2018.10.17

2018 (Bun) 1

Minshu Vol. 72, No. 5

Decision on the meaning of a judge’s act which “degrade[s] himself/herself” as referred to in Article 49 of the Court Act

Case of petition for disciplinary action against a judge

Decision of the Grand bench, admonition

1. A judge’s act which “degrade[s] himself/herself” as referred to in Article 49 of the Court Act means any act of a judge that would compromise the public trust in judges in general or would raise suspicions about the impartiality of judicial decisions, whether such act takes place in the course of his/her job duties or is a purely private act.

2. A judge’s posting on an information network which allows the posting of short messages through the Internet constitutes an act which “degrade[s] himself/herself” as referred to in Article 49 of the Court Act, under the circumstances described in the judgment, including those specified in (1) through (3) below:

(1) The posting took place in a situation where it was well known that the poster was in the post of judge;

(2) The posting overtly conveyed to many and unspecified readers the judge’s one-sided opinion on a civil case whose judgment had become final and binding and of which the judge had not been in charge, stating, without showing signs that the judge had fully considered the details of the case and by providing superficial information only, that it was unreasonable of the plaintiff of the case, who is a private person, to have filed the suit.

(3) The posting, coupled with expressions contained in it which may be taken as making a mockery of the aforementioned plaintiff’s filing of the suit, offended the plaintiff.

(There is a concurring opinion on 2.)

(For 1 and 2) Article 49 of the Court Act

(For 2) Article 2 of the Judges Status Act



Court Act

(Disciplinary Actions)

Article 49 If a judge has violated his/her official duties, neglected his/her jobs or degraded himself/herself, that judge shall be subjected to disciplinary action by judicial decisions as provided for by applicable law.

Judges Status Act

(Disciplinary Action)

Article 2 Disciplinary action against a judge shall be admonition or a civil fine of not more than 10,000 yen.

The respondent shall be subject to admonition.

1. Background of this case

(1) The respondent was appointed as an assistant judge on April 13, 1994 and as a judge on April 13, 2004. The respondent has been in the post of judge of the Tokyo High Court since April 1, 2015 and has been in charge of civil cases.

(2) Around April 23, 2014, when the respondent was a judge of the Shimotsuma branch of the Mito District and Family Courts, he made, on his Twitter (i.e., an information network which allows users, through the Internet, to post messages, etc. called tweets that are no longer than 140 characters) account named with his real name (hereinafter referred to as the “Account”), a posting shown in paragraph 1 of the List of Tweets in the Exhibit, which stated to the effect that he would keep posting, among others, photos of his own naked body and those of himself with only a white brief on, together with a photo of his official notification of appointment, which is a letter of appointment issued to a person who has been appointed a judge. Later, by March 2016, the respondent made two additional postings on the Account, including a comment with a photo of a topless man bound with rope. On June 21, 2016, the chief judge of the Tokyo High Court gave an oral warning to the respondent under Article 21 of the Lower Court Administrative Rules, on the grounds that the three postings mentioned above are acts that compromise the integrity of judges and the public trust in courts.

(3) Around December 13, 2017, the respondent, in a situation where others were able to recognize that he was a judge, made on the Account a posting stating, “A man who has a proclivity of feeling sexual excitement at the sight of women in agony from being choked” and “A 17-year-old women who was brutally killed by such a man,” as well as providing a URL (i.e., a code for searching for and identifying a website on the Internet at the request of a user) of the court website on which one could read the judgment on a particular sexual crime case, thereby offending the victim’s surviving family. On March 15, 2018, the chief judge of the Tokyo High Court gave a written warning to the respondent under Article 21 of the Lower Court Administrative Rules, on the grounds that the respondent’s act described above is inappropriate as a judge and compromises the public trust in courts.

When the respondent was questioned by the chief judge of the Tokyo High Court about the posting described above, he said, among other things, that he was sorry for offending the surviving family, that he thought he had done something that he should not have done, and that he felt deeply regretful.

2. Facts providing grounds for disciplinary action

Around May 17, 2018, the respondent made on the Account a posting (hereinafter referred to as the “Tweet”) which contained the message shown in paragraph 2 of the List of Tweets in the Exhibit and which provided access to a website on which one could read a media account on a civil case seeking return of a dog, which had become final and binding after the making of an appellate decision in the Tokyo High Court and of which the respondent was not in charge, thereby offending the party which filed the aforementioned case and whose claim for return of the dog was awarded.

The Tweet was made in a situation where many and unspecified persons knew that the postings on the Account were made by the respondent who was a judge.

3. Evidence

The facts described in sections 1 and 2 above are found from: (i) The respondent’s resume; and (ii) the report dated June 12, 2018 and that dated July 4, 2018 prepared by the Director General, Secretariat of the Tokyo High Court.

The fact that the Tweet was made in a situation where the Tweet was known to have been made by a judge is obviously found from the facts, among others: that the posting shown in paragraph 1 of the List of Tweets in the Exhibit was made together with the posting of a photo of the respondent’s official notification of appointment as a judge; that, around February 2018, the respondent made on the Account a posting introducing a dialogue book in which one of the parties to the dialogue was represented as “Judge Kiichi Okaguchi”; and that the postings described in section 1 above and the warnings given with respect to them were widely reported as misconduct by a judge with the respondent’s real name.

4. Decision

(1) The impartiality and neutrality of judicial decisions forms the basis for the public trust in judicial decisions and courts. A judge has a job responsibility to make judicial decisions as an impartial, neutral decision-maker. Therefore, one should consider that a judge has an obligation to refrain from engaging in any act that would be inconsistent with his/her job responsibility and to act carefully to avoid compromising the public trust in courts and judges, not only in the course of performance of his/her job duties but also in his/her life as a private citizen away from his/her job duties (see Supreme Court, 2001 (Bun) 3, Decision of the Grand bench of March 30, 2001, Saibanshu Minji No. 201, p. 737).

In addition, Article 49 of the Court Act is considered to specify a judge’s act which “degrade[s] himself/herself” as a ground for disciplinary action, in light of the fact that a judge has the obligation described above. Therefore, it is appropriate to consider that a judge’s act which “degrade[s] himself/herself” as referred to in the same article means any act of a judge that would compromise the public trust in judges in general or would raise suspicions about the impartiality of judicial decisions, whether such act takes place in the course of his/her job duties or is a purely private act.

(2) According the facts described in section 2 above, the respondent, in a situation where many and unspecified persons knew that the respondent’s postings made on the Account were made by a judge, made on the Account the Tweet: (i) which pointed out, and expressed a surprise and question using expressions that may be taken as making a mockery of, a dog owner’s past behavior that is inconsistent with the dog owner’s filing of a suit seeking return, etc. of the dog from a person who had taken custody of and raised the dog which had been left in a park; and (ii) on which one could read a media account reporting that the judgment awarding the aforementioned dog owner’s claim for return of the dog had become final and binding. According to the evidence referred to in (ii) of section 3 above, the aforementioned media account was written mainly from the viewpoint of the defendant in the aforementioned suit. However, the Tweet made no mention of the factual background of the aforementioned suit or of the circumstances on the part of the aforementioned dog owner, including the circumstances leading up to the aforementioned dog owner’s filing of the suit, nor does the Tweet provide any information on how the respondent examined the aforementioned dog owner’s allegations. In addition, as shown in paragraph 2 of the List of Tweet in the Exhibit, the Tweet contains no statement that would help readers to understand that the aforementioned surprise and question expressed in the Tweet was merely a summary of the allegations of only the defendant in the aforementioned case or a summary of the aforementioned media account. Furthermore, the aforementioned media account does not contain any expressions similar to those used in the Tweet. In this situation, the Tweet is, based on a general reader’s ordinary care and way of reading, inevitably taken as expressing the respondent’s view that the aforementioned dog owner’s filing of such a suit is itself unreasonable. In fact, the aforementioned dog owner visited the Tokyo High Court and said, among other things, that the dog owner had been offended by the statement, “Eh? You? You abandoned this dog, didn’t you? After leaving it for as long as three months …,” that the dog owner wanted to protest against the respondent, that the dog owner requested deletion of the Tweet, and that the dog owner wanted to know how the court would deal with this problem, and asked the court to give a warning to the respondent even after deletion of the Tweet (the evidence referred to in (ii) of section 3 above).

Thus, we can find that the respondent, in a situation where it was well known that he was in the post of judge, overtly conveyed to many and unspecified readers his one-sided opinion on a civil case whose judgment had become final and binding and of which he had not been in charge, stating, without showing signs that the judge had fully considered the details of the case and by providing superficial information only, that it was unreasonable of the plaintiff of the case, who is a private person, to have filed the suit. We must say that this act of the respondent compromises the public trust in judges and raises suspicions about the impartiality of judicial decisions, since it raises public suspicions that judges make decisions with prejudgment based only on superficial, one-sided information and understanding when performing their job duties, and since, coupled with expressions contained in the posting which may be taken as making a mockery of the aforementioned plaintiff’s filing of the suit, the above act of the respondent offends the aforementioned plaintiff by expressing the respondent’s one-sided understanding or opinion that the filing of the suit by the plaintiff, who is a private person guaranteed with the right of access to courts, was unreasonable.

Therefore, we should find that the respondent’s act described above constitutes a judge’s act that “degraded himself/herself” as referred to in Article 49 of the Court Act.

In this regard, the constitutional guarantee of freedom of expression extends to judges. While a judge naturally has this freedom in their capacity as a citizen, we must say that the respondent’s act described above deviates from the limits permitted to a judge regarding freedom of expression, and it is obvious that his act should be subject to disciplinary action. Therefore, one cannot say that this petition is an unreasonable one that has been filed as a means to make the respondent stop posting on Twitter or on the grounds that the respondent did not pledge to stop posting on Twitter.

In addition, prior to making the Tweet, the respondent had twice received a warning on the grounds, among others, that his postings on the Account compromised the dignity of judges and the public trust in courts. In particular, in light of the fact that the second warning was given with respect to the respondent’s act similar to the one in question in this case in that it offended a private person involved in a suit, that the second warning was given only two months before the Tweet, and that during the questioning before receiving the warning, the respondent stated that he felt deeply regretful for offending a person involved in the suit, we have no choice but to find that the respondent’s act of making the Tweet despite the circumstances described above is heavily reprehensible.

Accordingly, the Court subjects the respondent to admonition in accordance with the provisions of Article 2 of the Judges Status Act and unanimously decides as set forth in the main text. However, there is a concurring opinion of three of the justices, YAMAMOTO Tsuneyuki, HAYASHI Keiichi and MIYAZAKI Yuko.

The concurring opinion of the justices, YAMAMOTO Tsuneyuki, HAYASHI Keiichi and MIYAZAKI Yuko, is as follows:

We agree with the Court’s opinion, based on the following view:

1. The facts providing the grounds for disciplinary action in this case are that, in a situation where many and unspecified persons knew that the postings on the Twitter Account were made by the respondent who was a judge, the respondent offended the plaintiff by providing access to a media account which mainly reported the allegations on the part of the defendant in the suit in question in this case, and by indirectly criticizing the plaintiff for filing of the suit, using mocking expressions. We consider that such an act is inappropriate and careless for a judge who should make it a principle to be impartial and neutral. The respondent alleges, among others, that the Tweet merely provides a summary of the media account and does not offend the plaintiff. However, since it is easily read from the text of the media account accessible through the Tweet that the whole media account mainly introduces the allegations on the part of the defendant, one should consider it inevitable that a tweet containing expressions like those used in the Tweet would be taken as a posting through which a working judge makes a mockery of the plaintiff’s filing of the suit.

2. In addition, during the period of a little more than two years prior to this case, the respondent twice received an oral or written warning from the chief judge of the Tokyo High Court, on the grounds, among others, that the content of some of the postings made on the Account constitute acts compromising the dignity of judges and the public trust in courts.

In particular, the posting subject to the second warning was made with respect to the judgment on a particular criminal case over sexual offenses and offended persons involved in the action (i.e., the victim’s surviving family) more obviously and seriously than the Tweet did. In this sense, we consider that the posting might itself have deserved disciplinary action because it was an act that was more malicious than the Tweet, was totally inappropriate for a judge, and seriously compromised the public trust in courts. However, considering that the respondent stated, during the questioning by the chief judge of the Tokyo High Court, that he was sorry for offending the surviving family and felt deeply regretful, we infer that the then chief judge of the Tokyo High Court chose to give a warning only in light of this regret of the respondent.

3. In light of these circumstances, one should inevitably consider that no room is left to forgive the respondent for making another posting on the Account that offended a person involved in another particular suit, after only a little more than two months from the second warning described above. Aside from a comparison of the level of maliciousness between the Tweet and the case subjected to the second warning, the Tweet would be something that should be regarded as the so-called “last straw” (a metaphor of something that causes a limit to be exceeded, based on a fable to the effect that when a camel is loaded to its full capacity, only one additional straw will break its back as it does not withstand the total load) in deciding whether the respondent deserves disciplinary action.

4. The respondent alleges that his past postings, which were subject to warnings, should not be taken into account as this violates the prohibition against double jeopardy. However, the grounds for the action rendered in this case do not bring up the respondent’s past acts themselves and regard them as a problem; instead, what is regarded as a problem is the fact that the respondent repeated an act of the same kind in the same manner after the elapse of only a little more than two months, despite the two warnings received in the past and, in particular, despite the respondent’s statement of regret made when he received the second warning.

5. Incidentally, it goes without saying that a working judge’s right to express his/her opinions through SNS or other means of expression, whether through Twitter or otherwise, should be protected by the constitutional guarantee of freedom of expression. However, due to their job responsibility, judges are required more than anything to earn the public trust by, among others, maintaining their dignity and making judicial decisions in an impartial and neutral manner. We believe that, when a judge engages in an act of expression in a situation where it is well known that he/she is a judge, as was the case with this case, he/she should particularly discipline himself/herself in choosing the content of, and expressions used in, the act in order to avoid compromising such public trust.

While there are certain restraints or limits in such sense, judges are not restricted from freely expressing themselves in their capacity as a citizen. To be on the safe side, therefore, we would like to add that cases like this one should not unnecessarily discourage judges from expressing their opinions in their capacity as a citizen.

Justice OTANI Naoto

Justice OKABE Kiyoko

Justice ONIMARU Kaoru

Justice YAMAMOTO Tsuneyuki

Justice YAMASAKI Toshimitsu

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice KANNO Hiroyuki

Justice YAMAGUCHI Atsushi

Justice HAYASHI Keiichi

Justice MIYAZAKI Yuko

Justice MIYAMA Takuya

Justice MIURA Mamoru