する情報の公開に関する法律 （平成十一年法律第四十二号）及び独立行政法人等の保有する情報の公開に関する法律 （平成十三年法律第百四十号）の規定は、適用しない。
２ 訴訟に関する書類及び押収物に記録されている個人情報については、行政機関の保有する個人情報の保護に関する法律 （平成十五年法律第五十八号）第四章 及び独立行政法人等の保有する個人情報の保護に関する法律 （平成十五年法律第五十九号）第四章 の規定は、適用しない。
＞検察の本来の意図が国民に誤解される可能性すらあり、
少なくとも本来の意図に関する検察の公式見解は、
犯罪の嫌疑が認められるので捜査する。
起訴するべき事件について証拠が収集できれば起訴する。
起訴する以上は有罪判決を目指す。
これ以外にあり得ません。
そして、強制捜査に着手したという事実により、「犯罪の嫌疑が認められるので捜査する。」ということが言明されているも同じです。
そして起訴という行為により「起訴するべき事件について証拠が収集できれた」ということが明らかです。
捜査段階において、これ以上の余計なことを言えば、ご指摘のとおり、証拠隠滅につながる恐れがあります。
少なくとも聞かれるままに答えるわけにはいきません。
高度の情報コントロールが必要です。
そして、捜査の途中で検察からの公式発表のようなことをしますと、将来の公判立証に支障が生じる可能性があります。
参考情報提供
既にご存知の方も多いかと思いますが。
http://www.jiji.com/jc/c?g=pol_30&rel=j7&k=2009031100939
検事総長招致の西岡発言が波紋＝与党反発、民主も冷ややか
＞ただ、衆参両院事務局によると、検事総長を国会に招致した例は両院とも１９５７年を最後にない。自民党の村田吉隆国対筆頭副委員長は１１日の記者会見で「看過できない。捜査に政治が介入するのはあり得ない」と厳しく批判。公明党の北側一雄幹事長も「捜査の中立性、司法の独立を考えたら、立法機関に所属しているわれわれが誤解を与える発言は慎むべきだ」と述べ、三権分立の原則上、問題だと指摘した。
＞一方、野党側では、国民新党の亀井静香代表代行が「検察といえども政府の一員だから説明する必要がある」と理解を示したものの、民主党内の反応は「そのようなことは考えていない」（簗瀬進参院国対委員長）、「そんな簡単にできるものではない」（幹部）などと総じて冷ややかだ。
亀井静香も元警察官僚ですね。
例の政府高官といい亀井氏といい、どうも検察に対抗意識を持っているみたいですね。
亀井さんの退官後の発言に限っても、けっして「静か」じゃなくて、検察への牽制球を感じる発言が多いような気がします。
民主党にも，まともな人もいるんだな，と思いました。
ただ，個人的には，検事総長が出ていって，
「国策捜査？ はあ？ 何を根拠に？」
「証拠ありますよ。だからやるんですよ。」
「証拠の内容は言えませんよ。捜査ですよ捜査。裁判になれば，そのとき見てください」
「われわれが証拠を捏造してまで，民主党つぶしに入ったと？ そうおっしゃるんですか？ 何でわれわれがそんなことを？」
「なぜそう思ったんですか？ よく分からないんですが？」
「大丈夫ですか？」
「正気ですか？」
みたいなふうにやってもらってもいいような気がします。
かな～り昔の樋渡さんの印象からしますと
＞「大丈夫ですか？」
＞「正気ですか？」
あまり違和感がない（＾＾）
えーと、そう言う方なんですか。
是非とも証人喚問を見たくなってしまいました。
下に使えていた検事の方は大変だったのでしょうね。
ご投稿の内容は、会心の一撃で思わずニヤリとしました。「根拠レス質問？(ﾟДﾟ)マヂデスカ？検事が証拠に基づかない質問なんか法廷でしたら、弁護士は異議を出すし、裁判官が質問変えろと訴訟指揮しますけど？(ﾟДﾟ)マヂデス！」なんてｗ
地方議会答弁でこれをやるとクビ長が攻められるので出来ませんから、ぜひ国会で先例を作っていただけるといいかと。クビ長が国会議事録の先例を引用して答弁できるので、想定問答を起案する地方公務員は助かる人も多いかと思います（爆。
地方議会は国会の議事録先例に頭があがりませんので（マジ。
参考情報の二重投稿をお許しください。m(_ _)m
http://motoken.net/2009/03/10-213754.html#comment-5844
いや、今はどうか知りませんよ。
＞下に使えていた検事の方は大変だったのでしょうね。
そんな印象は残ってませんよ。
ちょっとおちゃめなところがあっても不思議はない、という程度です（＾＾）
あー、全く意味を取り違えていました。
申し訳ありません。
「大丈夫ですか？」
「正気ですか？」
を、詰問の意味と受け取ってしまったのです
少年が自宅に放火して家人が亡くなった事件について、その少年の供述調書がまるごと出版物に掲載されたため、その情報源である鑑定医が、秘密漏洩剤で逮捕・起訴されています。
その起訴理由は、「医師」としての守秘義務違反だったと思いますが、それでは検察からのリークはどうなの？と素朴な疑問です。
それと今回の西松建設からの献金問題ですが、国策捜査と思われてしまっている時点で検察のミス・失敗ではないでしょうか。
モトケンさんからすると、古巣を信用したいところだと思いますが、今回の逮捕はどう考えても疑問だらけです、正直。
長野県知事の秘書に自殺されてしまい、そのミスを挽回するために無理矢理、大物議員の秘書を逮捕した、そのような気がして仕方がありません。
政治資金規正法で逮捕しておいて「他に悪いことやっているんだろ」って自白を迫る、などというやり方については、正直怖さを感じます。企業からの献金だったとの「認識」があったものとみて捜査・取り調べなんて、冤罪作ろうとしているとしか思えません。
＞その起訴理由は、「医師」としての守秘義務違反だったと思いますが、それでは検察からのリークはどうなの？と素朴な疑問です。
で、あなたとしては検察のリークも起訴すべきだと思いますか？ というのがこのエントリの趣旨なんですけど。
参考までに指摘しますが、調書の流出は文書の流出になります。
今回はそのようなことは確認されていません。
＞それと今回の西松建設からの献金問題ですが、国策捜査と思われてしまっている時点で検察のミス・失敗ではないでしょうか。
別のところでも書いたと思いますが、「国策捜査と思われた」ということを言い換えると「誰かが国策捜査だと思った」ということですね。誰かが国策捜査だと思えば検察のミスになるんですか？
政治家に手を付ければ必ずそういう声が出てきますよ。どんなタイミングでも。
＞そのミスを挽回するために無理矢理、大物議員の秘書を逮捕した、
「無理矢理」というのはどういう意味でしょうか？
「証拠もないのに」という意味ですか？
今日何度も書いてますけど、逮捕しておいて起訴できない、または起訴したけど無罪になった、ということのほうが参考人に自殺されるよりはるかに検察にとってダメージが大きいんですよ。
＞冤罪作ろうとしているとしか思えません。
その根拠は？
モトケン先生レスが早いっす。
鑑定医の秘密漏示罪については、医師が女性ジャーナリストに直接調書を見せてしまったことが問題なのであって、女性ジャーナリストの取材に対し調書に基づき回答していたのならば、医師は罪には問われなかったのではないでしょうか？
捜査情報そのものではなく「捜査上知り得た情報に基づく私見、見解もしくは可能性の考察」の範囲内に収まるのであれば、守秘義務に違反するとは言い難いと考えます。
＞政治資金規正法で逮捕しておいて「他に悪いことやっているんだろ」って自白を迫る、などというやり方については、正直怖さを感じます。
いや政治資金規正法の取調べを最優先しているとしか思えませんが。
別件逮捕といいたいのでしょうが、そもそも、現状小沢氏に関するその他の疑惑なんて出てますか？
＞企業からの献金だったとの「認識」があったものとみて捜査・取り調べなんて、冤罪作ろうとしているとしか思えません。
冤罪も何も、特捜部は、認識があったという容疑で逮捕して、捜査・取調べをしているんですけど・・・
本件は通常逮捕ですから、おそらく東京地裁令状部も慎重に判断して証拠に基づき逮捕状を発布したと思います。与野党を問わず衆参の法務委員会の委員の大半は弁護士ですから、そういうことは先刻ご承知だと思いますし、平成年間以降は、特捜部が政治家や大物秘書を逮捕した場合の有罪率が一般事件より高いことも先刻ご承知かと思います。
モトケン様
私は検察側の記者会見以外による情報漏洩（情報リーク）は問題あると思っています。
小沢氏の件で言えば、形式犯であるのに金銭の多寡で捜査する対象が限られているのは問題ではないかという疑問はありますが、情報漏洩について記者会見を行えば1か0かの話にはならず完全な沈黙にはならないと思っています。
>そして、捜査の途中で検察からの公式発表のようなことをしますと、将来の公判立証に支障が生じる可能性があります。
公判立証に支障の生じない範囲で記者会見を行えばいいだけだと思います。（仮にその結果十分な情報を流せなくなってもです）
非公式に公判立証に支障の出る可能性のある情報を流すことを、国民の知る権利という言葉で行うのは問題あると思っています。
私がなぜそう思うかは、私の知人が過去に被疑者になり無罪になったことがあるのですが、警察に（検察ではなかったと思います）恣意的に偏った内容の情報をマスコミに流され、無罪になった後も信頼の回復に苦労しているのを見ているからです。
そのため、元検察官のモトケンさんと同様に偏った立場と言われる可能性のある人間ですが、「捜査機関は沈黙せよ」といった極端な内容ではなく、物足りない可能性はあるが問題ない内容を記者会見で発表する程度でいいと思っています。
> 検察・警察を含めて捜査機関により捜査関係情報がマスコミに流されることを完全に禁止したらどうなるだろうかという問題です
国民の知る権利が失われますので、現時点では大混乱が起こるだろう、という問題です。
あくまで現時点では、です。
裁判員制度が始まれば情勢は変わります。
http://www.yabelab.net/blog/2008/06/18-143805.php
の例のように、捜査機関側の強い意志が国民に伝わるように思わせるような報道が、今後もあるかもしれません。
裁判官は、この種の報道に判断が左右されることはないと思います。
でも、裁判員は？
裁判員にも裁判官と同様の素質が望まれるのでしょうか？
＞裁判員にも裁判官と同様の素質が望まれるのでしょうか？
望んでも無理でしょう。
つまり望むべきではない、ということです。
となると、犯罪報道をめぐる問題は現在よりもっとシビアになりますね。
マスコミにおいて、リーク情報は捜査側からの情報であるということをもっと自覚する必要があると思います。
今後一層マスコミの見識が問われることになると考えています。
ありがとうございます。
ええ、マスコミ側の見識が問われますよね。
裁判員制度が始まれば知る権利を制限する方向の報道が必要になる可能性があることを、なぜどの報道機関も熱心に報じないのでしょうかね。
私は裁判の場以外で一方的な捜査情報のリークを行うのは適切ではないと思います。 もし最近の西松絡みの情報が検察のリークだとしたら問題です。
裁判なら検察が出した証言に対する反対尋問もあるでしょうが、そう言った物が出来ない状況の証言を本当であるかのように流したらどういう結果を生むかはある程度予想出来るはずです。
検察が政治に介入しないと言う名目を本当に守るのであれば、選挙が近いこの時期に、この手の話題をマスコミに提供している事はその名目を疑われる事になるのではないでしょうか？
とは書きましたが、西松関係者の証言ってのがマスコミの取材の結果なのか、検察の情報リークなのかを証明する手段は無いですけどね。(^^;;
国民の知る権利を守るため､というのであれば、捜査情報の提供は公式な記者会見によって行えばよい話であって、
匿名で検証不可能な､そして責任を問われずに済むような形でリークする理由にはならないと思います。
再度書きますが､不確定かつ検証不可能な情報が得られることは､
果たして国民の利益といえるでしょうか？
検証という観点で言えば、ほとんど全てのマスコミ報道について一般読者は検証不可能です。
一般読者はマスコミが報道前に検証つまり裏付け取材をしたものとして読んでいるはずです。
そしてマスコミ、例えば新聞記者と検察リークとの関係で言えば、記者からは検察の誰が何を言ったのか明らかです。自分が取材しているんですから。
そして記者においては検証つまり裏付け取材が可能です。
ちなみにこういうエントリがあります。
検察の「リーク」について（池田信夫blog）
私は検察の意図と行動、そしてその責任に焦点を当てたいのですが､モトケン様はマスコミの責任に焦点を当てたいと。
そんな感じですね。
すでに検察を離れた人間としてはいろいろ知りたいんですよ。
ただし、正しいことを知りたいです。
そして、知らせる立場にあるのはマスコミです。
これを見ればわかるでしょ。
＞私は検察の意図と行動、そしてその責任に焦点を当てたいのですが､
ponさんの問題意識を批判したり否定するつもりはありませんが、それこそ検証困難です。
（誤解を招く表現がありましたので訂正しました。モトケン）
自己レス補足
そうなると、目に見えるマスコミ報道の観点からアプローチするほうが現実的だと思われます。
No.27およびNo.28 pon さん
それは比喩としてではなく文字通りの「大本営発表」報道と同義ですよ。
そういった「官による権威付け」がなされた情報に限り得られるということが、果たして国民の利益といえるでしょうか？
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