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2015 (A) 416

2016.12.09
2015 (A) 416
Keishu Vol.70, No.8
Judgment concerning a case regarding inspections performed by a customs officer without a warrant as part of the simplified procedures for import and export of mail, for which the Supreme Court found that it does not contravene the purpose of Article 35 of the Constitution to construe that the said inspections were allowed under Article 76 of the Customs Act (prior to amendment pursuant to Law No. 30 of 2012) and Article 105, paragraph (1), items (i) and (iii) of the Customs Act (prior to amendment pursuant to Law No. 7 of 2011)
Case of violation of the Stimulants Control Act and violation of the Customs Act
Judgment of the Third Petty Bench, dismissed
Tokyo High Court, Judgment of February 6, 2015
It does not contravene the purpose of Article 35 of the Constitution to construe that the inspection of mail by a customs officer by opening the mail to confirm whether it contained any banned items to be imported as part of the simplified procedure for exporting and importing mail, visually confirming the content of the mail, taking a minimum volume of the content as a sample, and forwarding it to an expert for expert examination (refer to the text of the judgment), without a warrant issued by a judge and without the consent of the sender or receiver of the mail, was an act allowed under Article 76 of the Customs Act (prior to amendment pursuant to Law No. 30 of 2012) and Article 105, paragraph (1), items (i) and (iii) of the Customs Act (prior to amendment pursuant to Law No. 7 of 2011)
Article 35 of the Constitution, Article 76 of the Customs Act (prior to amendment pursuant to Law No. 30 of 2012), Article 105, paragraph (1), items (i) and (iii) and paragraph (3) of the same Article of the Customs Act (prior to amendment pursuant to Law No. 7 of 2011)



Constitution of Japan

Article 35. The right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause and particularly describing the place to be searched and things to be seized, or except as provided by Article 33.

Customs Act (prior to amendment pursuant to Law No. 30 of 2012)

Article 76

1. Provisions of Articles 67 through 69 (Permission of Export or Import, Procedures for Export or Import Declaration, Special Exception to Export Declaration, Cancellation of Export Permission, Reporting of Loss of Excepted Export Goods, Approval Requirements, Improvement Measures Related to Rules, Keeping of Books, Reporting of No More Necessity of Application of Exceptional Treatment in Export Declaration, Expiration of Approval, Cancellation of Approval, Application Mutatis Mutandis of Provisions for Succession of Permission, Certification of Manufacturer, Improvement Measures Related to Rules, Reporting of No More Necessity of Certification as Certified Manufacturer, Expiration of Certification, Cancellation of Certification, Application Mutatis Mutandis of Provisions for Succession of Permission, Documents to be Submitted for Export or Import Declaration, and Place of Goods Inspection) and Articles 70 through 73 (Certification or Confirmation, Import of Goods with False Presentation of Place of Origin, Payment of Customs Duties and Permission of Import, and Collection of Goods Before Permission of Import) shall not apply to mail (excluding mail whose prices (taxable prices in the case of imported mail) exceed 200,000 yen (excluding gifts and other items specified in the relevant cabinet order) and mail related to cases the cabinet order specified in paragraph 3, the same definition shall apply hereinafter in this paragraph, Article 94 and item (ix) of Article 114-2); and the provisions of the previous Article shall be applied to mail by replacing the wording of “excluding goods temporarily unloaded (excluding goods requiring permission pursuant to Article 48, paragraph (1) (Permission for Export) of the Foreign Exchange and Foreign Trade Act (Law No. 228, 1949), the same definition shall apply in Article 108-4, paragraphs (1) and (2) and Article 111, paragraph (1), item (i))” in the previous Article with the wording of “limited to those requiring permission under the provisions of Article 48, paragraph (1) (Import Permission) of the Foreign Exchange and Foreign Trade Act (Law No. 228, 1949)”; provided, however, that the directors-general of customs houses shall have customs officers perform necessary inspections of goods contained in imported mail or mail to be exported, except for correspondence, specified in the relevant cabinet order.

2. Customs officers shall not violate the confidentiality of correspondence when they perform the inspection specified in the proviso of the previous Paragraph.

3. When Japan Post Service Co., Ltd. receives imported mail or mail to be exported (excluding those containing only documents), it shall present such mail to the director-general of the customs house, excluding mail for which exporters or importers report to make a declaration specified in Article 67 or mail specified in the relevant cabinet order.

4. The provisions in Article 70 shall apply mutatis mutandis to mail inspected pursuant to the provisions of the proviso of paragraph 1 above, in which case the wording of “export or import declaration” in paragraph (1) of Article 70, or the wording in paragraph (2) of the same Article of “the inspection and the examination by the customs house relating to export or import declaration in Article 67 (Permission of Export or Import)” shall be replaced with the wording of “the inspection under the proviso of Article 76, paragraph (1) and other customs house examinations relating to mail”; and the wording “shall not permit export or import” in paragraph (3) of Article 70 shall be replaced with the wording of “Japan Post Service Co., Ltd. shall not ship the mail or deliver the mail to the receiver.”

5. When the inspection stipulated in the provision of paragraph 1 is completed, or if the director-general of the customs house determines that such inspection is not necessary, he/she shall notify Japan Post Service Co., Ltd. thereof.

Customs Act (prior to amendment pursuant to Law No. 7 of 2011)

Article 105

1. Customs officers may conduct the following acts if such acts are necessary to perform their duties pursuant to the provisions of this Act (excluding Chapter 11 (Investigation and disposition of criminal cases)), the Customs Tariff Act or any other law related to customs duties, within the range of such necessity:

(i) Ask questions to owners, occupants, managers, ship masters, pilots in command, transporters and/or any related parties regarding foreign trading vessels, vessels other than foreign trading vessels or airplanes or automobiles, onto which foreign goods have been loaded, or stored or brought into or taken out of bonded areas; inspect such carriers or goods; or demand presentation or submission of relevant documents (including electromagnetic records if such electromagnetic records are created or retained in place of such documents) in place of such questions or inspection.

(iii) Collect samples or demand submission of samples in connection with the inspection stipulated in Article 43-4 (Inspection for Approving Placement of Foreign Goods) (including cases where the provisions of the same Article are applied mutatis mutandis in Article 61-4 and Article 62-15), Article 61, paragraph (3) (Bonding Operation Outside Bonded Plants) (including cases where the provisions of the same Article are applied mutatis mutandis in Article 62-7 and Article 62-15), Article 62-3, paragraph (2) (Procedure for Foreign Goods to be Moved Into Bonded Show Places), Article 63, paragraph (2) (Bonded Transport), Article 67 (Permission of Export or Import) (including cases where the provision of the same Articles are applied mutatis mutandis in Article 75), Article 67-4, paragraph (3) (Cancellation of Permission of Export) or the proviso of Article 76, paragraph (1) (Simplified Procedures for Export and Import of Mail).

3. The authority to conduct questioning or perform inspections pursuant to paragraph 1 above shall not be construed to be granted for the purpose of a criminal investigation.
The final appeal of the defendant is dismissed.

The 550 days of pre-sentencing detention for this instance shall be regarded as implementation of part of the imprisonment with work imposed by the judgment in the first instance.
1. Regarding violation of Article 35 of the Constitution argued in the reason for final appeal by KOMATSU Keisuke, the defense counsel:

(1) According to the findings of the facts and records in the judgment of the prior instance, the factual situation surrounding the customs inspections under this case was as follows:

a. On August 21, 2012, when a customs officer, who was in charge of inspecting mail and other tasks at the Tokyo Overseas Mail Sub-Branch in Tokyo Customs, was handling mail sent from Iran to a foreigner staying in Tokyo (hereinafter referred to as the “Mail”) at the inspection section of the EMS & parcel division within the Tokyo International Branch Office of Japan Post Service Co., Ltd. Because the customs officer could not confirm the content of the Mail, the officer opened the package of the Mail and confirmed visually that it contained two plastic bottles in a plastic bag.

b. The customs officer conducted a TDS test (a test using a strip of paper called a wiper) for both bottles. Since a positive reaction for stimulant drugs was observed from both bottles, the customs officer forwarded the Mail to a special inquiry officer at the same branch office.

c. The special inquiry officer took the Mail to the examination room within the branch office, took the two bottles out of the package, opened the outer and inner caps of the bottles, took out white solid ellipsoidal shaped materials out of the bottles and measured their weight and took photographs of them, and then took a very small amount of the chips from the said solid materials and conducted a provisional test of the material using a narcotic drug test reagent and stimulant drug agent. Since the test results were positive, the special inquiry officer requested, via the investigation department of the customs office, an expert examination by the assay section of the operation department of the customs office. An officer from the assay section then took the said small amount of chips from the said solid material to the assay section.

d. The special inquiry officer stored the Mail in the examination room of the branch office, and, upon receiving a report that the aforementioned expert examination revealed the content to be a stimulant drug, the special inquiry officer reported it as a detection case to the investigation department of the customs office.

e. Upon receipt of the said report, the deputy director general of the customs office presented a seizure warrant to an employee of Japan Post Service Co., Ltd. and seized the Mail on the 24th day of the same month.



(2) The defense counsel argues that inspections made on the Mail in (a) to (c) of (1) above (hereinafter referred to as “Mail Inspections”) were an infringement of privacy rights and property rights through destruction of the Mail and using its content, performed for the purpose of detection, without the consent of the sender or receiver of the Mail and without a warrant issued by a judge; thus the admissibility as evidence of the stimulant drug contained in the Mail under this case, which was an evidentiary item collected by the Mail Inspections, and the expert opinion related thereof should be denied since such inspections were not allowed under the Customs Act and were compulsory measures not allowed under Article 35 of the Constitution. Therefore, the decision of the first instance that found admissibility of these evidentiary items and the decision of the prior instance that supported the decision of the first instance misinterpreted the Customs Act and the Code of Criminal Procedure and violated Article 35 of the Constitution.



(3) Article 76 of the Customs Act prior to amendment pursuant to Law No.30 of 2012 stipulates a simplified procedure for exporting and importing mail, and the proviso of paragraph (1) of the same Article stipulates that the head of a customs office should have customs officers perform necessary inspections of the contents of mail subject to the simplified procedure, excluding documents; and paragraph (3) of the same Article stipulates that Japan Post Service Co., Ltd. (Japan Post Co., Ltd. under the current Customs Act) should present such mail to the head of the customs office. Additionally, Article 105, paragraph (1) of the Customs Act prior to amendment pursuant to Law No. 7 of 2011 stipulates that customs officers may inspect shipments from foreign countries, including mail, if such an act is necessary for performing their duties within the extent deemed necessary pursuant to the provisions of the same Act and other provisions (item (i) of the same paragraph), and that customs officers may collect samples from mail in the inspection performed as part of the simplified procedure for export and import of mail (item (iii) of the same paragraph).



These provisions (hereinafter referred to as “Provisions”) are construed to be provided in order to simply and quickly realize the administrative purpose, which is the fair and correct imposition and collection of customs duties and proper and smooth operations for customs clearing processes for vast quantities of mail. To do this, it is absolutely necessary for customs officers to conduct timely inspections necessary for identifying the contents of mail by opening them; and it is clear from the language used in the Customs Act that neither a warrant issued by a judge nor consent of the sender or receiver of the mail is required for customs officers to exercise their authority to conduct inspections pursuant to these Provisions.



(4) On the other hand, the purpose of the provisions of Article 35 of the Constitution is to mainly guarantee that the compulsory measures taken in criminal procedures should be under prior control of the judicial power, and it is inappropriate to judge that all compulsory measures made in certain procedures are naturally out of the range of the guarantee under the provisions of Article 35 only because such procedures are not taken for the purpose of seeking criminal charges.

However, the inspections performed under this case pursuant to the Provisions were performed to fulfill the administrative purpose as described above, and were not for the purpose of seeking criminal charges and did not have general functions directly connected to acquisition and collection of materials for such a purpose. In addition, because customs inspection of international mail is widely performed in international society, the expectation of the senders’ or receivers’ privacy is fundamentally low for the contents of international mail, unlike with domestic mail; and because the party who is directly required to present mail is Japan Post Service Co., Ltd., who possesses mail at the time of the inspection, and the possession state of the sender or receiver is not directly or physically eliminated, the extent that their rights are limited is relatively low. Moreover, since it is recognized that customs inspection serves the greater public interest and is necessary to properly and quickly perform inspection of a vast amount of mail to determine whether to approve or refuse their export or import, it is not unreasonable to permit an inspection method to the extent necessary and appropriate to secure the functionality of the aforementioned purpose under specific situations without obtaining consent from the sender or receiver. According to the aforementioned finding of facts, it can be recognized that customs officers opened the Mail to confirm whether it contained any banned item to be imported, and because the suspicion that the content was a banned item became stronger as a result of visual confirmation of the content, they took a minimum amount of sample from the mail content and forwarded it to an examination section to identify it; it can be recognized that the Mail Inspection performed under this case was a necessary inspection task that was appropriate to fulfill the administrative purpose described above. It is construed that under these factual situations, customs officers were allowed, pursuant to the Provisions, to perform inspection of the Mail without a warrant issued by a judge and without the consent of the sender or receiver of the Mail. It is apparent that such interpretation does not contravene the purpose of Article 35 of the Constitution, judging from the purports of the precedents of this court (Supreme Court 1969 (A) 734, Judgment of Grand Bench on November 22, 1972, Keishu Vol.26, No.9, p.554; Supreme Court 1986 (Gyo-Tsu) 11, Judgment of Grand Bench on July 1, 1992, Minshu Vol.46, No.5, p.437).

(5) And because it is apparent from the finding of facts above that the Mail Inspection under this case was not performed as a means to achieve a criminal investigation or detection, the judgment of the first instance that admitted as evidence the stimulant drug contained in the Mail under this case, which was collected by the Mail Inspection, and the expert opinion related thereof and judgment of the prior instance that supported the judgment of the first instance were justifiable, with no basis for the arguments of the defense counsel.



2. Regarding the additional argument of the violation of court precedents in the statement of reason for final appeal submitted by the defense counsel, it cited precedents whose situation was different from that in this case, and thus, the citation is not appropriate, while other arguments merely argued violation of law or error in fact and cannot be regarded as a reason for final appeal under Article 405 of the Code of Criminal Procedure.



Accordingly, the judgment is unanimously rendered as described in the main text pursuant to Article 408 and the proviso in paragraph (1) of Article 181 of the Code of Criminal Procedure and Article 21 of the Criminal Code.
Justice OTANI Takehiko

Justice OKABE Kiyoko

Justice OHASHI Masaharu

Justice KIUCHI Michiyoshi

Justice YAMASAKI Toshimitsu
(This translation is provisional and subject to revision.)