2005.04.14

2004 (A) 1618

Keishu Vol. 59, No. 3

Judgment concerning whether or not Articles 157-3 and 157-4 of the Code of Criminal Procedure are in violation of Article 82(1) and Paragraph 1 and the first sentence of Paragraph 2 of Article 37 of the Constitution

Case to be brought for bodily injury and rape

Judgment of the First Petty Bench, dismissed

Nagoya High Court, Judgment of June 29, 2004

Articles 157-3 and 157-4 of the Code of Criminal Procedure are not in violation of Article 82(1) and Paragraph 1 and the first sentence of Paragraph 2 of Article 37 of the Constitution.

Paragraph 1 and of Paragraph 2 of Article 37 and Article 82(1) of the Constitution, and Articles 157-3 and 157-4 of the Code of Criminal Procedure

Paragraph 1 and Paragraph 2 of Article 37 of the Constitution
1. In all criminal cases, the accused shall enjoy the right to a speedy and public trial by an impartial tribunal.
2. The accused shall be permitted full opportunity to examine all witnesses, and he shall have the right of compulsory process for obtaining witnesses on his behalf at public expense.

Article 82(1) of the Constitution
Trials shall be conducted and judgment declared publicly.

Article 157-3 of the Code of Criminal Procedure
1. When examining a witness, the court may, based on opinions of the prosecutor and the defendant or the defense counsel, take measures to prevent either the defendant or the witness from seeing the other party or prevent both parties from seeing each other in cases where the court considers that the witness might feel pressure or his/her peace of mind might be substantially disturbed, due to the nature of the crime, the age and physical and/or mental conditions of the witness, the relationship between the witness and the defendant, and other circumstances concerned if the witness is forced to give a statement in the presence of the defendant (including cases where the methods set forth in the first paragraph of the next article are used), and believes it appropriate to take such measures. However, such measures to prevent the defendant from seeing the witness shall not be taken in the absence of the defense counsel.
2. When examining a witness, the court may, based on opinions of the prosecutor and the defendant or the defense counsel, take measures to prevent both the audience and the witness from seeing each other in cases where the court considers it appropriate to take such measures in light of the nature of the crime, the age and physical and/or mental conditions of the witness, the impact on the witness's reputation, and other circumstances concerned.

Article 157-4 of the Code of Criminal Procedure
1. When examining any of the following persons as a witness, the court may, based on opinions of the prosecutor and the defendant or the defense counsel, examine the witness by using the method by which the witness may be seated in a place other than the place where the judges and other parties concerned in the case are seated in order to examine the witness (within the same premise where these persons are seated) and may be examined by audiovisual communication through the transmission of images and sounds.
(1) The victim of the crimes set forth in Articles 176 to 178, Article 181, Article 225 (limited to the part relating to the crime committed for the purpose of immorality or marriage; hereinafter the same in this subparagraph), Article 227(1) (limited to the part relating to the crime committed for the purpose of assisting another who has committed the crime provided in Article 225), Article 227(3) (limited to the part relating to the crime committed for the purpose of immorality) or the first sentence of Article 241 of the Penal Code, or attempt of these crimes.
(2) The victim of the crime set forth in Article 60(1) of the Child Welfare Law (Law No. 164 of 1947) or the crime set forth in Article 60(2) of the said law in relation to Article 34(1)(ix) of the said law, or the crimes set forth in Articles 4 to 8 of the Law for Punishing Acts Related to Child Prostitution and Child Pornography and for Protecting Children (Law No. 52 of 1999).
(3) Other person who might feel pressure or whose peace of mind might be substantially disturbed, due to the nature of the crime, the age and physical and/or mental conditions of the witness, the relationship between the witness and the defendant, and other circumstances concerned, if the person is forced to give a statement in the place where the judges and other parties concerned in the case are seated in order to examine the witness.
2. When examining a witness by the methods provided in the preceding paragraph, the court may, based on opinions of the prosecutor and the defendant or the defense counsel, record the questions given to and the statement made by the witness as well as the scene of the examining in recording media (media in which images and sounds can be simultaneously recorded; hereinafter the same) in cases where the court considers that the witness is likely to be asked to give a statement as a witness again with respect to the same facts in the subsequent criminal proceedings, and the witness agrees to such recording.
3. The media in which the questions given to and the statement made by the witness as well as the scene of the examining are recorded in accordance with the preceding paragraph shall be treated as part of the trial record of the examination of witness and included in the case files.

The jokoku appeal shall be dismissed.
The 170 days of pre-judgment detention for this instance shall be included in the principal punishment.

1. Concerning the ground for the jokoku appeal argued by the attorney HAMADA Hiromichi, which alleges violation of the Constitution
The attorney argues that Articles 157-3 and 157-4 of the Code of Criminal Procedure are in violation of Article 82(1) and Paragraph 1 and the first sentence of Paragraph 2 of Article 37 of the Constitution.
Article 157-3 of the Code of Criminal Procedure, with the objective of reducing the burden on the witness to be examined who might feel pressure or whose peace of mind might be substantially disturbed under the gaze of the defendant, provides that the court may take measures to prevent either the defendant or the witness from seeing the other party or prevent both parties from seeing each other in cases where the court finds such risk and considers it appropriate to take such measures, and may also take measures to prevent both the audience and the witness from seeing each other (these measures shall hereinafter be referred to as "shielding measures"). Article 157-4 of the said code provides that, when examining a victim of a sex-related crime as a witness, the court may, in order to prevent the witness from feeling mental pressure when forced to give a statement before the judges and other parties concerned in the case who are to examine the witness, examine the witness by using the method by which the witness may be seated in other place within the same premise and may be examined by audiovisual communication through the transmission of images and sounds (this method shall hereinafter be referred to as the "video-link system").
Even where, in a case that a witness is examined on a date fixed for trial, the court orders shielding measures between the audience and the witness or orders use of the video-link system in a manner that the witness is shielded from the audience, the trial remains open. Consequently, these provisions are not in violation of Article 82(1) or Article 37(1) of the Constitution.
Also, where shielding measures are taken upon the examination of a witness so as to prevent the witness from being seen by the defendant, the defendant cannot see the witness but can hear the witness giving a statement and can also question the witness by him/herself. Furthermore, since shielding measures may not be taken in the absence of the defense counsel, the defense counsel will not be prevented from observing the witness's attitude while giving a statement. Therefore, in light of the purport of the measures mentioned above, the defendant's right to question a witness is not infringed. Similarly, where the video-link system is used, the defendant can see and hear the witness giving a statement at the same time and can also question the witness by him/herself, although this is accomplished through the transmission of images and sounds, and therefore, the defendant's right to question a witness is not infringed. Even where the video-link system is used and the measures to prevent the defendant from seeing the witness are taken at the same time, the defendant still can hear the statement given by the witness and can also question the witness by him/herself, although this is accomplished through the transmission of images and sounds, and the defense counsel will not be prevented from observing the witness's attitude while giving a statement. Therefore, the defendant's right to question a witness is not infringed also in this case. Consequently, Articles 157-3 and 157-4 of the Code of the Criminal Procedure are not in violation of the first sentence of Paragraph 2 of Article 37 of the Constitution.
The reasoning shown above is obviously appropriate in light of the judgments made by the Supreme Court in past cases (1949 (Re) No. 731, judgment of the Grand Bench of the Supreme Court of March 15, 1950, Keishu Vol. 4, No. 3, at 355, 1949 (Re) No. 1873, judgment of the Grand Bench of the Supreme Court of March 15, 1950, Keishu Vol. 4, No. 3, at 371, 1951 (Re) No. 2518, judgment of the Grand Bench of the Supreme Court of April 6, 1955, Keishu Vol. 9, No. 4, at 663, 1954 (A) No. 1400, judgment of the Grand Bench of the Supreme Court of December 26, 1956, Keishu Vol. 10, No. 12, at 1746, 1954 (Chitsu-Chi) No. 1, decision of the Grand Bench of the Supreme Court of February 17, 1958, Keishu Vol. 12, No. 2, at 253).

2. Concerning other claims made by the attorney and the grounds for the jokoku appeal argued by the defendant
Other claims made by the attorney are claims of errors in fact-finding and the grounds for the jokoku appeal argued by the defendant, including the one alleging violation of the Constitution, are in effect claims of mere violation of law or errors in fact-finding, and none of these claims can be regarded as a ground for jokoku appeal under Article 405 of the Code of Criminal Procedure.

Therefore, according to Article 408 and the proviso of Article 181(1) of the Code of Criminal Procedure, and Article 21 of the Penal Code, the judgment was rendered in the form of the main text by the unanimous consent of the Justices.

Justice SHIMADA Niro
Justice YOKOO Kazuko
Justice KAINAKA Tatsuo
Justice IZUMI Tokuji
Justice SAIGUCHI Chiharu