1995.06.20

1990 (A) 72

Keishu, Vol. 49, No. 6, at 741

Judgment upon the case concerning: (1) admissibility as evidence of deposition made to Public Prosecutor by persons subjected to involuntary deportation; (2) deposition made to Public Prosecutor by persons subjected to involuntary deportation deemed to be admissible as evidence

Case involving violation of Prostitution Prevention Law

Judgment of the Third Petty Bench; dismissed

Osaka High Court, Judgment of November 10, 1989

(1) Depositions made to the Public Prosecutor by persons who were later involuntarily deported from the country may be inadmissible as evidence if the presentation as evidence of the deposition in accordance with the first section of Article 321, Paragraph 1-2 of the Code of Criminal Procedure violates due process as in the followings: if the Public Prosecutor knows and intentionally attempts to take advantage of the fact that the deponent is to be deported and will not be available for testifying in the preparatory phase of the trial or in court; and, if the deponent is deported notwithstanding a determination by the judges or courts to call the deponent as a witness.

(2) In the case at hand, there is no indication that the Public Prosecutor intentionally attempted to take advantage of the fact that the deponents would be involuntarily deported and unavailable to testify at a future date in the preparatory phase of the trial or in court. Due measures were taken for preservation of evidence by calling other deponents who were deported at the same time for witness cross-examination. One of the deponents had already been deported when measures to preserve evidence were taken. The remaining deponents were deported and no motion was filed at any time for preservation of evidence. Considering the facts of the case, the presentation as evidence of the deposition made by the deponent in the presence of the Public Prosecutor does not violate due process. Therefore, the deposition is admissible as evidence.

(Concurring opinion is filed regarding (1).)

(Regarding (1) and (2)): Code of Criminal Procedure, Article 1; Article 320, Paragraph 1; Article 321, Paragraph 1-2; Constitution, Article 37, Paragraph 2

Jokoku Appeal is dismissed.

(1) Concerning the grounds for Jokoku Appeal:

Jokoku Appellant's Attorneys SHIMOMURA Yukio, HANAFUSA Hideyoshi and HARA Shigeji have argued that the provisions of the first section of Article 321, Paragraph 1-2 of the Code of Criminal Procedure violate the provisions of Article 37, Paragraph 2 of the Constitution. As has been previously affirmed by this Court (Supreme Court, 1951 (A) No. 2357 and judgment of the Grand Bench of April 9, 1952; Keishu, Vol. 6, No. 4, at 584), that provision of the Code of Criminal Procedure does not violate Article 37, Paragraph 2 of the Constitution, and therefore the above argument is groundless. The remainder of the arguments presented, including the contention of unconstitutionality, is in reality no more than a claim of violation of laws and ordinances and are assertions based on misinterpretations of fact. None of these provides grounds for Jokoku Appeal under the Code of Criminal Procedure, Article 405.

(2) Ex Officio Determination

Upon consideration of the arguments presented and by the authority vested in this Court, we make the following determinations concerning the admissibility as evidence of depositions made by thirteen women of Thai nationality in the presence of the Public Prosecutor (hereinafter "depositions made to the Public Prosecutor ").

1. The Public Prosecutor took the depositions of thirteen women of Thai nationality (persons in the employ of the Defendants in this case which concerns managed prostitution), conducting the questioning while the women were in the custody of the Osaka Immigration Bureau undergoing involuntary deportation procedures. All of the women were thereafter deported to Thailand. In the court of the first instance, these depositions were demanded as evidence under the first section of Article 321, Paragraph 1-2 of the Code of Criminal Procedure. The depositions were admitted as evidence and served as evidence in establishing the facts of the crime in this case.

2. The first section of Article 321, Paragraph 1-2 of the Code of Criminal Procedure provides that a deposition made in the presence of the Public Prosecutor is admissible as evidence if the deponent is unable to give testimony in the preparatory phase of the trial or in court by reason of residence abroad, and states that the deposition should be admitted as evidence if the above provision has been met. The above provision carves out an exception to the prohibition of hearsay evidence under Article 320 of the Code of Criminal Procedure, but in view of the right of a Defendant to examine all witnesses as guaranteed under Article 37, Paragraph 2 of the Constitution, some question remains as to whether a deposition made in the presence of the Public Prosecutor can, without exception, be admitted as evidence and used as evidence in determining the facts of a case depending on the circumstances under which the deposition has been prepared and its submission as evidence demanded, and depending on the reasons of the deponent's residence abroad.

3. In this case, the deponents were residing abroad due to involuntary deportation, an administrative measure whereby foreign nationals are deported by the immigration authorities under certain conditions as prescribed under the Immigration Control and Refugee Recognition Act for the purpose of achieving the administrative objective of ensuring justice in the control of immigration. Such depositions may be inadmissible as evidence where demand for submission as evidence of the deposition of the pertinent foreign national violates due process when the Public Prosecutor knows and intentionally takes advantage of the fact that the deponent is to be deported and will not be available for testifying in the preparatory phase of the trial or in court; and, if the deponent is deported notwithstanding a determination by the judges or courts to call the deponent as a witness.

4. In the context of this case, there is no evidence to indicate that the Public Prosecutor intentionally sought to take advantage of the fact that the deponents would be involuntarily deported and hence unavailable for testifying in the preparatory phase of the trial or in court. At the request of the defense attorney for preservation of evidence, the judges called as a witness and questioned one woman of Thai nationality (similarly in the employ of Defendants) taken into custody at the same time as the above-mentioned thirteen women of Thai nationality. Of the thirteen Thai women, the defense attorney had requested preservation of evidence concerning one individual. However, that individual had already been deported when the request was filed. The remaining twelve women were deported without requests for preservation of evidence. The facts offer no reason to conclude that the demand for submission of evidence of the depositions made to the Public Prosecutor in this case violates due process. Consequently, the said depositions cannot be considered inadmissible as evidence for establishing the facts of the case.

5. Therefore, we agree with the Court of Appeals in affirming the ruling of the court of the first instance that the depositions made to the Public Prosecutor corresponded to the documents defined under the first section of Article 321, Paragraph 1-2 of the Code of Criminal Procedure and were admissible as evidence.

Therefore, in accordance with Article 408 of the Code of Criminal Procedure, this Court unanimously finds as stated in the Main Text of the Judgment above, while noting the Concurring Opinion of Justice OHNO Masao.


CONCURRING OPINION OF JUSTICE OHNO MASAO

1. The basic issue in this case concerns the question of how to balance the conflicting demands of the immigration authorities and their implementation of involuntary deportation for the purpose of ensuring justice in immigration control, and the demands of Criminal Courts whose purpose is to establish the facts of the case while preserving the common good and guaranteeing the fundamental human rights of individuals.

What would be the outcome if priority were always given to the administrative requirements of immigration control? Suppose a foreign national whose testimony is needed to prove a crime is deported as an administrative action. If his testimony were to be admitted as an exception to the exclusion of hearsay evidence on the grounds that the "foreign national is residing abroad," this would effectively deprive the Defendant from exercising his right to question a witness and would be a violation of due process. On the other hand, it would be unjustified to keep a foreign national in custody for an indefinite period of time on the grounds that he may be called for questioning to preserve the right of the Defendant to question witnesses. Not only would such a course of action be unjustified in view of the foreign national's human rights, but also it would be unsustainable for proper administration of immigration control.

It is necessary to find a balance between the administrative responsibilities of the immigration authorities to implement just control and the need for justice and the discovery of the truth in the criminal courts.

2. The opinion of this Court has been stated as follows. Due process and justice demand, as a rule, the inadmissibility as evidence of depositions made to the Public Prosecutor in the following circumstances: if the Public Prosecutor knows and intentionally takes advantage of the fact that the deponent is to be deported and will not be available for testifying in the preparatory phase of the trial or in court; and, if the deponent is deported notwithstanding a determination by the judges or courts to call the deponent as a witness, and it therefore becomes impossible to question the witness. In this opinion, the Court has identified a possible balance of interests, a coordination of two sets of demands: that of the administrative responsibilities of the immigration authorities and the requirements of criminal justice through this opinion.

3. Yet the coordination between two sets of demands arrived at is not necessarily a satisfactory one when balanced against the guarantee provided to Defendants to question witnesses. This is particularly true under current circumstances wherein a State-appointed attorney is not always provided to suspects, so that suspects are represented by an attorney in only an estimated 10% to 20% of all cases. It would prove extremely difficult to rely on procedures for preservation of evidence under this situation. Furthermore, even after arraignment, it is by no means easy for an attorney to promptly receive disclosure of evidence from the Public Prosecutor and to arrive at a quick decision as to whether or not it is necessary to demand preservation of evidence concerning a foreign national in custody.

As for the Public Prosecutor, difficult obstacles and problems remain in the current legal system when the Public Prosecutor attempts to preserve the credibility of deposition made by a foreign national and essential to proving the crime by moving to call the deponent as a witness at some time prior to the first trial session.

Current conditions were not foreseen when the Code of Criminal Procedure was formulated wherein the entry and exit of foreign nationals has become a routine matter, and foreign nationals are found to be involved in a growing number of criminal cases. Hence, the Code of Criminal Procedure and the Immigration Control and Refugee Recognition Act contain no provisions for the purpose of coordinating this matter. Basically, it is through prompt legislation that such judicial defects should be rectified.

However, it would not be permissible to leave unsettled difficult problems that actually arise in the criminal justice process. As such, there is no other available path but for the courts, Public Prosecutors, defense attorneys and other persons related to a case to mutually cooperate and endeavor to pursue the discovery of truth based on the principle of justice by such means as providing, as far as possible, an opportunity to question as witnesses foreign nationals who are scheduled to be deported.



Third Petty Bench of the Supreme Court

Justice OHNO Masao
Justice SONOBE Itsuo
Justice KABE Tsuneo
Justice CHIKUSA Hideo
Justice OZAKI Yukinobu