1989.03.08

1988 (O) 436

Judgment on the constitutionality of the measure taken by the Presiding Judge to prohibit spectators from taking notes in the courtroom

Judgment of the Grand Bench, dismissed

The Jokoku appeal shall be dismissed.

The cost of the Jokoku appeal shall be born by the Appellant.

Concerning the ground for Jokoku appeal by Mikio Akiyama, Isozo Suzuki, Yoichi Kitamura, Hiroshi Miyake and Kazuhiko Yamaguchi, Representatives of the Appellant.

I. The facts confirmed by the original court are as follows:

The Appellant, a person having qualification as an attorney in the State of Washington of the United States and engaged in the research of the stock market and the attendant legal regulations thereof in Japan as a special researcher sponsored by the International Exchange Foundation, observed the trial on each date of the hearing of the criminal tax evasion case against a defendant, P, in the Tokyo District Court since October, l982 as a part of the aforementioned research. Since the presiding judge (hereinafter referred to as "the presiding judge concerned") handling the aforementioned criminal case generally prohibited in advance spectators from taking notes in the courtroom during the hearings, the Appellant applied for such permission prior to the dates of each hearings, but the presiding judge concerned did not approve this. Meanwhile the presiding judge concerned allowed journalists belonging to the Judicial Reporters' Club to take notes during the hearings.

II. Paragraph 1, Article 82 of the Constitution provides that hearings and confrontations in the trials shall be open to the public. The gist of the matter is to guarantee the conducting of hearings open to the general public in a fair manner as an established system, thus in turn securling the confidence of the people in regard to the trials.

Concomitant with the guarantee of the system of public trials any person may observe the trials. However, firstly the aforementioned provision does not recognize to the extent of demanding to the court the right to observe nor it goes without saying does it guarantee the right of spectators to take notes in the courtroom.

III. 1. Paragraph 1, Article 21 of the Constitution guarantees the freedom of expression. Since it is indispensable for the purpose that individuals form and develop their own thoughts and personalities and activate them in the social life, and also it is necessary in order to make truly effective the fundamental principle, namely, guarantee of free communication and exchange of thoughts and information in a democratic society, that individuals have opportunities to come in contact with and take in various opinions, knowledge and information freely, such freedom as to come in contact with and take in information etc. is naturally led by the purposes and effects of the provision, so to speak, as one of its derivative principles (ref. Grand Bench judgment upon the case (O) No, 927 of 1977, decided on June 22, l983, Minshu vol. 37, No. 5, p. 793).

Paragraph 2, Article l9 of the International Covenant on Civil and Political Rights (hereinafter referred to as "the International Covenant on Human Rights") should be regarded as having the same effect.

2. Although not every action of taking notes can be regarded as concerning the freedom guaranteed by the Constitution since it generally is one of the human social activities, which is done on various occasions and extends into very broad areas, freedom of taking notes should be respected in view of the spirit of Paragraph 1, Article 21 of the Constitution as long as such note-taking is done as a supplement to come in contact with and take in various opinions, knowledge and information.

Since spectators can see and hear trials in the courtroom, following the guarantee of the publicity of trial as an established system, note-taking by spectators in the courtroom is worth respecting and should not be hindered without due reasons as long as it is done in order to understand and remember the trial seen and heard.

IV. However, even freedom of taking notes to supplement the reception of information etc. cannot help but accept certain reasonable restrictions, in order to aim at reconciliating with other people's human rights that may be in collision with those rights, or by reason of the necessity to secure some superior public welfare, if any. Furthermore, it should be supposed that the strict standard which is generally considered necessary in restricting freedom of expression should not be required for restriction or prohibition of freedom of taking notes, since such freedom is different from the freedom of expression itself which is guaranteed specifically by Paragraph 1, Article 21 of the Constitution.

Considering the principle above in relation to note-taking by spectators, realization of a just and speedy trial should be most highly respected in the courtroom, since the courtroom is the place where cases are examined and adjudicated, namely, the place where judges and persons related to the case should concentrate all of their attentions in order to achieve the just and speedy trial, examining the facts and applying the law. Spectators, in contrast to judges and persons related to the case, just observe and listen to their activities and are not expected to have anything to do with trials and to participate in positive activities therein. Hence it is a matter of course that the administration of the fair and smooth trial proceedings is a legal interest far superior to note-taking by spectators. Therefore, note-taking should be restricted or prohibited if it interferes even slightly with the administration of the fair and smooth trial proceedings in the courtroom. It is provided that even observing trial itself may be restricted in order to achieve a just trial (see Article 202 and Paragraph 2, Article l23 of the Rule of Criminal Procedure).

Even apart from the cases in which note-taking has the appearance of demonstration, for instance simultaneous note-taking by the spectators who conspire with each other, it cannot be denied that there are possibilities that depending on the circumstances, such as the substance of the case in question, ages, and personalities of witnesses or defendants, relationship between spectators and the case in question and so on, note-taking itself might give rise to an atmosphere which is not appropriate for the place of trials or might be cause for such effects as unjust psychological pressure on witnesses or defendants, so that the administration of the fair and smooth trial proceedings might be interfered with.

However, it is nevertheless an unusual case that note-taking by spectators may interfere with the administration of the fair and smooth trial proceedings and therefore, without special circumstances, spectators should be left free to take notes and such freedom should be considered as being in consonance with the spirit of Paragraph 1, Article 21 of the Constitution.

V. 1. The chief judge presiding over the courtroom (including a single judge who opens the court by himself, likewise hereinafter) is entitled to take reasonable measures to maintain order in the courtroom against those who interfere with the exercise of the functions of the court or who behave improperly in the courtroom (Article 71 of the Court Organization Law and Paragraph 2, Article 288 of the Code of Criminal Procedure). Such authority of maintaining court order is given to the presiding judge so as to restrict and eliminate interference by spectators etc. with the administration of the trial in the courtroom and to satisfy the constitutional requirement of the realization of a just and speedy trial. Furthermore, considering that interference with the exercise of the functions of the court or disturbance of the order of the courtroom may take place in various ways at every stage of the trial and that the authority of maintaining court order must be exercised properly according to the various kinds of such conduct each time at each stage, such exercise should be left in the broad discretion of the presiding judge who is in the position of capably understanding most precisely the situation and who has all the responsibilities for the proceeding of the trial. Therefore, decisions by the presiding judge as to whether to exercise his authority and as to what measures to be taken must be respected to the maximum extent.

2. It cannot be said that there are no provisions in any statutes which are the basis of prohibiting spectators from taking notes in the courtroom, since pursuant to Article 71 of the Court Organization Law and Paragraph 2, Article 288 of the Code of Criminal Procedure, which entitle the presiding judge to take reasonable measures to maintain order in the courtroom against those who interfere with the exercise of the functions of the court or those who behave improperly in the courtroom, the presiding judge is duly regarded as being entitled to take measures to prohibit or regulate note-taking by spectators as a matter of course when it is probable that note-taking might interfere with the administration of the fair and smooth trial proceedings.

In addition, to restrict note-taking by spectators under the authority of maintaining court order on the basis of the aforementioned provisions, is not at all in breach of Paragraph 3, Article 19 of the International Covenant on Human Rights, since that Article provides only that a statutory provision is necessary to impose restriction on the exercise of the rights with regard to freedom of expression, including the freedom of taking in information etc.

3. It is as aforementioned that the presiding judge should leave spectators free to take notes and that this is in consonance with the spirit of Paragraph 1, Article 21 of the Constitution. Although it is desirable that the presiding judge imposes restriction or prohibition against note-taking under the authority of maintaining court order only when there are especially concrete probabilities that note-taking might interfere with the administration of the fair and smooth trial proceedings, it should be allowed as a measure within the discretion of the presiding judge that according to concrete circumstances such as the substance of the case, state of witnesses, and so on, he generally prohibits spectators from taking notes in advance and then allows it individually depending on the circumstances, so long as it does not amount to hindering note-taking by spectators without due reason.

VI. It is as aforementioned that the presiding judge concerned prohibited the Appellant from taking notes during each and every trial day, whereas he allowed the journalists belonging to the Judicial Reporters' Club to take notes.

Paragraph 1, Article 14 of the Constitution is not to the effect of a guarantee toward each individual of absolute equality, but of prohibition of the discrimination without due reason and it should be construed as not in breach of the provision to make a distinction in the legal treatment in accordance with the factual differences, so long as such distinction shows reasonableness (ref. Grand Bench judgment upon the case (Gyo-Tsu) No. 15 of 1980, decided on March 27, l985, Minshu vol. 39, No. 2, p. 247, etc.), while it is needless to say that freedom of the press is guaranteed by Paragraph 1, Article 21 of the Constitution which prescribes freedom of expression, since when people participate in national politics in a democratic society, reports by the press tender materials for important decisions, and therefore freedom of news-gathering for the press is also well worth respecting under the spirit of Article 21 of the Constitution so that such reports will have correct contents (ref. Grand Bench judgment upon the case (Shi) No. 68 of 1969, decided on November 26, 1969, Keishu vol. 23, No. 11, p. 1490).

It is therefore natural in view of the importance of reporting trials that attention may be paid to the aforementioned points in exercising the authority of maintaining court order and it cannot be regarded as an unreasonable measure to allow only the journalists belonging to the Judicial Reporters' Club to take notes in the courtroom on the basis of consideration in favor of the public interests of the press and freedom of news-gathering therefor.

The measure having been taken by the presiding judge concerned should not be found unreasonable and is not in breach of Paragraph 1, Article 14 of the Constitution, since it can be considered to be based on the aforementioned consideration.

VII. 1. In view of the aforementioned facts confirmed by the original court there can be found no reason for approving positively the measure having been taken by the presiding judge concerned (hereinafter referred to as the measure concerned), by which the judge generally prohibited spectators from taking notes in advance under the authority of maintaining court order and did not allow the Appellant to take notes. Since it cannot be found that note-taking by the Appellant might possibly interfere with the administration of the fair and smooth trial proceedings in that it might disturb order and quietness in the courtroom, might give rise to an atmosphere which is not appropriate for the place of the trial or might have unjust effects on the witnesses or the defendant, the measure concerned should be supposed to be the exercise of the authority maintaining court order without reasonable grounds. It is a fact judicially noticed without inquiry by this Court that in the past when many of so-called public security cases were filed before the courts and rude behavior occurred daily in the courtroom, it used to be necessary to take measures of prohibiting note-taking generally in the courtroom in order to expedite the smooth proceedings in those cases, and that similar measures to the measure concerned have been taken in considerable numbers of the courts within the country with a view that such measures are still necessary. However, it is also another fact judicially noticed without inquiry by this Court that at the time when the measure concerned was taken, the vast majority of people had already come to deeply understand the court and there have been becoming few cases in which spectators in the courtroom interfered with the administration of the trial by the court.

At present the courts should admit frankly that note-taking by spectators is at a stage of not being given sufficient consideration and should acknowledge that sufficient consideration to note-taking is required hereafter.

However, since this conclusion presupposes naturally that note-taking does not hinder order and quietness in the courtroom nor interfere with the administration of the fair and smooth trial proceedings, it should not be forgotten that the presiding judge also owes a duty and has the obligation to exercise the authority of maintaining court order strictly and decisively against any activities by spectators which, if ever, may be regarded as ones leading to the said harmful situation.

2. Although it is needless to say that the authority of maintaining court order should be exercised according to Article 71 of the Court Organization Law and Paragraph 2, Article 288 of the Code of Criminal Procedure, judgment by the presiding judge in that exercise should be respected to the maximum extent, considering the aforementioned effects and purposes of the authority and moreover the spirit of the rule of law. Hence it is properly construed that measures taken by the presiding judge under the authority of maintaining court order cannot be regarded as an illegal exercise of the public power under Paragraph 1, Article 1 of the Law concerning State Liability for Compensation, unless there are special circumstances such as the measure taken deviates markedly from the purpose and scope of the authority or the manner of taking the measure is utterly inappropriate. Considering the aforementioned status of spectators in the courtroom, it is to be said that this reasoning applies to the exercise of the authority of maintaining court order against note-taking by spectators.

Since it is as aforementioned that at the time when the measure concerned was taken, this view was broadly adopted that the court can properly open the courtroom, generally prohibiting spectators from taking notes under the authority of maintaining court order and in fact considerable numbers of courts had taken similar measures, and since it cannot go so far as to say that the measure concerned falls within the said special circumstances, it cannot go so far as to assert that the measure concerned amounted to illegal exercise of the public power prescribed under Paragraph 1, Article 1 of the Law concerning State Liability for Compensation, although it is found that the measure concerned was lacking in sufficient consideration.

VIII. The decision by the original court resulting in the same effect as the aforementioned can be affirmed eventually. There is no breach of the Constitution and laws as indicated and the points of arguments by the Appellant cannot be adopted in any case.

Therefore, the Court by unanimous opinion of the Justices on the bench, aside from the opinion of Justice Iwao Yotsuya, renders the judgment as set forth in the main text in accordance with Articles 396, 384, 95 and 89 of The Code of Civil Procedure.

The opinion of Justice Iwao Yotsuya is as follows:

I concur with the conclusion of the majority opinion that this Jokoku Appeal should be dismissed, but I would like to state my opinion since I cannot agree on the reasoning of the Court.

I 1. Since it is as illustrated in the majority opinion that the main points of Paragraph 1, Article 82 of the Constitution is to guarantee the established system of the fair trial by opening courts in public and to confirm people's reliance on the trial, and that the provision does not allow individuals to go so far as to demand as a right to observe trials to the court, much less guarantees as a right note-taking in the courtroom to spectators, it is to be thought sufficient in order to satisfy the requirement of the provision, to put each courtroom in the state capable of being physically heard, to allow unspecified people to enter the courtroom and not to hinder their observing and hearing the trials by the function of the so-called five organs of sense.

2. Paragraph 1, Article 21 of the Constitution guarantees the freedom of expression. The majority opinion states that the freedom, with which individuals come in contact with and take in various opinions, knowledge and information freely, derives naturally from the purpose and effect of that provision as one of its derivative principles, and that taking notes should be respected in view of the spirit of that provision as long as taking notes is done as a supplement to take in information, and moreover that note-taking by spectators in the courtroom is worth respecting as long as it is done in order to understand and remember the trial seen and heard. The above opinion of the Court with respect to freedom of taking in information and of taking notes would be quite correct as a general proposition. Nevertheless, I cannot agree on the opinion on note-taking by spectators.

It is needless to say that the courtroom is not the so-called public place, but the place for examining and adjudicating cases. Hence the greatest priority should be given there to investigating the truth calmly, applying laws strictly, and realizing a just and speedy trial. It is the very reason why the presiding judge who presides over the courtroom is given the authority of maintaining court order, to maintain the courtroom as a place suitable for the trial all times by restricting or eliminating interference with the administration of the trial and to satisfy the constitutional requirement of the realization of a just and speedy trial. Thus, in view of such effects and purposes of the authority of maintaining court order and the status and competence of the judge under the Constitution in exercising the judicial power, it should be said that the exercise of the authority of maintaining court order is left primarily to the discretion of the presiding judge who owes duties and all the responsibilities for the progress of trials and it is proper that spectators' conducts are regulated by the discretion of the presiding judge. Note-taking is not an exception to that principle. Then the presiding judge is entitled to prohibit spectators from taking notes under his discretion and as a result of that, spectators cannot fully enjoy freedom of taking in information in the courtroom, but it should be said that that is not in breach of Article 21 of the Constitution, nor even its spirit, since the courtroom is the place for examination and adjudication as aforementioned and spectators are nothing but in the status in which they can freely enter to the courtroom, where trials are presided over by the presiding judge and see and hear activities of the judges and parties concerned.

The Grand Bench judgment upon the case (O) No. 927 of l977, decided on June 22, 1983, Minshu vol.37, No. 5, p. 793), which the majority opinion cites, was concerned with the freedom of reading newspapers, regarding unconvicted prisoners who are being detained in prisons against their will and it is as aforementioned that spectators in the courtroom are in a different status from those who are detained like that by the public authority against their will. Furthermore, while the taking in of information by unconvicted prisoners is completely impossible by the ban on reading newspapers, spectators are not prevented at all from taking in information through the function of five organs of sense in the courtroom even if being prohibited from taking notes in the courtroom.

In addition, to prohibit spectators from taking notes cannot be said to be in breach of Paragraph 3, Article l9 of the International Covenant on Human Rights or the spirit of the provision since the main point of the provision is not different from Article 21 of the Constitution, and moreover it is as held by the majority opinion that to prohibit spectators from taking notes under the authority of maintaining court order is not in breach of Paragraph 3, Article 19 of the International Covenant on Human Rights.

3. As above, no ground in the Constitution or any other laws under which the courts are demanded to allow spectators to take notes in the courtroom can be found.

Since it cannot be said that freedom of note-taking by spectators in the courtroom falls within the interests protected by law, the claim by the Appellant had no reason with no need of further consideration and the original judgment is right in its conclusion. Therefore, this Jokoku appeal should be dismissed.

II I add at this opportunity some remarks about whether it is appropriate to leave spectators free to take notes in the courtroom.

Even if it is not demanded by the Constitution or any other laws to leave spectators free to take notes, to do so except when there are special circumstances would be one choice, if it were not for the danger of interfering generally with the administration of the fair and smooth trial proceedings.

However, while the greatest importance should be placed on the state in which the courtroom is kept as a place where the truth should be readily found since it is as aforementioned that the courtroom is the place for findings of the truth, the possibility cannot be denied that note-taking in the courtroom by spectators, even if it is done calmly and does not disturb order in the courtroom, might give delicate psychological effects on witnesses and defendants and might make them hesitate to tell the truth. And it is even needless to say that it is difficult or almost impossible in many cases to predict in advance whether there might be such effects and that the effects on the trial of the case concerned is irretrievable when the truth does not come up in the courtroom because of the influence brought about by note-taking. Besides, effects are not always exerted on1y on witnesses and defendants. Due attention should be paid to the fact that there might be some danger that investigation of the truth on which attention should be concentrated might be hindered as the atmosphere to be solemn has been disturbed in the courtroom where spectators are taking notes.

Next, when documents stating circumstances in the courtroom are distributed as being drawn up according to notes taken by spectators in the courtroom, these might give impressions and suspicions to the public as if those contents were true even if they are imprecise in fact, which incident cannot be prevented in advance, and moreover the impressions once given to the public cannot be thrown away easily. In order not to bring about bad effects like this, it is appropriate to arrange for reports about events in the courtroom to be done in principle by the journalists belonging to the Judicial Reporters' Club and it is as held by the majority opinion that it is not in breach of Paragraph l, Article 14 of the Constitution to allow only such journalists belonging to the Judicial Reporters' Club to take notes in the courtroom.

Furthermore, if it were accepted that as aforementioned spectators are to be left free to take notes in the courtroom and the presiding judge takes measures to prohibit note-taking under the authority of maintaining court order only when note-taking would possibly influence witnesses and defendants psychologically or when the courtroom could not be maintained as the place suitable for examination and adjudication, according to my experience, there would be considerable danger that the smooth administration of the trial would be interfered with because of a complication caused by the prohibition when spectators' note-taking is prohibited by exception. To prevent such danger, it therefore would be proper that in every courtroom note-taking by spectators should be generally prohibited in advance and might be allowed individually at the discretion of the presiding judge after the application to that effect.

Thus in relation to note-taking by spectators so far not a few presiding judges have adopted the so-called license system where, upon general prohibition of note-taking of spectators, the presiding judge permits note-taking individually only when it is determined harmless, taking into consideration the purpose of the spectator's observation of the trial, ages and personalities of witnesses and defendants, substance of the case concerned, procedures intended to be done on the date of the trial and so on, and I suppose that to take such measures is one of the appropriate methods under the present conditions of the courtroom. It is needless to say that the presiding judge should pay sufficient attention to individual merits of applications such as the purpose of note-taking by the spectators concerned on deciding whether note-taking should be allowed or not.

III It is when held in the courtroom surrounded with a solemn atmosphere that trials, particularly criminal trials, can accomplish their mission in full and that public reliance on trials can be maintained. It is as held in the majority opinion that the presiding judge owes duties and responsibilities to exercise the authority of maintaining court order strictly and resolutely when he considers that conducts by spectators disturb order and quietness in the courtroom and interfere with the administration of the fair and smooth trial proceedings. I suppose that up to the present, many presiding judges, especially those who handled so-called rough courtroom cases, have maintained court order and a solemn atmosphere of the courtroom by the proper exercise of their authority and have eliminated interference with the fair and smooth administration of the trial and I hope them to continue that practice.

Justice Koichi Yaguchi
Justice Masami Ito
Justice Keiji Maki
Justice Mitsuhiko Yasuoka
Justice Reijiro Tsunoda
Justice Rokuro Shimatani
Justice Akira Fujishima
Justice Tsuneo Ouchi
Justice Yasukazu Kagawa
Justice Toshio Sakaue
Justice Tetsuro Sato
Justice Iwao Yotsuya
Justice Hisayuki Okuno
Justice Katsumi Teika
Justice Seiichi Ohori