1990.10.17

1987 (Shi) 45

Keishu Vol. 44, No. 7

Decision concerning a special appeal under Article 18 of the Act on Emergency Measures for the Code of Criminal Procedure which is filed with regard to a request for a retrial, and whether or not Article 411, item (iii) of the Code of Criminal Procedure applies mutatis mutandis to such special appeal

Case of special appeal to the Supreme Court against the ruling made on the case of a request for a retrial to dismiss the request for a retrial

Decision of the First Petty Bench, dismissed

Hiroshima High Court, Decision of May 1, 1987

If a special appeal is filed with the Supreme Court under Article 18 of the Act on Emergency Measures for the Code of Criminal Procedure against a ruling made by a high court on a request for a retrial of a case in which a final and binding judgment of conviction was rendered under the Former Code of Criminal Procedure, Article 411, item (iii) of the Code of Criminal Procedure does not apply mutatis mutandis to such special appeal.

Article 411 of the Code of Criminal Procedure, Article 2 of the Act for Enforcement of the Code of Criminal Procedure, and Article 18 of the Act on Emergency Measures for the Code of Criminal Procedure upon the Enforcement of the Constitution of Japan



Code of Criminal Procedure

Article 411

Even in absence of grounds as prescribed in the items of Article 405, the final appellate court may render a judgment to reverse the judgment of the court of first or second instance, on any of the following grounds when it deems that not doing so would clearly be contrary to justice:

(i) There is a violation of laws and regulations which would have affected the judgment.

(ii) The degree of punishment is seriously unfair;

(iii) There is an erroneous finding of a material fact which would have affected the judgment.;

(iv) There are grounds to request a retrial;

(v) There was abolition or a change of punishment or a general pardon was granted after the judgment was rendered.



Act for Enforcement of the Code of Criminal Procedure

Article 2

Cases for which prosecution has been instituted before the New Code comes into effect continue to be governed by the Former Code and the Act on Emergency Measures even after the New Code comes into effect.



Act on Emergency Measures for the Code of Criminal Procedure upon the Enforcement of the Constitution of Japan

Article 18

(1) An appeal against a ruling or order against which an appeal may not be filed pursuant to the provisions of the Code of Criminal Procedure may be specially filed with the Supreme Court, only when the reason for the appeal is that the determination made in the ruling or order as to the constitutionality of a law, order, regulation or disposition is inappropriate.

(2) The period for filing the appeal referred to in the preceding paragraph is five days.

The appeal is dismissed.

I. Concerning the reasons for appeal stated by TODO Shinji and 22 other defense counsels (including those stated in the written motion for a special appeal and four supplementary documents for the reasons for special appeal), in which they argue concerning the procedure for filing an appeal against the decision in prior instance

The defense counsels argue that since a person filing a request for a retrial who was given a judgment of conviction under the former Code of Criminal Procedure was guaranteed an opportunity to undergo a trial again by filing an immediate appeal with the Former Supreme Court against a ruling made by the court of appeal to dismiss the request for a retrial, the relevant provisions of the Court Act, the Act on Emergency Measures for the Code of Criminal Procedure, and the Act for Enforcement of the Code of Criminal Procedure which deprive that person of such opportunity violate Articles 11, 13, 31, and 32, and Article 14, paragraph (1) of the Constitution.

However, the Constitution, except for Article 81, provides nothing particular about jurisdiction and the multi-level appeal system, and hence, it should be understood that the Constitution leaves it entirely to legislation to provide for the details of these matters. This has been repeatedly pointed out in the judicial precedents of this court (1947 (Re) No. 56, judgment of the Grand Bench of February 6, 1948, Keishu Vol. 2, No. 2, at 23; 1947 (Re) No. 43, judgment of the Grand Bench of March 10, 1948, Keishu Vol. 2, No. 3, at 175; 1947 (Re) No. 126, judgment of the Grand Bench of July 19, 1948, Keishu Vol. 2, No. 8, at 922; 1948 (Re) No. 167, judgment of the Grand Bench of July 19, 1948, Keishu Vol. 2, No. 8, at 952). These judicial precedents should not be interpreted as allowing the legislative body to establish provisions of law on jurisdiction and the multi-level appeal system arbitrarily but they should be interpreted as requiring, as a given, some reasonable grounds for these provisions. Article 7 of the Court Act limited the Supreme Court's jurisdiction to "final appeals" and "appeals against rulings specially provided for in codes of procedures." As a result, a special appeal under Article 18 of the Act on Emergency Measures for the Code of Criminal Procedure was the only means available for filing an appeal with the Supreme Court on a retrial case regarding a final and binding judgment of conviction rendered under the Former Code of Criminal Procedure. According to this Article, an appeal against a ruling or order may be filed with the Supreme Court "only when the reason for the appeal is that the determination made in the ruling or order as to the constitutionality of a law, order, regulation or disposition is inappropriate." All these provisions of laws were intended to enable the Supreme Court to fulfill its roles vested therein by the Constitution. When the current Code of Criminal Procedure subsequently came into effect, the Act for Enforcement of the Code of Criminal Procedure provided in Article 2 that "Cases for which prosecution has been instituted before the New Code comes into effect continue to be governed by the Former Code and the Act on Emergency Measures even after the New Code comes into effect," without providing for any particular exceptions for retrial cases. This is because it was considered inappropriate for retrial cases regarding cases adjudicated through the procedure prescribed in the Former Code of Criminal Procedure and the Act on Emergency Measures for the Code of Criminal Procedure under the system which allowed a higher court to conduct a trial anew, to be handled through the procedure prescribed in the current Code of Criminal Procedure, which has replaced that system with another system that basically allows a higher court to examine only the appropriateness of a judgment in prior instance. Thus, it cannot be said that there are no reasonable grounds for the relevant provisions of these laws. In that case, it is clear in light of the purports of the abovementioned judicial precedents of the Grand Bench of this court that the provisions of the Court Act, the Act on Emergency Measures for the Code of Criminal Procedure, and the Act for Enforcement of the Code of Criminal Procedure as challenged by the defense counsels do not violate Article 11, 13, 31, or 32 or Article 14, paragraph (1) of the Constitution. There is no basis for the defense counsels' argument.

Next, the defense counsels argue that Article 428, paragraph (2) and Article 411, item (iii) of the current Code of Criminal Procedure should apply mutatis mutandis to the request for a retrial disputed in this case. However, Article 2 of the Act for Enforcement of the Code of Criminal Procedure provides that except for cases that fall under Article 3 or Article 3-2 of the same Act, cases for which prosecution has been instituted before the New Code comes into effect are governed by the Former Code and the Act on Emergency Measures for the Code of Criminal Procedure. Therefore, only the Former Code of Criminal Procedure and the Act on Emergency Measures for the Code of Criminal Procedure are applicable to a request for a retrial of a case in which a final and binding judgment of conviction was rendered under the Former Conde of Criminal Procedure, like the one in this case, and Article 428, paragraph (2) and Article 411, item (iii) of the current Code of Criminal Procedure should be considered not to be applied mutatis mutandis to such request. This is clear in light of the purports of the judicial precedents of this court (1949 (Re) No. 232, judgment of the Grand Bench of July 19, 1950, Keishu Vol. 4, No. 8, at 1429; 1951 (Shi) No. 47, decision of the Grand Bench of June 10, 1953, Keishu Vol. 7, No. 6, at 1419; 1962 (Shi) No. 11, decision of the Grand Bench of October 30, 1962, Keishu Vol. 16, No. 10, at 1467; 1965 (Shi) No. 98, decision of the Grand Bench of July 5, 1967, Keishu Vol. 21, No. 6, at 764). There is no basis for the defense counsels' argument.

II. Concerning other reasons for appeal stated by the defense counsels

Among the defense counsels' arguments, the argument of violation of Article 36 and Article 38, paragraph (1) of the Constitution with regard to the confession by the accused is in effect an argument of mere violation of laws and regulations in which the defense counsels allege an omission to make a determination in the decision in prior instance and illegality of the examination of facts by the court of prior instance at its own authority, and all the rest, including the argument of violation of Articles 31 and 32 of the Constitution, are in effect arguments of mere violation of laws and regulations and erroneous finding of facts in which the defense counsels challenge the decision in prior instance ruling that the evidentiary documents and objects submitted by them cannot be regarded as "clear evidence" referred to in Article 485, item (vi) of the Former Code of Criminal Procedure, or allege an omission to make a determination in the decision in prior instance; and none of their arguments constitute a legitimate reason for appeal referred to in Article 18 of the Act on Emergency Measures for the Code of Criminal Procedure.

III. Accordingly, in accordance with Article 2 of the Act for Enforcement of the Code of Criminal Procedure and Article 466, paragraph (1) of the Former Code of Criminal Procedure, the Court unanimously decides as set forth in the main text of the decision.

Justice HASHIMOTO Shirohei

Justice TSUNODA Reijiro

Justice OUCHI Tsuneo

Justice YOTSUYA Iwao

Justice OHORI Seiichi