前回の「人質司法というのは誰の問題か?」は、このエントリのための前提の説明にあたります。
捜査段階における勾留の許否の場合と保釈請求における保釈の許否の場合は、微妙に異なりますが、特に保釈においては裁判官はとても広い裁量権を持っています。
「罪証を隠滅すると疑うに足りる相当な理由」を抽象化すればするほどその裁量権は広くなります。
保釈の判断においては、刑事訴訟法第89条がその本文において
保釈の請求があつたときは、次の場合を除いては、これを許さなければならない。
と規定しているように、保釈請求をこれを許可するのが原則である、というのが法の建前です。
で、「罪証を隠滅すると疑うに足りる相当な理由」があれば保釈を許可してはいけないのかというとそうではありません。
刑事訴訟法は、第89条の後の第90条で
裁判所は、適当と認めるときは、職権で保釈を許すことができる。
と規定していますから、抽象的な「罪証を隠滅すると疑うに足りる相当な理由」があっても裁判官が保釈してもかまわない(適当)と思えば保釈を許可できるのです。
文字通り適当な定め方になっています。
つまり、裁判官が「罪証を隠滅すると疑うに足りる相当な理由」がちょっとでもあると思えば、保釈するもしないも裁判官の腹次第ということです。
ということは、裁判官が「罪証を隠滅すると疑うに足りる相当な理由」がちょっとでもあると思えば(そして、裁判官が「罪証を隠滅すると疑うに足りる相当な理由」などは想像をたくましくすればいくらでも想定可能です)、保釈請求を却下しても違法でもなんでもないということになります。
人質司法と対比できそうな問題として、検察官の接見指定の問題があります。
どういう問題かはウィキペディアをご覧下さい(手抜きですみません)。
接見指定の問題の主役は裁判官ではなく検察官です。
検察官による弁護人に対する接見の日時の指定の違法性が国家賠償請求という形で激しく争われ、検察側(国ですね)は連戦連敗しました。
その結果、現在では、問題の発生が全くなくなったわけではありませんが、原則として、弁護人の希望をできるだけ尊重する運用がなされているはずです。
余談ですが、私自身は、接見指定をしたことがありませんでした。
弁護人が接見した後の供述のほうが公判で争われる余地が少なくなるからです。
話を戻すと、接見指定問題では、弁護人からの法廷闘争によって、状況が改善されたことは事実です。
しかし、人質司法の代表かつ典型である保釈請求に対する裁判官の却下決定にたいしては、国家賠償を起こせるほどの違法性を認めることが困難なのです。
従って、国家賠償請求訴訟によって、運用を変えさせるということもできません。
保釈についての判断が違法ではないとするならば、保釈制度そのものの制度改正というのも難しいものがあります。
となると、保釈制度以外の制度によってバランスを取ろうという動きも出てくるわけです。
本末転倒しているかどうかはともかくとして。
ところで、小倉秀夫弁護士は、「la_causette」で
人質司法の「人質」司法たるゆえんは,被疑者・被告人の身柄が拘束されていることに乗じて被疑者・被告人に対し義務のないことを行いまたは正当な権利を行使しないことを明示的にまたは黙示的に求める点にあります。
と述べていますが、私の理解とはずれがあります。
小倉弁護士は「被疑者・被告人の身柄が拘束されていることに乗じて」と言っていますが、私は、その身柄拘束がどういうものであるかが問題だと考えています。
私を含めて刑事事件に携わっている弁護士はほぼ例外なく人質司法に憤りを感じる経験を持っているはずです。
しかし、人質司法として憤りを感じる理由の根本は、裁判官が、必要性の乏しい身柄拘束(主に勾留)を認めることにあります。
捜査段階で最初から最後まで認めていても保釈を却下する裁判官がいます。
否認しているからといって保釈を却下する裁判官がいます。
しかし、警察や検察官の描くストーリーと異なる主張をすることと罪証隠滅の怖れとは別問題です。
罪証隠滅とは、存在する証拠を毀損しまたは歪曲し、存在しない証拠を作出(捏造)することを意味しますが、否認していることを持って罪証隠滅の恐れがあるということは、法廷における証拠調べを待たずして検察官の主張が真実であると決めつけることを意味します。
無罪推定を働かせるならば、否認している被告人こそ保釈して自らが無実であることを示す真実の証拠を発見する機会を保証しなければなりません。
つまり、否認していること自体を罪証隠滅の恐れの理由にはならないし、していはいけないのです。
言い換えれば、逮捕・勾留の理由があるのであれば、それは人質司法とは言いにくいのです。
人質という言葉は、身柄拘束自体が不当であることを示す言葉です。
しかし、小倉弁護士が紹介しているように、
「起訴猶予になるような調書を作るから、協力しろ」「約束する。10日間で出してやる」昨年11月、鹿児島県警に出資法違反容疑で逮捕された女性(48)は、取調官から、身柄拘束からの解放を条件に、自白を促されたという。
というような取調べをする警察官(検事も)がいることは否定しません。
じゃあ、これはなんだ、人質司法じゃないのか?ということが問題になりますが、これは、人質司法と言われる現状を利用した詐欺的利益誘導による違法な取調べです。
なぜ詐欺的かと言いますと、報道によれば、この取調官というのは警察官だと思われますが、警察官にそれも取調べ担当警察官には被疑者の身柄を釈放する権限は実質的にも形式的にもないからです。
弁護人がついているのに、権限がないのにあるかのように装う警察官が未だにいるのかと感心させられますがそれはともかく、このような違法な取調べは人質司法の現状を利用するものですが、人質司法そのものではないと思われます。単なる人質司法よりもっと悪質です。
女性は何度も、自分も被害者だと訴え共謀を否定したというが、否認のまま起訴された。起訴後、鹿児島地裁への保釈請求は「証拠隠滅の恐れ」などを理由に、少なくとも3回却下された。鹿児島中央署での拘置は約3カ月に及び、不眠で心身に変調をきたした。「認めて出よう」。心配した家族の説得もあり、今年2月、弁護人と相談して起訴事実を認める内容の上申書と医師の診断書を添え、再度、保釈を申請。ようやく認められた。その後、女性は執行猶予付きの有罪判決を受け、刑は確定した。
この部分は、人質司法だと思います。
起訴後,この女性が起訴事実を認める内容の上申書を提出するまで,再三の保釈請求にもかかわらず保釈を認めなかった(それゆえ,この女性は,意に沿わない内容の上記上申書を提出し,執行猶予つきの有罪判決を甘んじて受けることとなった)点については,罪証隠滅のおそれがあるとして保釈に反対する意見を出し続けた検察官と,その検察官の意見を聞き入れ続けた裁判官とのいわば「共犯」と評価しても良いとは思いますが。
刑法上、共犯の語は多義的です。幇助犯と共同正犯はかなり立場が違います。
検察官の反対意見はせいぜい幇助犯どまりです。
裁判所は検察官の意見に従う義務はありません。
法の定めがあるから検察官の意見を聞いているだけです。
検察官の意見に引っ張られるすぎる裁判官がいるというのであれば、それはまさしく裁判官の問題です。
そして,捜査段階での人質司法的な手法を防ぐためには,警察・検察に対し,身柄拘束と絡めて「自白」を促すことを改めて禁止するとともに,取調べ状況を録画したビデオにより,特定の取調べ担当官が身柄拘束と絡める形で「自白」を促していたことが発覚した場合には,当該取調官をしかるべく処分することが必要です。あら,人質司法と取調べ可視化の問題がリンクしてしまいました。
小倉弁護士は、取調べの適正化の問題と人質司法の問題の峻別ができていないようです。
人質司法の現状が、違法な利益誘導に利用されることがあることは否定しませんし、その意味で人質司法と違法な取調べが「リンク」することはありますが、人質司法は、取調べに違法性が全くない場合にも問題になります。
というか、人質司法が被告人に深刻な不利益をもたらす場合の半分は取調べに何の問題もない場合です。
「半分」というのは数字の問題ではなく、刑事事件を「自白事件」と「否認事件」に分けた場合の「自白事件」の場合についてのことです。
この点については、またあらためて。
>私を含めて刑事事件に携わっている弁護士はほぼ例外なく人質司法に憤りを感じる経験を持っているはずです。
>しかし、人質司法として憤りを感じる理由の根本は、裁判官が、必要性の乏しい身柄拘束(主に勾留)を認めることにあります。
経験に基づく意見は、門外漢σ(^_^)に対しても、迫真性も切実な実益性もヒシヒシと感じることが多いです。それに対し経験不足や不勉強無能な意見は、中傷的でボヤっとして不自然なバイアスを感じることが多いです。独り言です。m(_ _)m
>つまり、否認していること自体を罪証隠滅の恐れの理由にはならないし、
>していはいけないのです。
にも関わらず((裁判官だってそれくらい百も承知じゃないのか知ら))、それでも裁判官が保釈を認めない理由について、モトケンさんは言及されていらっしゃらないように思います。
何故、その裁判官は、それを理由にしてしてまで保釈を認めないのでしょう?
その判断が形式化されてしまってるからとしか私には見えません。
つまりお役所仕事にならざるを得ない事情があるのではなかろうか。。と思ったりします。
裁判官の人数が足らないなら増やせよなと、一民間人の私としては思うばかりであります。
引用箇所が相前後して申し訳ないのですが、
この点が少し疑問なのですね。
と申しますのは、
これはしばしば耳にする論理で、私も、その通りだと思うのです。そうであれば、
このような裁判官は、明らかに間違ったことをしているので、賠償の対象になるように思うのです。
浅薄な疑問で恐縮ですが、どこか勘違いなどがあれば御指摘を頂けますようお願いいたします。
否認していなくとも、その後否認に転じる場合もあるのだから、それを考慮すれば、否認の有無自体は証拠隠滅の恐れの有無とは関係ないと思う。
したがって、否認しているからといって直ちに保釈を却下する理由とはならないし、否認していないからといって直ちに保釈を認める理由ともならない。
否認しているからといって保釈を却下する=明らかに間違ったこと
この解釈は誤りです。
法律的には、否認しているからといって保釈を却下する=合法です。
刑事訴訟法をその通りに解釈すれば「思う」という理由だけで却下してもOKという、まさしく裁判官の胸先三寸次第で拘留請求却下が決まると言っても過言ではない法規定なのです。合法だから国家賠償請求できない、とモトケンさんは説明していますが・・・orz
飲み込みが悪くて申し訳ありません。
モトケンさんが言われる「否認しているからといって保釈を却下する裁判官」というのは、「否認していること自体を罪証隠滅の恐れの理由にして」保釈を却下するのですよね。
一方、「否認していること自体を罪証隠滅の恐れの理由にする」ことは間違っていることを、モトケンさんをはじめ皆さま指摘しておられます。
すると、上記の裁判官は、「明らかに間違った判断」をしたということではないのでしょうか。なぜ「否認しているからといって保釈を却下する=合法」となるのか、なかなか理解できないです。法律解釈って難しいです!
>なぜ「否認しているからといって保釈を却下する=合法」となるのか、なかなか理解できないです。法律解釈って難しいです!
否認しているからという理由では保釈の却下はできないものと思料します。刑事訴訟法第89条に保釈を認めない場合として「否認している」ことなんて出てきてませんから。
あくまでも否認しているから証拠隠滅の恐れありと判断して、それを理由に保釈を却下しているものと推察されます。
してみれば、あとは「否認しているから証拠隠滅の恐れあり」という論理展開の当否の問題となります。そしてそれは個別具体的事情によって判断されるものと考えます。
熊本勇太 さん
私の説明が端折りすぎで、解りにくかったようでお詫びします。改めて解説をしてみますが、私自身は刑法や刑事訴訟法は専門外です(私は労働法と社会保険法が専門です)ので、厳密な刑事訴訟法の解釈や用語遣いとは微妙な差異があるかもしれません。その辺はあらかじめご承知おき下さい。また大変長い解説となったことをお断りしておきます。
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取り調べでの身柄拘束としては、逮捕状による身柄拘束(留置)が48時間が経過するまでに、警察は留置を解いて釈放するか、それとも身柄を拘束したまま検察に送るか、刑事訴訟法203条により決定しなければいけません。送検を受けた検察は、捜査のために引き続き身柄を拘束する必要があると思料したときは、送検後24時間以内に裁判所に被疑者の勾留を請求しなければなりません(刑事訴訟法205条)。
この検事からの拘留請求を受けた裁判所(裁判官)は、刑事訴訟法60条1項の各号に定められた、勾留を認めるやむを得ない3つの事由に該当すると判断したときは、請求を認めて勾留状を発して10日間の身柄拘束(検事勾留)を許可します。逆に60条1項の1~3号のいずれにも該当しないと判断したときは、勾留請求を却下して釈放させることになります。
では、刑事訴訟法第60条1項の1~3号の規定は、実際にどのように書かれているのか以下に条文をそのまま引用します。
ここには「被疑者が否認しているとき」という表現はありません。でも実際に被疑者が全面的に否認していると、ほぼ100%検事からの勾留請求は許可され、10日間(延長が認められると合計20日間まで可能)の検事勾留が行われます。何故かというと、否認しているときは、捜査機関がまだ見付けていない証拠を隠したり、誤魔化したりする工作を行う可能性が強いと思われてしまうからです。
では、実際には犯罪を実行した被疑者が「俺はやっていない」と否認しているときに釈放したら、どのような行動を取るかもしれないと思えるのか、想像力を働かせてみましょう。
例えば轢き逃げ事件であれば、自分の車の人とぶつかった痕跡を誤魔化すため、わざとコンクリートのカベに車を再び衝突させて、メチャクチャに壊して誤魔化したりするかもしれません。また脅迫事件であれば、捜査官に事情聴取され時には和やかな会談だったと言えと、相手をさらに脅して犯罪が成立しなかったように工作することが考えられます。
これらは罪を免れたり軽くしたりするための工作であり、否認している被疑者は、証拠隠滅を行うかもしれないと裁判官が疑いを持つことを、一概に否定することはできないことに納得頂けると思います。このような証拠隠滅を行うかもしれないと疑われることは、前記引用の60条1項の二号に規定に該当し、勾留状発布の合法的な理由になります。
逆に犯罪の事実関係は素直に認め、起訴して訴訟を維持するに必要な証拠は、すでに一通り捜査機関が押さえてある場合などには、逮捕や検事勾留せずに在宅のままで取り調べ、起訴することがあります。最近ではJR西日本の前社長が、福知山線脱線転覆事故での業務上過失致死傷罪で捜査され起訴されましたが、逮捕や検事に勾留されずに在宅のままでの捜査でした。
こちらの例では事故直後の家宅捜索や現場検証によって物的証拠は隠しようがありませんし、前社長ほか関係者は事情聴取などの捜査に協力的だったために、前社長を逮捕して長期間身柄拘束して取り調べる必要性が薄かった為と推測できます。また、事故原因と過失責任の関連性を示す科学的鑑定データなど、起訴を決断できる証拠固めに年単位の長期間が必要と見込まれ、早い段階で前社長を逮捕して拘留請求をしても、最長の20日間の勾留期間内で捜査が終了して起訴できる見通しが立たないため、検察が逮捕や拘留請求を見送っている側面もあります。
JR西日本の前社長の捜査と違い現行犯逮捕事件などでは、このように逮捕後48時間経過の時点で拘留請求するか釈放するかの判断が求められます。この時に被疑者が全面的に否認しているような場合、罪証隠滅のおそれありと検察官が考え、同じように裁判官が証拠隠滅の疑いを持つことは、充分考えられることです。そしてその証拠隠滅の疑いを持つことは、刑事訴訟法の規定に違反する行為ではありません。
また以上は起訴前の被疑者段階での身柄拘束(勾留)の解説ですが、もう一つ起訴された後の被告人となった以後の勾留(被告人勾留)もあります。そちらも裁判官がどの程度疑うか、逆に言えばどの程度被告人を信頼できるかの印象によって、保釈するかどうか決めて良いこと(刑訴法89条ほか)になっています。
ここをモトケンさんが解説した文章が、エントリ本文の下記の部分です。
違法ではないということで「合法」と表現したのですが、逆に理解しにくいことになったようで、それは申し訳ないことをしました。以上縷々解説したとおり、検察官からの勾留請求許可の判断、或いは逆に弁護人からの保釈請求の却下の判断は、どちらも裁判官の明確な法令違反を問うのが困難です。そして法令違反の立証ができなければ、国家賠償を請求しても認められません。
その結果
というモトケンさんのエントリ本文での記述に繋がります。------------------------------
これでご理解頂けたでしょうか?
なお、モトケンさんの勾留に対する考え方は、否認すると証拠隠滅の疑いを持たれることを否定できない以上、身柄拘束されて取り調べられるのは仕方が無い、というお考えではないと想像します。
証拠隠滅のおそれについては、法令上に明確な基準のガイドラインが示されておらず、裁判官の自由な印象で判断して良いのだから、刑事訴訟法を改正するまでもなく、裁判官の「心の判断基準」を少し変えれば大きく違うはずだ。否認しているから必ず証拠隠滅すると判断するのではなく、個々の被疑者ごとに犯罪の背景や他の証拠などを検討し、否認しているが証拠隠滅のおそれは大きくないと判断できれば、今の刑事訴訟法の規定のままでも勾留請求を却下できるはずだ。
そしてそのように積極的に勾留請求を却下した場合には、否認者を厳しく疑って勾留している現状に比べ、必ず実際に証拠隠滅を行う不届き者は出て来るであろう。そうした不届き者の出現や増加は、犯罪捜査の阻害要因であり、社会的には不利益ではあるが、被疑者や被告人の人権侵害という不利益と比較したときに、長期の身柄拘束によるいわゆる人質司法の不利益が多きに過ぎてバランスを欠いている。故に裁判官は刑事訴訟法改正が無ければなどと言わず、もっと積極的に拘留請求却下を検討すべきだ。
モトケンさんはこうしたお考えの元に、一連のエントリで人質司法について語られていると、私自身は想像しています。
(モトケンさん、私の想像が違ったらご指摘下さい)
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