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2017 (Shi) 8

2017.01.16
2017 (Shi) 8
Keishu Vol. 71, No. 1
Decision on who to receive the service of a copy of a decision to revoke the giving of a suspended sentence under Article 34 of the Rules of Criminal Procedure in the context of a request for a revocation of the giving of the suspended sentence
Case of a special appeal against the ruling to dismiss immediate appeals against the ruling to revoke the giving of suspended sentences
Decision of the Second Petty Bench, revoked and remanded
Takamatsu High Court, Decisions of December 21, 2016
1. In the context of a request for a revocation of the giving of a suspended sentence, the persons to receive the service of a copy of a decision to revoke the giving of the suspended sentence under Article 34 of the Rules of Criminal Procedure are the public prosecutor and the person with respect to whom such request was made.

2. In the context of a request for a revocation of the giving of a suspended sentence, if a copy of a decision to revoke the giving of the suspended sentence is served on the defense counsel appointed by the person with respect to whom such request was made, such service does not have the same legal effect as if it had been made on the person with respect to whom such request was made.
(For 1 and 2) Article 26-2, item (ii) and Article 26-3 of the Penal Code, Article 349-2, paragraph (1) of the Code of Criminal Procedure, and Article 34 and Article 62, paragraph (1) of the Rules of Criminal Procedure



the Penal Code

Article 26-2 Suspension of execution of the sentence may be revoked in the following cases:

(ii) When a person placed under probation in accordance with the provisions of paragraph (1) of Article 25-2 fails to observe any of the conditions of the probation and the circumstances related to such failure are serious;

Article 26-3 When a suspension of execution of sentence to imprisonment without work or a greater punishment is revoked pursuant to the provision of the preceding two Articles, the concurrent suspension of execution of another sentence to imprisonment without work or a greater punishment shall also be revoked.

Code of Criminal Procedure

Article 349-2

(1) When the request prescribed in the preceding Article has been made, a court shall, after hearing the opinion of the person who has been rendered suspension of execution or his/her representative, make a decision.

Rules of Criminal Procedure

Article 34 The announcement of a judicial decision shall be made by pronouncement of said judicial decision if in open court, and by service of a copy of the written judicial decision in any other case; provided, however, that this shall not apply if there are special provisions providing otherwise.

Article 62 (1) The accused or his/her agent, defense counsel, or assistant in court shall notify the court of his/her residence or office in writing in order to receive service of documents. If said person does not have a residence or office in the district of the court, said person shall appoint a person who has a residence or office in said district as a designated service recipient, and shall notify the court thereof by a document jointly signed by said person and the person so appointed.
The decisions of prior instance are revoked.

The cases are remanded to the Takamatsu High Court.
The intentions of the appeals from the ruling of the present case, including the points which allegedly constitute violations of the Constitution, are mere claims of violations of laws in substance and do not constitute grounds for filing an appeal from a ruling as referred to in Article 433 of the Code of Criminal Procedure.

However, the Court’s investigation conducted ex officio has revealed that the decisions of prior instance should inevitably be revoked.



1. The decisions and records of the first instance accepted by the decision of prior instance reveal the following facts:

(1) On January 28, 2014, the appellant was sentenced to two years in prison with a three-year suspension for a theft charge, and this judgment became final and binding on February 13, 2014. (2) On May 14, 2015, the appellant was sentenced to one year in prison with a four-year suspension and probation for an attempted theft charge, and this judgment became final and binding on May 29, 2015. (3) During the period from June 18, 2016 to July 23, 2016, the appellant committed three thefts, for which the appellant received, on November 21, 2016, a conviction which sentenced the appellant to six months in prison. The appellant has filed an appeal against this conviction and the appeal trial is pending.

The public prosecutor requested revocations of the giving of the suspended sentences described in (1) and (2) above. The court of first instance rendered the decisions of the first instance, each of which accepting the same facts as found with respect to the three thefts mentioned in (3) above, and finding that the circumstances of the crimes were vicious as the appellant failed to comply with the requirements to be complied with by a person placed on probation, with one decision revoking the giving of the suspended sentence described in (2) above under Article 26-2, item (ii) of the Penal Code and Article 349-2, paragraph (1) of the Code of Criminal Procedure, and the other decision revoking the giving of the suspended sentence described in (1) above under Article 26-3 of the Penal Code and Article 349-2, paragraph (1) of the Code of Criminal Procedure. However, while the court of first instance served a copy of each of the decisions of the first instance on the public prosecutor and the chief defense counsel out of the two defense counsels appointed by the appellant, the court failed to serve the same on the appellant.

The appellant reappointed the two defense counsels mentioned above as the appellant’s defense counsels for the prior instance and filed an immediate appeal against each of the rulings of the first instance. However, the court of prior instance dismissed both of the immediate appeals.

Neither of the two defense counsels mentioned above had not been appointed as a designated service recipient under Article 62, paragraph (1) of the Rules of Criminal Procedure.

2. Article 34 of the Rules of Criminal Procedure provides, “The announcement of a judicial decision shall be made by pronouncement of said judicial decision if in open court, and by service of a copy of the written judicial decision in any other case; provided, however, that this shall not apply if there are special provisions providing otherwise.” In the context of a request for a revocation of the giving of a suspended sentence, the persons to receive the service of a copy of a decision to revoke the giving of the suspended sentence under the same article (Article 349-2, paragraph (1) of the Code of Criminal Procedure) are the public prosecutor and the person who received the suspended sentence (i.e., the person with respect to whom the request was made), and it is reasonable to understand that if such copy is served on the defense counsel appointed by the person with respect to whom the request was made, such service does not have the same legal effect as if it had been made on the person with respect to whom such request was made.

In the present case, then, since the court of first instance served a copy of each of the decisions of the first instance on the defense counsel appointed by the appellant, i.e., the person with respect to whom the request for a revocation of each of the suspended sentences in question had been made, and not on the appellant, it is inevitable to conclude that the decisions of the first instance contain a violation of law in that the decisions erred in the interpretation and application of Article 34 of the Rules of Criminal Procedure to the procedure for announcing the decisions of the first instance, and that the decisions of prior instance, which dismissed the immediate appeals without correcting the aforementioned violation, contain the same violation of law. The Court considers that these errors have affected the decisions of prior instance, and that it would be extremely unjust if the decisions of prior instance were not revoked.

Accordingly, since it is reasonable, under Article 434 and Article 426, paragraph (2) of the Code of Criminal Procedure as applied mutatis mutandis pursuant to Article 411, item (i) of the same code, to revoke the decisions of prior instance and to have a decision made on each of the immediate appeals after a copy of each of the decisions of the first instance is served on the appellant, the Court remands the cases to the court of prior instance, i.e., the Takamatsu High Court, and unanimously decides as set forth in the main text.
Justice ONIMARU Kaoru

Justice ONUKI Yoshinobu

Justice YAMAMOTO Tsuneyuki

Justice KANNO Hiroyuki
(This translation is provisional and subject to revision.)