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1990 (Shi) 74

1990.07.09
1990 (Shi) 74
Keishu Vol. 44, No. 5
Decision concerning the case in which the Court ruled that the seizure enforced by the investigation authority on the videotapes created through news gathering activities by the news organization does not violate Article 21 of the Constitution
Case of special appeal to the Supreme Court against the ruling made by a district court to dismiss a quasi-appeal on the case charged against [A] for violation of the Act on Punishment of Physical Violence and Others and for an injury
Decision of the Second Petty Bench, dismissed
Tokyo District Court, Decision of June 13, 1990
The seizure enforced by the investigation authority on the videotapes created through news gathering activities by the news organization does not violate Article 21 of the Constitution, given the following facts mentioned in the judgment: the videotapes have significant probative value in giving a full picture of the case charged for malicious crimes that cannot be taken lightly; on the other hand, the videotapes were created by shooting and recording the scene of the crimes with the cooperation of the suspect and his accomplices, the edited videotapes were already broadcasted, and the suspect and his accomplices had agreed to the broadcasting of the videotapes.
Articles 21 and 35 of the Constitution, and Article 218, paragraphs (1) and (3) of the Code of Criminal Procedure



Constitution



Article 21

(1) Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.

(2) No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.



Article 35

(1) 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.

(2) Each search or seizure shall be made upon separate warrant issued by a competent judicial officer.



Code of Criminal Procedure



Article 218, paragraphs (1) and (3)

(1) A public prosecutor, a public prosecutor's assistant officer or a judicial police official may, if necessary for the investigation of an offense, conduct a search, seizure or inspection upon a warrant issued by a judge. In such cases, the inspection and examination of a person shall be conducted upon a warrant for physical examination.

(3) The warrant set forth in paragraph (1) shall be issued upon the request of a public prosecutor, a public prosecutor's assistant officer or a judicial police officer.
The appeal is dismissed.
I. Concerning Reason for Appeal I

First, the defense counsel argues that the seizure of the videotapes, which was enforced by the judicial police personnel of the Fourth Criminal Investigation Section of the Criminal Investigation Bureau of the Tokyo Metropolitan Police Department dispatched to the Takanawa Police Station of the Tokyo Metropolitan Police Department, at the appellant's office on May 16, 1990, with regard to the case charged against [A] for an injury and violation of the Act on Punishment of Physical Violence and Others, violates Article 21 of the Constitution.

The Court examines this argument. Media freedom of news reporting is guaranteed under Article 21 of the Constitution, which provides for freedom of expression, and freedom of news gathering for the purpose of news reporting should also be fully respected in light of the purport of Article 21 of the Constitution. However, freedom of news gathering cannot absolutely escape from any restrictions, but it is restricted to a certain degree if there are constitutional requirements such as realizing a fair trial. These points are indicated in the precedent decision of the Supreme Court on the [B] Station Case (1969 (Shi) No. 68, the decision of the Grand Bench of the Supreme Court of November 26, 1969, Besshu Vol. 23, No. 11, at 1490). According to the purport of this precedent, it is clear that: freedom of news gathering may also be restricted to a certain degree if there is a need for the proper and prompt conduct of [an] investigation, activity that is essential to realize a fair criminal trial; and when determining whether or not a seizure should be permitted in the case where a seizure is intended for the news gathering results obtained by a news organization due to such need, it is necessary to compare the nature, substance, and seriousness of the crime to be investigated, the value as evidence of the news gathering results to be seized, and the necessity of the seizure for accomplishing proper and prompt investigation, on one hand, and the extent to which the seizure of the news gathering results as evidence would impair media freedom of news reporting and its impact on freedom of news gathering in the future, and other various circumstances, on the other hand (see 1988 (Shi) No. 116, the decision of the Second Petty Bench of the Supreme Court of January 30, 1989, Keishu Vol. 43, No. 1, at 19).

The Court examines the case from this viewpoint. The seizure disputed in this case (hereinafter referred to as the "Seizure") was enforced in the course of the investigation of the case charged for malicious crimes of an injury and violation of the Act on Punishment of Physical Violence and Others that cannot be taken lightly, in which the suspect, who is the head of an organized crime group, in conspiracy with the group members, at the group's office, inflicted upon the victim an injury that would require about one month of medical treatment for recovery in order to collect a debt from the victim, and intimidated the victim jointly with the group members by demonstrating the group's power in front of the victim's residence and also intimidated the victim at the group's office by demonstrating the group's power. Moreover, the Seizure was enforced on the videotapes in question (Items No. 15 to 18 in the list attached to the decision of prior instance; hereinafter referred to as the "Videotapes") which were presumed to record the circumstances of the crimes mentioned above, because it was necessary to do so in order to reveal the facts, given the situation in which it was difficult to identify the important aspects of the injury case due to the inadequate statements of the suspect and his accomplices and the inconsistency of the statements of other persons concerned. The Videotapes are found to have significant probative value in giving a full picture of the case and determining whether the charged crimes can be established. On the other hand, although all of the Videotapes are so-called mother tapes, the appellant, before the Seizure was enforced, had already finished editing for broadcasting and broadcasted the edited tapes, and hence, the Seizure would not have caused the appellant to suffer any disadvantage by making it impossible to broadcast the Videotapes and thus depriving the appellant of the opportunity to report news. Furthermore, the shooting of videos on the Videotapes had been carried out with the cooperation of the head of the organized crime group and its members, and thus, these persons who cooperated in the appellant's news gathering activities had agreed to the broadcasting of the Videotapes. Therefore, the appellant, which is a news organization, has little interest in protecting the secrecy of the identity of these cooperators for their sakes. What is more, although the film crew actually saw multiple members of the organized crime group repeatedly doing violence after the shooting began, they continued shooting, and thus, they can be deemed to have shot and recorded the scene of the crimes with the cooperation of the criminals. It must be said that there is doubt as to whether it is necessary to protect the news gathering activities carried out in such manner as a kind of freedom of news gathering for the purpose of news reporting. Assuming as such, even if the Seizure could make it difficult in the future for the media including the appellant to carry out news gathering activities by the same method as the method employed in this case, such disadvantage is not particularly worth considering. Taking all these circumstances into consideration, it should be said that the Seizure was necessary for the proper and prompt conduct of investigation, and that the appellant must tolerate the disadvantages caused thereto.

In conclusion, the defense counsel's argument is groundless in light of the purport of the Supreme Court decision on the [B] Station Case, and the decision in prior instance to the same effect as that is justifiable.

Next, the defense counsel argues violation of a judicial precedent, but the decision in prior instance does not make a determination that is contrary to the cited judicial precedent, and hence, there is no basis for the defense counsel's argument.

II. Concerning Reason for Appeal II

By examining the case with its own authority, the Court finds that among the 29 seized videotapes, 24 videotapes (Items No. 1 to 11, 13, 14, and 19 to 29 in the list attached to the decision in prior instance) were returned to the appellant on May 30, 1990, and one videotape (Item No. 12 in the same list) was returned to the appellant on June 6, 1990, respectively. Accordingly, there is no interest in filing the part of the quasi-appeal for seeking the revocation of the Seizure which pertains to these returned objects, and the determination of the court of prior instance to the same effect as this is justifiable.

III. Accordingly, in accordance with Article 434 and Article 426, paragraph (1) of the Code of Criminal Procedure, the Court unanimously decides as set forth in the main text of the decision, except for the dissenting opinion of Justice OKUNO Hisayuki.

The dissenting opinion of Justice OKUNO Hisayuki is as follows.

I disagree with the conclusion of the majority opinion on Reason for Appeal I. Although I agreed with the majority opinion in the decision on the [C] Case (1988 (Shi) No. 116, the decision of the Second Petty Bench of the Supreme Court of January 30, 1989, Keishu Vol. 43, No. 1, at 19) in which the court ruled that the seizure of the news organization's videotapes was permissible, but I consider that the seizure disputed in this case is impermissible.

I make a comparison between the necessity of the seizure for accomplishing proper and prompt investigation and the extent to which the seizure would impair media freedom of news reporting and its impact on freedom of news gathering in the future, while considering the [C] Case against this case. The crime charged in the [C] Case was a serious bribery that widely attracted public attention, whereas the crimes charged in this case are malicious crimes that should not be taken lightly but are not as serious as the crime of the [C] Case. In addition, in the [C] Case, the seized videotapes were almost indispensable for proving the crime, whereas in this case, the organized crime group members admitted their crimes, though not clearly, there were eye witnesses, and the seized videotapes were needed due to the inconsistency between the statements of these persons and the statements of the victim, which means that the necessity of the videotapes as evidence is not as great as in the [C] Case. Hence, the benefit that can be obtained through the seizure in this case should be judged to be far smaller than that in the [C] Case. In the [C] Case, the person who was offered a bribe requested the news organization to shoot the videos in the videotapes for the purpose of securing evidence to bring an accusation of bribery, and the news organization carried out shooting as requested, and thus, the news organization can be described as having conducted investigation on behalf of police, whereas, in this case, the news organization shot videos in the videotapes exclusively for the purpose of news reporting, that is, making the real picture of the organized crime group known to the public. Thus, the benefit of protecting the news organization's position in this case is far greater than that in the [C] Case.

For the reasons stated above, the Seizure of the Videotapes argued by the counsel should be judged to be illegal.
Justice FUJISHIMA Akira

Justice KAGAWA Yasukazu

Justice OKUNO Hisayuki

Justice NAKAJIMA Toshijiro
(This translation is provisional and subject to revision.)