2024.11.15

2024 (Shi) 761

Keishu Vol. 78, No. 6

(Criminal Case)Decision concerning the initial date of the period during which the defense counsel may file an immediate appeal against a ruling to dismiss a request filed by the defense counsel for an order of disclosure of evidence (Article 316-26, paragraph (1) of the Code of Criminal Procedure) in the case where the transcript of the ruling was first served upon the defense counsel and then served upon the accused

Case of special appeal to the Supreme Court against the ruling to dismiss the immediate appeal filed against the ruling to dismiss the request for a ruling relating to disclosure of evidence

Decision of the Third Petty Bench, other

Fukuoka High Court, Miyazaki Branch, Decision of September 20, 2024

Where the transcript of a ruling to dismiss a request filed by the defense counsel for an order of disclosure of evidence (Article 316-26, paragraph (1) of the Code of Criminal Procedure) was first served upon the defense counsel and then served upon the accused, when the defense counsel intends to file an immediate appeal against that ruling, the period of filing runs from the day on which the transcript of the ruling was served upon the accused.

Article 316-20, paragraph (1), Article 316-26, Article 351, paragraph (1), Article 352, Article 355, Article 358, and Article 422 of the Code of Criminal Procedure

The decision in prior instance is revoked.

The case is remanded to the Fukuoka High Court.

Among the reasons for the appeal, the argument of violation of a judicial precedent is irrelevant in this case because the cited judicial precedent addressed a different type of facts, and the rest, including the argument of violation of the Constitution, are in effect arguments of mere violation of laws and regulations. None of these reasons constitutes the reason for an appeal as referred to in Article 433 of the Code of Criminal Procedure.

In consideration of the arguments, the Court makes a determination by its own authority.

According to the case records, it is clear that the transcript of the ruling in first instance that dismissed the request filed by the defense counsel for an order of disclosure of evidence under Article 316-26, paragraph (1) of the Code of Criminal Procedure was served upon the chief defense counsel on August 30, 2024, and upon the accused on September 3, 2024, and that an immediate appeal was filed by the defense counsel against that ruling on September 5, 2024. The court of prior instance construed that in this case, the three-day period of filing an immediate appeal as prescribed in Article 422 of the same Code runs from the day on which the transcript of the ruling in first instance was served upon the chief defense counsel, and dismissed said immediate appeal, determining that the immediate appeal was not in accordance with the law because it was filed after the expiration of the period of filing.

However, against a ruling to dismiss a request filed by the defense counsel for an order of disclosure of evidence, the defense counsel may file an immediate appeal as a person, other than a public prosecutor or the accused, who has had a ruling rendered against them, and may also file an immediate appeal for the accused. When the defense counsel intends to file an immediate appeal for the accused, the period of filing runs from the day on which the transcript of the ruling to dismiss the request for an order of disclosure of evidence was served upon the accused. Accordingly, if the transcript of a ruling to dismiss a request filed by the defense counsel for an order of disclosure of evidence was first served upon the defense counsel and then served upon the accused, when the defense counsel intends to file an immediate appeal against that ruling, it should be considered that the period of filing runs from the day on which the transcript of the ruling was served upon the accused.

Consequently, the immediate appeal in this case is legal as it was filed within the period of filing of an immediate appeal as prescribed in Article 422 of the same Code. The decision in prior instance that determined this immediate appeal to be not in accordance with the law is illegal due to an error in the interpretation and application of Articles 358 and 422 of the same Code, and such illegality has affected the decision. It is deemed that the decision in prior instance would be clearly contrary to justice if it were not revoked.

Therefore, the Court revokes the decision in prior instance by applying mutatis mutandis Article 411, item (i) of the same Code, and remands the case to the Fukuoka High Court pursuant to Article 434 and Article 426, paragraph (2) of the same Code. The Court unanimously decides as set forth in the main text of the decision.

Justice HAYASHI Michiharu

Justice UGA Katsuya

Justice WATANABE Eriko

Justice ISHIKANE Kimihiro

Justice HIRAKI Masahiro