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2008.05.03

激動する刑事司法について考える

 政府は、2008年4月15日、重大な刑事事件の刑事裁判に、市民から選ばれた裁判員と裁判官が事実認定と量刑を判断する裁判員制度の開始を2009年5月21日からとする政令を閣議決定し、早ければ同年7月末ころから裁判員裁判の公判が開始されることが決まった。

 裁判員制度については、新潟弁護士会が2008年2月29日に、「裁判員裁判実施の延期に関する決議」をするなど、弁護士会の中でも異論が出されているし、弁護士会の内外で強い反対論がある。

 最高裁判所が2008年4月1日に公表した「裁判員制度に関する意識調査」においても、60.3%の人が「裁判員に選ばれれば参加する」と回答したとされるが、2006年12月に同じ設問で行われた内閣府の世論調査の65.3%より5ポイントも低下しており、改めて、国民の参加意識が高まっていない実態が明らかになっている。
 このように、裁判員裁判が果たして順調に導入できるかどうかについては前途多難な状況にある。

 裁判員制度との関係で、最近、刑事裁判における死刑選択のあり方が問題となっている。

 山口県光市で起きた母子殺害事件について、被告人である少年(事件当時18歳と30日)について、第1審・控訴審は、いずれも無期懲役を選択していた。しかし、検察官の量刑不当を理由とする上告を最高裁が容れ、広島高裁に差し戻し、その審理が注目されていたが、広島高裁は、2008年4月22日、原審の無期懲役判決を破棄して、被告人を死刑とする判決を言い渡した。

 最高裁判所は、1983年の永山則夫元死刑囚に対する判決において、死刑選択の判断基準として9項目を挙げたており(いわゆる永山基準)、そこでは被害者の数が重要な要素とされていたが、光市事件の被害者2人の場合は、判断が分かれる境界事例であり、永山判決以降に被告人が少年の事件で死刑判決が確定したのはわずか2件だけで、いずれも被害者は4人だった。
 広島高裁は、結果の重大性を重視して、たとえ少年でも、故意に複数の命を奪った事件に対しては積極的に死刑を適用すべきだとの司法判断を示したと言えるが、明確に厳罰化に踏み出した判断であったと言える。

 それとともに、広島高裁判決は、公訴事実を争った弁護人の弁護活動のあり方に対しても批判的な立場を示しと言え、改めて、重大事件に対する刑事弁護のあり方についての議論を提起するとともに、重大な事件についての刑事弁護を萎縮させるのではないかとの懸念が生じている。

 ちなみに、光市事件では、被害者遺族のコメントを中心にマスコミが弁護団批判の立場で番組を制作したことによって、国民の中に弁護団バッシングの雰囲気が醸成していただけに(この点は、BPOの放送倫理検証委員会が2008年4月15日に、被告人や弁護人を批判するニュアンスが濃く、公平性や正確性に欠けたとする意見を発表していた)、広島高裁の判決は、結果的に、それを後押しする役割を果たしたとも言える。

 光市事件の差戻審判決の翌日である2008年4月23日には、安田好弘弁護士に対する強制執行妨害事件(第1審の東京地裁では完全な無罪判決であった)について、東京高等裁判所(池田耕平裁判長)は、安田弁護士に対する逆転有罪判決(罰金50万円)を言い渡した(その後、弁護側と検察の双方が上告している)
 これは、弁護士としての依頼者に対する民事上のアドバイスが強制執行妨害の幇助犯であったと判断するものであった。この判決は、全面的に検察官の主張を取り入れて原判決を破棄したものであり、改めて弁護士の職責のあり方に対して厳しい判断を示したものと言える。

 裁判員制度との関係では、最近、責任能力の判断のあり方も問われている。

 最高裁第二小法廷は、2008年4月25日、「精神医学者の鑑定は、公正さに疑いがあったり前提条件に問題があるなどの事情がない限り、十分に尊重すべき」であるとの初判断を示した。
 ところが、いわゆる渋谷の夫殺害事件について、東京地方裁判所は、2008年4月28日、検察と弁護側双方が申請した鑑定医2人が、「殺害時は心神喪失状態で責任能力はなかった」とする鑑定結果を出していたにも関わらず、完全責任能力があると判断して、有罪の実刑判決(懲役15年、求刑は懲役20年)を言い渡した。
 重大な犯罪結果が発生した事件では責任能力を否定しないという判断については(裁判例では従来からそのような傾向があった)、疑問の声も上がっている。この事件は、改めて、責任能力の判断の困難さを示している。

 このように、裁判員制度導入前に、市民である裁判員に、死刑か無期かという判断をさせたり、責任能力の有無について判断させるという、プロの裁判官でも困難な判断をさせることの問題性が徐々に明らかになっている。そのような中で、マスコミが被害者寄りの立場から偏った報道をしたり、弁護人をバッシングするという傾向の中で、重大な事件の刑事弁護を行うことがますます困難となっている。

 このように、現在、刑事司法は激動の時代を迎えており、ますます、悪い方向に向かっていると感じられる。このような危機意識を共有しつつ、この激流に抗するために何ができるのかを考えていきたい。

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