Judgments of the Supreme Court

Search Results

2022 (Shi) 25

Date of the judgment (decision)

2022.07.27

Case Number

2022 (Shi) 25

Reporter

Keishu Vol. 76, No. 5

Title

Decision concerning the case in which the court determined that a person who received a disposition of seizure by an investigative authority is not permitted to make a request for return as the request falls under an abuse of right

Case name

Case of special appeals to the Supreme Court against the ruling to dismiss quasi-appeals against dispositions concerning return of seized articles made by the public prosecutor

Result

Decision of the First Petty Bench of the Supreme Court, dismissed

Court of the Prior Instance

Tokyo District Court, Judgment of January 5, 2022

Summary of the judgment (decision)

Under the following circumstances as held in the judgment (see the text of the decision), a person from whom articles were seized is not permitted to request return of the seized articles as the request falls under an abuse of right: on the articles that were seized by an investigative authority, video data, etc. concerning the cases of constructive forcible sexual intercourse, etc. alleged against the person from whom the articles were seized, etc. are recorded; the video data, etc. consisted of videos shot and sounds recorded without the permission of women who were allegedly victims; if these video data, etc. are disseminated, it is liable to cause those women to suffer disadvantages that are difficult to recover, such as extreme harm to their reputations, personalities, etc. and great emotional distress; and the person from whom the articles were seized does not appear to be suffering great disadvantages even if the person cannot receive return of the seized articles, including the same video data, etc.

References

Article 123, paragraph (1) and Article 222, paragraph (1) of the Code of Criminal Procedure and Article 1, paragraph (2) of the Rules of Criminal Procedure

Code of Criminal Procedure

Article 123(1)Seized articles which do not necessitate custody must, notwithstanding the conclusion of the case, be returned by a ruling.

Article 222(1)The provisions of Article 99, paragraph (1), Article 100, Articles 102 through 105, Articles 110 through 112, Article 114, Article 115 and Articles 118 through 124 apply mutatis mutandis to a search and seizure conducted by a public prosecutor, public prosecutor's assistant officer or a judicial police official pursuant to the provisions of Article 218, Article 220 and the preceding Article, and the provisions of Article 110, Article 111-2, Article 112, Article 114, Article 118, Article 129, Article 131 and Articles 137 through 140 apply mutatis mutandis to the inspection conducted by a public prosecutor, public prosecutor's assistant officer or a judicial police official pursuant to the provisions of Article 218 or Article 220; provided however, that the dispositions prescribed in Articles 122 through 124 may not be executed by a judicial constable.

Rules of Criminal Procedure

(Construction and Operation of These Rules)
Article 1(2)Procedural rights must be exercised in good faith, and must not be abused.

Main text of the judgment (decision)

The appeals are dismissed.

Reasons

All the reasons for the appeals, including the arguments of violation of the Constitution and violation of a judicial precedent, are substantially arguments of a mere violation of laws and regulations and an erroneous finding of facts, and none of these reasons constitutes the reason for an appeal as referred to in Article 433 of the Code of Criminal Procedure.

Incidentally, in consideration of the arguments, the Court makes a determination by its authority.

1. In this case, regarding the mobile phones, etc. of the appellant that were seized from the appellant by a judicial police officer, the appellant requested the public prosecutor of the Tokyo District Public Prosecutors Office to return them under Article 123, paragraph (1) of the Code of Criminal Procedure, as applied mutatis mutandis pursuant to Article 222, paragraph (1) of the same Code, but the public prosecutor refused to respond to the request and made dispositions not to return them (hereinafter referred to as the "Dispositions"). Therefore, the appellant filed quasi-appeals referred to in Article 430, paragraph (1) of the same Code, but the quasi-appeals were dismissed. Consequently, the appellant filed the special appeals.

2. According to the findings of the decisions in prior instance, as well as the case records, the facts of this case are as follows.

(1) The appellant was running a cram school providing guidance about the methods of picking up women and was sharing videos, etc. of the scenes of sexual intercourse with women among a group of the students of the school. On June 20, 2018, the appellant's residence, etc. were searched in relation to the case of collective quasi rape alleged against Students X and Y, and two mobile phones (hereinafter referred to as "Non-Returned Article 1" and "Non-Returned Article 2") and one IC recorder (hereinafter referred to as "Non-Returned Article 3," and Non-Returned Articles 1 to 3 are collectively referred to as the "Non-Returned Articles") of the appellant were seized.

After that, on March 12, 2020, the appellant was convicted by the court of first instance for the case charged for constructive forcible sexual intercourse, etc. in which the appellant, independently or in conspiracy with Y and other students of the school, had sexual intercourse with three women (A, B, and C) by taking advantage of their inability to resist due to drunkenness. The appeals to the court of second instance had been dismissed and the appellant had already filed the final appeal when the decisions in prior instance were rendered.

(2) All Non-Returned Articles 1 to 3 are related to the cases of constructive forcible sexual intercourse, etc. alleged against the appellant and Student Z in which Woman D is the victim. The video data of the situation where the appellant was inserting his finger in the private part of D lying in the state of inability to resist and the image data of D's face are recorded on Non-Returned Article 1, and the audio data of the situation where the appellant, etc. and D, etc. were spending time at the scene of the case and the situation before and after the case (including the scene where D's full name was being announced), etc. are recorded on Non-Returned Article 3, respectively. The appellant received a disposition of non-prosecution in relation to the same alleged case but alleged that D had given consent to the relevant act.

In addition, Non-Returned Article 2 is related to the cases charged against X, etc. for constructive forcible sexual intercourse, etc. in which Woman E is the victim (convictions have become final and binding). The image data, etc. of E's business card and face photo and E's naked body are recorded thereon. In relation to the same charged cases, the appellant was treated as an unsworn witness. However, after learning of the arrest of X, etc., the appellant shared the images of the aforementioned business card and face photo with other students of the school and tried to have contact with E.

All the aforementioned data consisted of videos shot and sounds recorded without the permission of D and E, and if these data are spread, it is liable to cause D and E to suffer disadvantages that are difficult to recover, such as extreme harm to their personalities, etc. and great emotional distress.

(3) The appellant requested the public prosecutor of the Tokyo District Public Prosecutors Office to return the Non-Returned Articles in August 2021, and furthermore filed quasi-appeals against the Dispositions made by the same public prosecutor in November 2021. When making the Dispositions, the public prosecutor made an offer to the effect that the Non-Returned Articles would be returned if the appellant accepts the deletion of the data mentioned in (2) above. In response to this offer, the appellant alleged that the data would be necessary to prove the non-existence of appellant's criminal act, in the case charged for constructive forcible sexual intercourse, etc. mentioned in (1) above and in a civil case. However, the appellant does not appear to be suffering great disadvantages even if he cannot receive return of the Non-Returned Articles, including the same data.

3. Under the circumstances as mentioned above, it should be said that the appellant is not permitted to request return of the Non-Returned Articles as the request falls under an abuse of right. Thus, in this case, the decisions in prior instance that upheld the Dispositions made by the public prosecutor for the reason to the same effect are reasonable.

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.

Presiding Judge

Justice SAKAI Toru

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya

Justice YASUNAMI Ryosuke

Justice OKA Masaaki

(This translation is provisional and subject to revision.)