2025.05.21

2025(Shi)328

Keishu Vol. 79, No. 4

(Criminal Case) Decision concerning whether it is appropriate for a judge who rendered a judgment of conviction in the first instance of a charged case, to participate in a judicial decision on bail to be made by the court of second instance of the charged case

Case of special appeal to the Supreme Court against the ruling to dismiss the objection against the ruling to dismiss bail

Decision of the First Petty Bench, other

Sapporo High Court, Decision of April 23, 2025

In accordance with Article 20 of the Code of Criminal Procedure, the judge who rendered a judgment of conviction in the first instance of a charged case is disqualified from the execution of their duty concerning a judicial decision on bail to be made by the court of second instance of the charged case.

Article 20 of the Code of Criminal Procedure

The decision in prior instance and the decision in the instance preceding the prior instance are revoked. The case is remanded to the Sapporo High Court.

Except for the arguments of violation of Article 37, paragraph (1) of the Constitution and violation of a judicial precedent, the objectives of this special appeal are to argue mere violation of laws and regulations and errors in the findings of fact. In consideration of the arguments, the Court makes a determination by its own authority. According to the case records, it is clear that the Sapporo High Court, the court of second instance of the charged case, is a panel of judges including a judge who rendered a judgment of conviction in the first instance of the charged case, and that this panel rendered a ruling to dismiss bail and then the court of prior instance rendered a ruling to dismiss the objection filed by the appellant of this special appeal. However, a judge who rendered a judgment of conviction in the first instance of a charged case is disqualified in the court of second instance due to the grounds set forth in the main clause of Article 20, item (vii) of the Code of Criminal Procedure, that is, the judge has participated in a ruling in the prior instance of the charged case. Participating in a judicial decision on bail to be made by the court of second instance is the execution of a duty of a judge of the court of second instance. Accordingly, it is appropriate to interpret that in accordance with Article 20 of the Code of Criminal Procedure, the judge who rendered a judgment of conviction in the first instance of a charged case is disqualified from the execution of their duty concerning a judicial decision on bail to be made by the court of second instance of the charged case. Consequently, the decision in the instance preceding the prior instance, which was rendered through the involvement of the judge who should have been disqualified from the execution of the relevant duty, and the decision in prior instance, which upheld the former decision, are illegal due to the error in the interpretation and application of Article 20 of the Code of Criminal Procedure, and it is found that such illegality would have affected these decisions and it would be clearly contrary to justice if these decisions were not revoked. Therefore, without needing to make a determination on the other objects of the special appeal, this Court applies mutatis mutandis Article 411, item (i) of the Code of Criminal Procedure, and in accordance with Article 434 and Article 426, paragraph (2) of that Code, revokes the decision in prior instance and the decision in the instance preceding the prior instance, and remands the case to the Sapporo High Court, the court of the instance preceding the prior instance. The Court unanimously decides as set forth in the main text of the decision.

Justice OKA Masaaki Justice YASUNAMI Ryosuke Justice SAKAI Toru Justice MIYAGAWA Mitsuko Justice NAKAMURA Makoto