2018.07.03

2018 (Shi) 170

Keishu Vol 72, No. 3

Decision on Articles 299-4 and 299-5 of the Code of Criminal Procedure and the first sentence of paragraph (2) of Article 37 of the Constitution

Case of special appeal against the decision to dismiss an immediate appeal against a ruling and decision on public prosecutor’s measure related to disclosure of name, etc. of witness, etc.

Decision of the Second Petty bench, dismissed

Osaka High Court, Decision of March 22, 2018

Articles 299-4 and 299-5 of the Code of Criminal Procedure do not violate the first sentence of paragraph (2) of Article 37 of the Constitution.

Article 37, paragraph (2) of the Constitution and Articles 299-4 and 299-5 of the Code of Criminal Procedure



the Constitution

Article 37, paragraph (2)

He shall be permitted full opportunity to examine all witnesses, and he shall have the right of compulsory process for obtaining witnesses on his behalf at public expense.

Code of Criminal Procedure

(Measures to Protect Crime Victims, etc. and Witnesses)

Article 299-4 (1) In cases where the public prosecutor is required to give an opportunity to know the name and address of a witness, expert witness, interpreter or translator pursuant to the provision of paragraph (1) of Article 299 and where the public prosecutor deems that there is a risk of physical or property harm or intimidation or bafflement to the witness, expert witness, interpreter or translator or his/her relatives, the public prosecutor may give the counsel an opportunity to know such name and address, either on condition that the counsel not let the accused know such name or address or by designating the time or method of letting the accused know; provided, however, that this shall not apply when the public prosecutor’s measure makes it impossible to check whether or not the witness, expert witness, interpreter or translator, on the one hand, and the accused and other persons involved, on the other, have any interest with each other that would help evaluation of the probative value of statements of the witness, expert witness, interpreter or translator or when there is otherwise a risk of being substantially detrimental to the defense of the accused.

(2) In the case of the main clause of the preceding paragraph, when the public prosecutor considers it unlikely that the measures permitted under the main clause of the said paragraph will be able to prevent the actions set forth in the main clause of the said paragraph (including cases where the accused has no counsel), the public prosecutor may refrain from giving the accused and his/her counsel an opportunity to know the name or address of the relevant witness, expert witness, interpreter or translator, unless such refrainment makes it impossible to check whether or not the witness, expert witness, interpreter or translator, on the one hand, and the accused and other persons involved, on the other, have any interest with each other that would help evaluation of the probative value of statements of the witness, expert witness, interpreter or translator, or unless there is otherwise a risk of being substantially detrimental to the defense of the accused. In such case, the public prosecutor shall give the accused or his/her counsel an opportunity to know an alias or contact details instead of the name or address, respectively.

(3) In cases where the public prosecutor is required to give an opportunity to inspect documentary or material evidence pursuant to the provision of paragraph (1) of Article 299 and where the public prosecutor deems that there is a risk of physical or property harm, intimidation or bafflement to a person (i) whose name or address appears on or is recorded in the documentary or material evidence and whose examination as a witness, expert witness, interpreter or translator is requested by the public prosecutor or (ii) whose statements have been recorded in a recorded statement document, etc. (hereinafter such person is referred to as the “Public Prosecutor-Requested Witness, etc.” in this paragraph and the following paragraph) or to relatives of such Public Prosecutor-Requested Witness, etc., the public prosecutor may give the counsel an opportunity to inspect the documentary or material evidence, either on condition that the counsel not let the accused know the name or address of such Public Prosecutor-Requested Witness, etc. or by designating the time or method of letting the accused know; provided, however, that this shall not apply when the public prosecutor’s measure makes it impossible to check whether or not the Public Prosecutor-Requested Witness, etc., on the one hand, and the accused and other persons involved, on the other, have any interest with each other that would help evaluation of the probative value of statements of the Public Prosecutor-Requested Witness, etc. or when there is otherwise a risk of being substantially detrimental to the defense of the accused.

(4) In the case of the main clause of the preceding paragraph, when the public prosecutor considers it unlikely that the measures permitted under the main clause of the said paragraph will be able to prevent the actions set forth in the main clause of the said paragraph (including cases where the accused has no counsel), the public prosecutor may refrain from giving the accused and his/her counsel an opportunity to inspect such portions of the relevant documentary or material evidence as the name or address of the relevant Public Prosecutor-Requested Witness, etc. appears or is recorded, unless such refrainment makes it impossible to check whether or not the Public Prosecutor-Requested Witness, etc., on the one hand, and the accused and other persons involved, on the other, have any interest with each other that would help evaluation of the probative value of statements of the Public Prosecutor-Requested Witness, etc., or unless there is otherwise a risk of being substantially detrimental to the defense of the accused. In such case, the public prosecutor shall give the accused or his/her counsel an opportunity to know an alias or contact details instead of the name or address, respectively.

(5) When the public prosecutor has implemented any of the measures permitted under the preceding four paragraphs, the public prosecutor shall promptly notify the court thereof.

(Revocation of Measures)

Article 299-5 (1) In cases where the public prosecutor has implemented any of the measures permitted under the provisions of paragraphs (1) through (4) of the preceding Article and where the court finds that the measure implemented by the public prosecutor falls under any of the following items, the court shall, at the request of the accused or his/her counsel, revoke all or part of such measure by a ruling:

(i) In cases where there is no risk of physical or property harm, intimidation or bafflement to the person intended to be protected by such measure or his/her relatives;

(ii) In cases where such measure makes it impossible to check whether or not the person intended to be protected by the measure, on the one hand, and the accused and other persons involved, on the other, have any interest with each other that would help evaluation of the probative value of statements of the person intended to be protected by the measure, or there is otherwise a risk of being substantially detrimental to the defense of the accused; or

(iii) In cases where such measure has been implemented by the public prosecutor pursuant to the provision of paragraph (2) or (4) of the preceding Article and where the measures permitted under the main clause of paragraph (1) or that of paragraph (3) of the said Article are able to prevent the actions set forth in item (i).

(2) In cases where the court revokes all or part of the measure implemented by the public prosecutor on the grounds that the court finds that such measure falls under item (ii) or (iii) of the preceding paragraph and where the court finds a risk of any of the actions set forth in item (i) of the said paragraph, the court may either impose on the counsel the condition that the counsel not let the accused know the name or address of the person intended to be protected by such measure or designate the time or method of letting the accused know; provided, however, that this shall not apply when imposing such condition or designating such time or method makes it impossible to check whether or not the person intended to be protected by such measure, on the one hand, and the accused and other persons involved, on the other, have any interest with each other that would help evaluation of the probative value of statements of such person or when there is otherwise a risk of being substantially detrimental to the defense of the accused.

(3) When the court intends to make a ruling on the request mentioned in paragraph (1), the court shall hear the public prosecutor’s opinion.

(4) An immediate appeal may be filed against the ruling (including a decision to impose a condition(s) or to designate the time or method pursuant to the provision of paragraph (2)) made on the request mentioned in paragraph (1).

The appeal is dismissed.

1. The allegation made in the statement of reasons for the appeal that Articles 299-4 and 299-5 of the Code of Criminal Procedure violate the first sentence of paragraph (2) of Article 37 of the Constitution

(1) Article 299-4 of the Code of Criminal Procedure provides, among others, that in cases where the public prosecutor requests examination of a witness, expert witness, interpreter or translator (hereinafter referred to as a “Witness, etc.”) and is required to give the opponent an opportunity to know the name and address of the Witness, etc., and where there is a risk of harm, etc. to the Witness or his/her relatives, the public prosecutor may, unless there is a risk of being substantially detrimental to the defense of the accused: (i) implement a measure such as giving the accused’s counsel an opportunity to know the name and address of the Witness, etc. on condition that the counsel not let the accused know the name and address of the Witness, etc. (paragraph (1); hereinafter referred to as a “Condition Imposing Measure”); and (ii) implement a measure of giving the accused and his/her counsel an opportunity to know an alias and contact details, instead of the name and address, of the Witness, etc. without giving them an opportunity to know the name and address of the Witness, if it is likely that a Condition Imposing Measure will not be able to prevent the potential harm, etc. (paragraph (2); hereinafter referred to as an “Alternative Disclosing Measure”).

(2) Article 299-5 of the Code of Criminal Procedure provides, among others, that: (i) the accused or his/her counsel may, if dissatisfied with the measure implemented by the public prosecutor, request a ruling from the court (paragraph (1)); (ii) the court must hear the public prosecutor’s opinion before making a decision on such request for a ruling (paragraph (3)); and (iii) an immediate appeal may be filed against the court’s ruling (paragraph (4)).

(3) It is understood that Condition Imposing Measure and Alternative Disclosing Measure have been created with the intention of realizing more productive trial proceedings by preventing harm, etc. to and ensuring the safety of the Witness, etc, and reducing the burden on the Witness, etc. of making statements at trial proceedings, since in some cases, if there is a risk of harm, etc. to the Witness, etc. or his/her relatives, it is difficult to ensure the safety of the Witness, etc. and to reduce the burden on the Witness, etc. of making statements at trial proceedings by such measure as giving the accused’s counsel an opportunity to know the name and address of the Witness, etc. while requesting that certain information be protected from being known to the accused and others. It is fair to say that, of the two types of measures, Alternative Disclosing Measure may eliminate the risk of being substantially detrimental to the defense of the accused in some cases, namely if the public prosecutor’s not giving the name or address of the Witness, etc. to the accused and his/her counsel will not immediately result in disadvantage for the defense of the accused, because the accused and his/her counsel are able to evaluate in advance the expected probative value of statements of the Witness, etc. by checking whether or not the Witness, etc., on the one hand, and the accused and other persons involved, on the other, have any interest with each other, through being given an opportunity to know an alternative name or alternative contact details of the Witness, etc. and to inspect recorded statement documents of the Witness, etc. in the event of the public prosecutor’s request for examination thereof, among other measures.

(4) However, the public prosecutor may take neither Condition Imposing Measure nor Alternative Disclosing Measure if there is a risk of being substantially detrimental to the defense of the accused. In addition, the public prosecutor may take an Alternative Disclosing Measure only if a Condition Imposing Measure is unlikely to be able to prevent the potential harm, etc. In response to the accused’s or his/her counsel’s request for a ruling, the court must revoke, by a decision, all or part of the measure implemented by the public prosecutor: (i) in cases where the public prosecutor takes a Condition Imposing Measure or Alternative Disclosing Measure, if (a) there is no risk of harm, etc. or (b) there is a risk of being substantially detrimental to the defense of the accused or (ii) in cases where the public prosecutor takes an Alternative Disclosing Measure if (a) a Condition Imposing Measure is sufficient to prevent potential harm, etc. It can be said, if a request for a ruling is made, the public prosecutor must, in the court’s hearing of the public prosecutor’s opinion, clarify that the case does not fall under any of the items of paragraph (1) of Article 299-5 of the Code of Criminal Procedure, and if necessary, the court may take such actions as further hearing the accused’s or his/her counsel’s assertions. An immediate appeal may be filed against the court’s decision. In light of these circumstances, Articles 299-4 and 299-5 of the Code of Criminal Procedure do not infringe the accused’s right to examine witnesses and do not violate the first sentence of paragraph (2) of Article 37 of the Constitution.

(5) The above understanding is evidently correct, in light of the spirit of the Court’s judicial precedents (Supreme Court, 1948 (Re) 833, judgment of the Grand bench of May 18, 1949, Keishu Vol. 3, No. 6, at 789; Supreme Court, 1948 (Re) 1069, judgment of the Grand bench of September 27, 1950, Keishu Vol. 4, No. 9, p. 1774; Supreme Court, 1951 (A) 2357, judgment of the Grand bench of April 9, 1952, Keishu Vol. 6, No. 4, at 584).

2. The remaining allegations

As for the allegation that Article 299-5 of the Code of Criminal Procedure violates Article 37, paragraph (1) of the Constitution, its assumption does not hold, since Article 299-5 of the Code of Criminal Procedure does not cause the judge(s) of the court in charge of the case to prejudge the pending case under public prosecution (see Supreme Court, 1949 New (Re) 104, judgment of the Grand bench of April 12, 1950, Keishu Vol., 4, No. 4, at 535), as alleged in the statement of reasons for appeal. All other allegations are mere allegations of legal violations and do not constitute any of the grounds for final appeal listed in Article 405 of the Code of Criminal Procedure.

3. Accordingly, the Court unanimously decides as set forth in the main text in accordance with Article 434 and 426, paragraph (1) of the Code of Criminal Procedure.

Justice YAMAMOTO Tsuneyuki

Justice ONIMARU Kaoru

Justice KANNO Hiroyuki