1969.12.24

1965 (A) 1187

Keishu Vol. 23, No. 12, at 162

Judgment concerning the constitutionality of Kyoto City Ordinance No. 10 of 1954 on Assembly, Marching, and Demonstration

Case to be brought for obstruction of performance of official duties and bodily injury

Judgment of the Grand Bench, dismissed

Osaka High Court

1. Kyoto City Ordinance No. 10 of 1954 on Assembly, Marching, and Demonstration is not in violation of Article 21 of the Constitution.

2. Any person has the right not to have his/her face or appearance photographed without consent or good reason, and if a police officer, without good reason, has photographed a citizen's face or appearance, such an act is in violation of the purport of Article 13 of the Constitution and therefore it is unallowable.

3. If a police officer has photographed the face or appearance of a citizen in circumstances in which a crime is being committed or it does not seem long since a crime was committed, there is an urgent need for preservation of evidence, and the photographs have been taken by an appropriate method within a generally allowable limit, the police officer's act is not in violation of Article 13 or 35 of the Constitution, even if the photographs have been taken without the citizen's consent or a warrant issued by judge.

(Concerning 1)Article 21 of the Constitution, Articles 2 and 6 of the Ordinance on Assembly, Marching, and Demonstration (Kyoto City Ordinance No. 10 of 1954),
(Concerning 2 and 3) Article 13 of the Constitution
(Concerning 3) Article 35 of the Constitution, Articles 218(2) and 220 of the Code of Criminal Procedure, Article 2(1) of the Police Law

Article 21 of the Constitution
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 2 of the Ordinance on Assembly, Marching, and Demonstration (Kyoto City Ordinance No. 10 of 1954)
Persons who intend to hold an assembly or marching on the road or at any other outdoor place in public (such assembly shall hereinafter be refereed to as "outdoor assembly"), or hold a demonstration at any place shall obtain permission from the public safety commission, unless such action falls under any of the following.
(1) Excursion, school trip, gymnastics or sports carried out by students, pupils, etc.
(2) Ordinary ceremonies for marriage, funeral, and other customary events.
(3) Other cases as provided by the public safety commission.

Article 6 of the Ordinance on Assembly, Marching, and Demonstration (Kyoto City Ordinance No. 10 of 1954)
1. Upon receiving an application for permission under Article 4, the public safety commission shall grant permission except in cases where it is obvious that the implementation of the outdoor assembly, marching or demonstration is likely to cause a direct threat to the life, person or property of the public. However, necessary conditions concerning the following matters may be imposed.
(1) Prevention of obstruction of performance of duties of government offices.
(2) Prevention of danger through regulation of the carrying of firearm, weapon or any other dangerous articles.
(3) Maintenance of traffic order.
(4) Maintenance of order of the assembly, marching or demonstration.
(5) Maintenance of peace at night.
(6) Change of the route, place or date of the action when it is inevitable for preventing a direct threat to the life, person or property of the public.
2. Having granted permission under the preceding paragraph, the public safety commission shall fill in the fact on one copy of the application form, and unless there are special circumstances, shall provide the copy, at least 24 hours before the date on which the outdoor assembly, march or demonstration is scheduled, for the person who organizes the action or person in charge of liaison.
3. Notwithstanding the provisions of the preceding two paragraphs, the public safety commission may revoke permission or change the conditions thereon if it becomes obvious that there is urgent need to prevent a direct threat to the life, person or property of the public.
4. Before turning down an application for permission under Paragraph 1, the public safety commission shall, in principle, at least 24 hours before the scheduled date of action, request the person who organizes the action to appear before the commission and shall hear the person's opinion. However, this shall not apply when the person fails to make appearance.
5. If the public safety commission has turned down an application for permission in accordance with the preceding paragraph or revoked permission in accordance with Paragraph 3, it shall immediately notify the municipal assembly of the fact, with detailed reasons.

Article 13 of the Constitution
All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.

Article 35 of the Constitution
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 a warrant issued for an 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 a separate warrant issued by a competent judicial officer.

Article 218(2) of the Code of Criminal Procedure
In the case where a suspect is under physical restraint, his fingerprints or footprints may be taken, his height or weight measured, or his photographs taken without the warrant mentioned in the preceding paragraph, provided that he cannot be stripped naked.

Article 220 of the Code of Criminal Procedure
1. When a public prosecutor, public prosecutor's assistant officer or a judicial police officer arrests a suspect in accordance with Article 199 or he arrests a flagrant offender, he may, if necessary, take the following measures. The same shall apply, if necessary, to the case where a suspect is arrested in accordance with Article 210:
(1) To enter the dwelling of a person, or the premises, buildings or vessels guarded by persons, and search for the suspect;
(2) To seize, search or inspect on the spot of the arrest.
2. The articles seized shall be returned immediately if a warrant of arrest cannot be obtained in the case mentioned in the latter part of the preceding paragraph.
3. For the measures mentioned in the first paragraph, a warrant need not be obtained.
4. The provisions of Paragraph 1, Subparagraph 2 and the preceding paragraph shall apply mutatis mutandis to the case where a public prosecutor's assistant officer or a judicial police officer executes capias or a warrant of detention. The provisions of Paragraph 1, Subparagraph 1 shall also apply mutatis mutandis to the case where the capias or warrant of detention issued against a suspect is executed.

Article 2(1) of the Police Law
The police shall have the duty to protect citizens' lives, persons and property, prevent, suppress, and investigate crimes, arrest suspects, regulate traffic, and maintain public safety and order.

The jokoku appeal shall be dismissed.
The defendant shall bear the whole cost of the lawsuit of this instance.

Concerning Ground 2 for the jokoku appeal argued by the defendant and Ground 1 for the jokoku appeal argued by the attorney AOYAGI Takao, alleging that the Kyoto City Ordinance No. 10 of 1954 on Assembly, Marching, and Demonstration (hereinafter referred to as the "Ordinance") is in violation of Article 21 of the Constitution
As argued by the defendant and the attorney, the Ordinance provides that persons who intend to hold an assembly or marching on the road or at any other outdoor place in public or hold a demonstration at any place shall obtain permission from the public safety commission, with the aim of regulating such collective actions in advance. However, while the Ordinance requires the permission of the public safety commission for collective actions (Article 2), it also provides that the public safety commission shall grant permission except in cases where it is obvious that the implementation of collective actions is likely to cause a direct threat to the life, person or property of the public (Article 6). Thus, the Ordinance obliges the public safety commission to grant permission, by strictly limiting the cases where it may turn down an application for permission.
That an Ordinance that includes such regulation as explained above is not in violation of Article 21 of the Constitution is obvious from the judgment of the Grand Bench of the Supreme Court (1960 (A) No. 112, judgment of July 20, 1960, Keishu Vol. 14, No. 9, 1243) which addressed another ordinance of almost the same contents, Tokyo Metropolitan Ordinance No. 44 of 1950 on Assembly, Marching, and Demonstration. There is no need to change that judicial precedent, and the argument of the defendant and the attorney is groundless.

Concerning Ground 1 for the jokoku appeal argued by the attorney, alleging that the Ordinance is in violation of Article 31 of the Constitution
The attorney argues as follows. Under the Ordinance, necessary conditions may be imposed upon granting permission (Article 6). If the persons who organize, direct or participate in the action have violated or are likely to violate the conditions, the Chief of the Prefectural Police Headquarters may give a warning to them and restrain their action (Article 8), and may also punish those who have violated the conditions (Article 9). The Ordinance leaves it to the police's discretion to interpret the contents of the conditions and to determine whether or not the conditions are violated, and in this respect, it is in violation of Article 31 of the Constitution that provides for due process. The Ordinance allows the regulatory authorities to lay down conditions at their discretion, and also in this respect, it is in violation of the said article that prohibits blank criminal law.
However, the proviso of Article 6(1) of the Ordinance defines the scope of conditions that may be imposed by the public safety commission, and only those who, after specific conditions have been laid down within this scope and notified to the person who organizes the action or who is in charge of liaison (Article 6(2) of the Ordinance and Article 5 of the Enforcement Regulations for the Ordinance), have violated such specific conditions shall be subject to a warning, restraint or penalties by the Chief of the Prefectural Police Headquarters. Thus, the Ordinance does not allow the regulatory authorities to lay down conditions at their will, and therefore it is inappropriate to challenge the Ordinance, alleging that it fails to provide, or does not clearly provide, for constituent elements of the violation of this provision. Consequently, the argument of unconstitutionality lacks a premise, and it cannot be regarded as a legal ground for jokoku appeal.

Concerning Ground 3(4) for the jokoku appeal argued by the defendant
The defendant argues as follows. The court of the second instance judged the police officer's act of photographing the defendant against his will and without a warrant issued by judge to be legal. Such judgment of the second instance is in violation of Article 13 of the Constitution that guarantees the right of portrait or the right not to be photographed without consent, and it is also in violation of Article 35 of the Constitution that provides for the principle of warrant.
Certainly, Article 13 of the Constitution provides as follows: "All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs." This provision can be construed to mean that citizens' freedom in private life should be protected against the exercise of state power including police power. As part of such citizens' freedom in private life, any person has the right not to have his face or appearance photographed without consent or good reason.
Apart from whether or not such right can be referred to as right of portrait, it must be said at least that if a police officer, without good reason, has photographed the face or appearance of a citizen, such an act should be regarded as being in violation of the purport of Article 13 of the Constitution and therefore it is unallowable. However, it is obvious in light of the provision of the said article that such citizens' right is not protected without limitation against the exercise of state power, but it should be reasonably limited if necessary for public welfare. Investigation of crime is one of the state functions authorized to the police for public welfare, and the police have a duty to perform this function (see Article 2(1) of the Police Law). Therefore, even in cases where photographs taken by a police officer due to the necessity for investigation of crime show not only the appearance of the criminal but also that of an irrelevant third party, the police officer's act may be regarded as allowable in certain cases.
With respect to the allowable limit, it should be construed that, in addition to cases as provided in Article 218(2) of the Code of Criminal Procedure which allows photographing of a suspect under physical restraint, a police officer is allowed to photograph the appearance of a citizen even without his consent or a warrant issued by judge in the circumstance where a crime is being committed or it does not seem long since a crime was committed, there is urgent need for preservation of evidence, and the photographs have been taken by an appropriate method within a generally allowable limit. In such circumstances, even if the photographs taken by the police officer show not only the face or appearance of the criminal but also that of an irrelevant third party who was near the criminal or the article photographed and therefore could not be separated therefrom in the photographs, the police officer's act is not in violation of Article 13 or 35 of the Constitution.
According to the judgment of the second instance and the facts found by the judgment of the first instance, which was maintained by the former, in the demonstration march organized by Association A on June 21, 1962, the group of students of University B, including the defendant, took the lead of the march, and the defendant marched in the front row of the group. At a point about 30 meters from a particular area in Kyoto City, part of the group, from the front row to the fourth or fifth row, marched in sevens or eights almost at the center of the road. Such a manner of marching was, by appearance, in violation of the condition for permission imposed by the Kyoto Prefecture Public Safety Commission, "the marching shall be in fours," and also in violation of the condition imposed by the Head of the Kyoto Prefecture Nakadachiuri Police Station in accordance with Article 77 of the Road Traffic Law, "the marching shall proceed on the eastern side of the carriageway." Having seen this situation, Police Officer C of the Kyoto Prefecture Yamashina Police Station, who was engaged in inspecting the demonstration march to see whether or not there was violation of the conditions for permission and collecting evidence of any such violation, found that the march was in violation of the conditions for permission, and in order to confirm the status of the illegal march and the violators, photographed the front part of the marching crowd, which contained the defendant's group, from the eastern side of the pathway on Kiyamachi Street. In addition, the method by which the police officer took photographs did not impose any special burden on the marchers.
According to the facts mentioned above, the following circumstances can be found. Police Officer C took photographs when a crime was being committed. There was urgent need for preservation of evidence in light of the nature of the demonstration in which a large number of people participated and the situation would change constantly over time. The photographs were taken by an appropriate method within a generally allowable limit. Therefore, the police officer's act of photographing the marchers including the defendant should be deemed to have been legal performance of his duty, even if the photographs were taken without their consent and against their will.
Consequently, the judgment of the first instance, which regarded the police officer's act as legal performance of duty under Article 95(1) of the Penal Code, and the judgment of the second instance, which accepted the former, are not in violation of Article 13 or 35 of the Constitution. The defendant's argument is groundless.
The other grounds for the jokoku appeal argued by the defendant, including the one alleging violation of the Constitution, are in effect claims of mere violation of law or errors in fact-finding, and none of them can be regarded as a ground for jokoku appeal under Article 405 of the Code of Criminal Procedure.

The other grounds for the jokoku appeal argued by the attorney are mere claims of errors in fact-finding or violation of law, and none of them can be regarded as a ground for jokoku appeal under the said article.

Therefore, according to Article 408 and the principal sentence of Article 181(1) of the Code of Criminal Procedure, the judgment was rendered in the form of the main text by the unanimous consent of the Justices.

Justice ISHIDA Kazuto
Justice IRIE Toshio
Justice KUSAKA Asanosuke
Justice OSABE Kingo
Justice KIDO Yoshihiko
Justice TANAKA Jiro
Justice MATSUDA Jiro
Justice IWATA Makoto
Justice SHIMOMURA Kazuo
Justice IROKAWA Kotaro
Justice Osumi Kenichiro
Justice MATSUMOTO Masao
Justice IIMURA Yoshimi
Justice MURAKAMI Tomokazu
Justice SEKINE Kosato