1969.11.26

1969 (Shi) 68

Ruling upon case of the so-called HAKATA RAILWAY STATION CASE and a Court Order to produce films collected for news report

The Grand Bench, Supreme Court of Japan

THE CONSTITUTION OF JAPAN

Article 21. 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.

THE CODE OF CRIMINAL PROCEDURE (Law No. 131 of 1948)

(Articles related to Kokoku Appeal)

Article 434. The provisions of Articles 423, 424 and 426 shall apply mutatis mutandis to the Kokoku appeal mentioned in Paragraph 1 of the preceding Article, except as otherwise provided in this Code.

Article 423. Kokoku appeal shall be filed by presenting a written application to the original court.

2. When the original court finds the Kokoku appeal to be well-founded, it shall correct error in the ruling. If it finds the whole or a part of the Kokoku appeal to be groundless, it shall send the written application with the written opinions attached thereto to the court of Kokoku appeal within three days after the day when it received the application.

Article 424. With the exception of immediate Kokoku appeal, Kokoku appeal shall not have the effect of suspending the execution of the decision. However, the original court may, by means of a ruling, suspend the execution until the Kokoku appeal will have been adjudicated upon.

2. The court of Kokoku appeal may suspend the execution of the decision by means of a ruling.

Article 426. In the event of a Kokoku appeal having been made in a manner contrary to the provisions governing it, or if a Kokoku appeal is without ground it shall be dismissed by means of a ruling.

2. Should the Kokoku appeal be well-founded, the original ruling shall be cancelled by means of a ruling and, if necessary, a decision rendered anew.

Article 433. Against a ruling or order to which no objection is allowed in this Code, a Kokoku appeal may be filed to the Supreme Court only on the ground that there exists a reason provided in Article 405.

Article 405. Jokoku appeal may be lodged against a judgment in first or second instance rendered by a High Court in the following cases:

(1)
On the ground that there is a violation of the Constitution or an error in construction, interpretation or application of the Constitution;

(2)
On the ground that a judgment has been formed incompatible with the judicial precedents formerly established by the Supreme Court;

(3)
In cases for which there exist on judicial precedents of the Supreme Court, on the ground that a judgment has been formed incompatible with the judicial precedents formerly established by the former Supreme Court (Dai Shin In) or by the High Court as the Court of Jokoku appeal or, after the enforcement of this Code, by the High Court as the court of Koso appeal.

(Article related to order demanding to submit articles)

Article 99. When it is necessary, a court may seize any articles which, it believes, should be used as evidence, or liable to confiscation, except as otherwise provided in this and other laws.

2. A court may designate articles to be seized and order the owner, possessor or custodian thereof to produce such articles.

(Articles related to demand not to prosecute)

Article 262. If, in a case with respect to which complaint or accusation is made concerning the offenses mentioned in Articles 193 to 196 of the Penal Code or Article 45 of the Subversive Activities Prevention Law (Law No. 240 of 1952) , the complainant or accuser is dissatisfied with the disposition made by a public prosecutor not to prosecute, he may apply to a District Court having jurisdiction over the place of the public prosecutor's office to which that public prosecutor belongs for committing the case to a court for trial.

2. The application mentioned in the preceding paragraph shall be made by submitting a written application to a public prosecutor who made the disposition not to prosecute, within seven days from the day on which notice mentioned in Article 260 was received.

Article 263. The application mentioned in Paragraph 1 of the preceding Article may be withdrawn before the ruling of Article 262 is rendered.

2. The person who made the withdrawal as provided in the preceding paragraph shall not make anew the application mentioned in Paragraph 1 of the preceding Article in respect to the same case.

Article 264. A public prosecutor shall institute prosecution if he considers the application mentioned in Paragraph 1 of Article 262 well-founded.

Article 265. Trial and decision on the application mentioned in Paragraph 1 of Article 262 shall be conducted and delivered by a collegiate court.

2. The court may, if it deems necessary, cause a member of a collegiate court to investigate the fact, or requisition a judge of a District or Summary Court to do so. In this case a commissioned judge or a requisitioned judge shall have the same authority as the court or a presiding judge has.

Article 266. On receipt of the application mentioned in Paragraph 1 of Article 262, a court shall render a ruling according to the following classification:

(1)
In the event of the application having been made contrary to the form fixed by law or ordinance or after the right of application has extinguished or of its being without grounds, it shall be dismissed;

(2)
If the application is well-founded, the case shall be committed to a competent District Court for trial.

Article 267. When the ruling mentioned in Item (2) of the preceding Article has been rendered, prosecution shall be deemed to have been instituted on the case.

Article 268. When a case has been committed to it for trial in accordance with the provisions of Article 266, Item (2), the court shall designate from among practicing attorneys one who shall sustain the prosecution on such case.

2. The practicing attorney designated as mentioned in the preceding paragraph shall exercise the functions of a public prosecutor in order to sustain the prosecution until the decision has become final. However, the practicing attorney mentioned in the preceding paragraph shall commission a public prosecutor to direct public prosecutor's assistant officer or judicial police official for criminal investigation.

3. The practicing attorney who exercises the functions of a public prosecutor in accordance with the preceding paragraph shall be deemed to be an official engaged in the public service in accordance with laws or ordinances.

4. A court may cancel the designation of the practicing attorney designated in accordance with the first paragraph at any time if it finds that he is not qualified to exercise his functions or there are any other special circumstances.

5. The practicing attorney designated in accordance with the first paragraph shall be given allowances as fixed by cabinet order.

THE PENAL CODE (Law No. 45 of 1907)

Article 193 (Abuse of Authority by Public Officer) When a public officer abuses his authority and causes a person to perform an act which he has no obligation to perform, or obstructs a person from exercising a right which he is entitled to exercise, imprisonment at forced labor or imprisonment for not more than two years shall be imposed.

Article 194. (Abuse of Authority by Special Public Officer) When a person performing or assisting in judicial, prosecutive or police functions abuses his authority and arrests or imprisons another, imprisonment at forced labor or imprisonment for not less than six months nor more than 10 years shall be imposed.

Article 195. (Violence and Mistreatment of Special Public Officials) When a person performing or assisting in judicial, prosecutive or police activities, in the performance of his duties, commits an act of violence or cruelty against the defendant in a criminal action or against another person, imprisonment at forced labor or imprisonment for not more than seven years shall be imposed.

2. The same applies when a person who is guarding or escorting another confined in accordance with law or ordinance commits an act of violence or cruelty against him.

Article 196. (Consequential Aggravation) A person who commits a crime provided in the preceding two Articles and thereby kills or injures another shall be subject to the punishments provided for the crimes of bodily injury if they be graver.

The special Kokoku appeal in this case is hereby dismissed.

The grounds for this special Kokoku appeal are as stated in the annexed documents hereof.

Concerning the reasons for this special Kokoku appeal submitted by the appellants themselves, the additional reasons submitted by Attorney Toshio Murata for the appellants and the first reason of the supplementary reasons submitted by Attorney Akira Senoo and other two Attorneys for the appellants:

The gist of these contentions alleging a violation of Article 21 of the Constitution is as follows. The freedom to report news holds an important place in Article 21 of the Constitution, as one of the bases of a democratic society for which the Constitution of Japan stands, and in order to make the freedom of reporting news perfect, the freedom of news-gathering activity too should be guaranteed as being indispensable under Article 21 of the Constitution. The reason why the freedom of news-gathering activity has been in fact widely secured to news media up to this time is that there has existed such faith and actual results on the part of news media and such confidence on the part of the general public as news are gathered solely for the purpose of reporting and collected data are not to be used for other purposes. However, if the court order demanding to submit the news films for the purpose of using them as evidence for a criminal trial is affirmed as to be legal and news media are obliged to obey the order, the public confidence in the news media would be forfeited and their co-operation would be lost, and consequently the freedom of reporting the truth would be paralysed. As a result the general public can not get enough data for their judgment in executing their sovereign power, and their "right to know information", the constituent of the freedom of expression would be unduly hampered. In the end this order demanding to submit the films is repugnant to Article 21 of the Constitution guaranteeing the freedom of expression.

The opinion of this allegation is as follows:

In our democratic society, as is pointed by appellants, the news reports offer important materials for the people to make their judgments in participating in the government and make a contribution to the realization of their "right to know information". Therefore, it goes without saying that the freedom of reporting news together with that of expression of thoughts is guaranteed under Article 21 of the Constitution providing the freedom of expression. And, for the purpose of helping the news reported by news media, the freedom of news-gathering activity as well as that of news reporting is to be sufficiently respected, in the light of the purport of Article 21 of the Constitution.

What are demanded to submit in this case are news films prepared for broadcasting, including some which were already sent on the air. Since those are the things which news media have already gotten in their hands through their news-gathering activities, the court order demanding to submit has no direct relation with the news-gathering activity itself. Nevertheless, if the films gathered by news media for the purpose of serving for the aim of news report are used for other purposes, for the purpose of serving as evidence in a criminal trial like in this case, it can not be said that there will be no fear of any future hindrance to the freedom of news-gathering activity of news media.

As a matter of course, for instance the freedom of news-gathering activity too, however, shall not be absolute one not subject to any restriction, and when there is such a Constitutional request as the realization of a fair trial it can not be denied that the freedom of news-gathering activity should be restricted to a certain degree.

While the question of whether or not any restriction to the freedom of news-gathering activity should be admitted for the purpose of the realization of a fair criminal trial is the issue of this case, it goes without saying that the realization of a fair criminal trial is one of the national fundamental requests, and that the revealing of true facts is strongly requested in criminal trials. It should be said that we can not but restrict the freedom of news-gathering activity to a certain degree when the data collected by news media is considered to be necessary as evidence in order to secure such a fair criminal trial. Even in such a case, however, the character, mode and gravity of the crime which is the object of the trial, evidential value of the data and the existence of the necessity for the realization of a fair criminal trial should be considered at first, and then they should be balanced with the degree of the hindrance to the freedom of news-gathering activity which would occur when news media are obliged to submit the collected data as evidence with the extent of its consequential influence upon the freedom of news report and with all other necessary considerations. Even when the use of the data as evidence in a criminal trial is considered to be inevitable, the regard should be paid lest the disadvantage to be suffered by news media should exceed the indispensable degree.

Considering from the above-mentioned points of view, the object of the hearing in this "fushinpan-seikyu" case......that means the case of which the committing to a court for trial is applied by the complainant or accuser who is dissatisfied with the disposition made by a public prosecutor not to indict......is to clarify the fact of whether or not the offences of the abuse of their official authority and or the offences of the violence and mistreatment committed by special public officials were really committed by the police officers during the clash between police and students. At the present stage of the hearing, even the identifications of suspects and victims are difficult. Now that almost two years have passed since the occurrence of the case, any new testimony by uninterested people can not be expected to be obtained. Under these circumstances, therefore, these news-films taken by news media on the actual spots of the clash from a neutral standpoint have highly important evidential value and are considered to be almost essential for deciding the criminality of the suspect. In addition, since the films are those which were prepared for broadcasting, including some which were already sent on the air, the disadvantage which news media have to suffer by submitting them as evidence does not relate to the freedom of news report itself, but only to the possible hindrance to the future news-gathering activity. Though this is not a trial itself but a hearing for the "fushinpan-seikyu" case as before explained, the disadvantage to this degree, even from the viewpoint that the function of news media should be highly esteemed, is still within the proper limits to be endured by them so as to expect the realization of a fair criminal justice for this case. Furthermore, the Fukuoka District Court which issued this order has pronounced that it is prepared, lest news media shall be interfered with their use of the films, to take the appropriate measure such as a timely provisional restoration and so on after the films are seized. When we take into consideration the above-mentioned various points and all other relevant matters together, we conclude that it was really inevitable that the court issued the order demanding to submit those for the purpose of using them as evidence in the hearing of this "fushinpan-seikyu" case.

From all these above-mentioned points of view, the order demanding to submit the films in this case is neither repugnant to Article 21 of the Constitution nor even to the purport of it. Therefore, the ruling of the court below which affirmed the order is proper and the contention of the appellants is not well-founded.

Concerning the second reason of the supplementary reasons submitted by Attorney Akira Senoo and other two Attorneys for the appellants:

Though a violation of Article 32 of the Constitution is alleged, the contention is in substance no more than that of a violation of the procedural code not amounting to a lawful ground for a special Kokoku appeal.

Accordingly, pursuant to Article 434 and paragraph 1, Article 426, of the Code of Criminal Procedure this Court renders as stated in the "Main Text" with the unanimous concurrence of all the judges.

Justice Kazuto Ishida
Justice Toshio Irie
Justice Asanosuke Kusaka
Justice Kingo Osabe
Justice Yoshihiko Kido
Justice Jiro Tanaka
Justice Jiro Matsuda
Justice Makoto Iwata
Justice Kazuo Shimomura
Justice Kotaro Irokawa
Justice Ken-ichiro Osumi
Justice Masao Matsumoto
Justice Yoshimi Iimura
Justice Tomokazu Murakami
Justice Kosato Sekine