1973.10.08

1973 (Shi) 66

Keishu Vol.23, No.9, at 1415

Decision upon the case concerning trial method and attitude, and the challenge of a judge

Case of special kokoku appeal against the decision of the immediate kokoku appeal against the decision to dismiss motion to challenge to a judge

Decision of the First Petty Bench, revoked and dismissed,

Tokyo High Court

1 Methods used to conduct trials and attitudes during court proceedings cannot in themselves constitute reasonable grounds to challenge to a judge.
2 The motion to challenge on the grounds of unfair exercise of court management authority and court policing authority by the presiding judge, from the preliminary meeting held on the day before the trial date until the end of the first trial date, is deemed, under the particular circumstances of this case (see Case Records), as intended solely to delay the court proceedings, and should be dismissed under Article 24 of the Code of Criminal Procedure.

Article 21 (1), Article 24 of the Code of Criminal Procedure

Article 21(1) of the Code of Criminal Procedure
(Concerning 1) The public prosecutor or the criminal defendant may challenge to a judge, when said judge should be excluded from the execution of duties, or there are concerns that said judge may conduct an unfair trial.

Article 24 of the Code of Criminal Procedure
(Concerning 2) A motion to challenge to a judge that is clearly intended solely to delay the court proceedings must be dismissed by decision of the court. In this case, stipulations in Para. 3 of the previous Article shall not apply. The same shall apply for motions to challenges to a judge issued in violation of stipulations in Article 22, or in violation of procedures defined in the rules of the court.
In the case of the previous Paragraph, the commissioned judge, sole judge of a district court or family court, or a judge in a summary court, who is subject to the challenge, may conduct a trial to dismiss the motion.

The decision of the second instance court shall be revoked.
The motion to challenge to a judge in this case shall be dismissed.

The reasons for kokoku appeal in this case are as set out in the attached document.
The first point states a contravention of judicial precedents, but the precedents cited all pertain to different concerns and are not applicable in this case. Similarly, the second point includes, in part, a breach of Article 37 of the Constitution, but all these points are in substance, merely allegations of violation of laws and regulations, none of which constitute legitimate grounds for kokoku appeal.
However, upon conducting an investigation through the authority of the court in respect of the points raised, in this case, the records clearly show that, on June 6, 1973, the second trial date in a case of bodily harm brought against criminal defendant A filed before Keiji Department 26 of the Tokyo District Court, defense counsels GOTO Takanori, SUZUKI Ichiro, NISHIKORI Atsushi, YAMAGUCHI Toshihiro and ASANO Kenichi filed a motion to challenge to a presiding judge, Justice FUNADA Mitsuo. Said Keiji Department 26 deemed the motion to be an action intended solely to delay the court proceedings and dismissed said motion under Article 24 of the Code of Criminal Procedure, at which time, said defense counsel filed an immediate kokoku appeal. Subsequently, on July 31 of the same year, the Tokyo High Court ruled that measures taken by the presiding judge on the first trial date of the aforementioned case could be considered lacking in propriety, and in respect of the particular circumstances of this case and the progress of the trial, did not rule out the possibility that the court management could be deemed unfair, at least from the perspective of the criminal defendant and the defense counsel, in addition, held that no indications were apparent that the defense counsel intended to delay the court proceedings, and in summation of these circumstances, held that in assessment of the said court management of the presiding judge in this case, from the standpoint of the criminal defendant and the defense counsel, concerns that an unfair trial would be conducted were not entirely inconceivable, and through the motion to challenge to a judge in this case, merely expressed dissatisfaction with the exercise of court management authority or court policing authority by the presiding judge, holding to the effect that the intention solely to delay the court proceedings could not be stated with certainty, and revoked the decision of the aforementioned Keiji Department 26, and remanded the case to the Tokyo District Court.
Incidentally, the original intention of the system allowing a judge to be challenged is to secure fairness and confidence in the courts by allowing the exclusion of a judge from cases where, due to factors outside the judicial procedure of the case, such as when a special relationship exists between said judge and the parties concerned in the case or when the judge has already formed certain conclusions regarding the case, an impartial and objective judgment cannot be expected. Trial method and attitude within judicial procedure cannot in themselves constitute reasonable grounds for a motion to challenge to a judge, and it must be said that, for complaints against such, relief should be sought through petitioning methods such as objections, appeals, etc. Therefore, there is absolutely no possibility of acceptance of motions to challenge to a judge on the grounds of dissatisfaction with trial method and attitude within judicial procedure, and the results of such motions can only be delays in the court proceedings and the diminished authority of the courts, and such is generally acknowledged throughout the legal profession.
The grounds for the motion to challenge to a judge in this case are stated as unfair exercise of court management authority and court policing authority by the presiding judge, from the preliminary meeting held on the day before the trial date until the end of the first trial date, in particular, the first trial date, when the criminal defendant and the defense counsel left the courtroom after pointedly ignoring an order by the presiding judge to remain in court and were subsequently not permitted to enter court, the trial proceeded without the presence of the defense counsel regardless the said case is mandatory required representation by defense counsel, causing concern regarding an unfair trial due to the prejudication and bias of the said presiding judge. These grounds are none other than grounds based on dissatisfaction toward the court management authority and court policing authority of the said presiding judge, and motions to challenge to a judge based on such grounds are unacceptable for the above-mentioned reasons and as such motions, in this case, can only result in delay in court proceedings and the diminished authority of the courts, causing such delay in court proceedings is the only objective of the aforementioned motions to challenge to a judge, and such motions should be dismissed under the Article 24 of said Code.
However, this court recognizes that the decision of the second instance court, which deemed the summary dismissal of this case to be inappropriate, adding judgment concerning the propriety of the exercise of court management authority and court policing authority by the presiding judge in this case, which essentially cannot constitute grounds for motion to challenge to a judge, is an erroneous interpretation and application of the law in relation to grounds for a motion to challenge to a judge, which in turn may cause misinterpretation of facts, and represents a significant injustice unless it be revoked.
Therefore, Article 411 of said Code shall be applied mutatis mutandis, and in accordance with Article 434 and Article 426 (2) of said Code, the decision was rendered in the form of the main text by the unanimous consent of the Justices.
1973.10.08
Supreme Court, First Petty Bench

Justice SHIMODA Takesou
Justice FUJIBAYASHI Ekizou
Justice KISHI Seiichi
Justice KISHIGAMI Yasuo