2025.11.10

2025(Shi)177, 178

Keishu Vol. 79, No. 8

(Criminal Case) Decision concerning materials that the court in charge of a quasi-appeal under Article 430 of the Code of Criminal Procedure should take into consideration when determining the appropriateness of the measures undertaken by the investigative authorities

Case of special appeal to the Supreme Court against the ruling to dismiss the quasi-appeal against the measures concerning the return of seized articles undertaken by a judicial police officer, and special appeal to the Supreme Court against the ruling to dismiss the quasi-appeal against the measures concerning the return of seized articles undertaken by a public prosecutor

Decision of the Third Petty Bench, other

Tokyo District Court, Decision of March 14, 2025

When the court in charge of a quasi-appeal under Article 430 of the Code of Criminal Procedure determines whether or not the measures undertaken by the investigative authorities are appropriate, it must take into consideration not only the materials that had been collected by the investigative authorities by the time the relevant measures were undertaken, but also the materials concerning the facts of that time that have subsequently collected by the investigative authorities or submitted to the court.

Article 124, paragraph (1), Article 222, paragraph (1), Article 426, Article 430, and Article 432 of the Code of Criminal Procedure

The decisions in prior instance are reversed. The measures related to the return of 15 million yen in cash (consisting of 1,500 pieces of 10,000 yen bills, bound for each 100 pieces and contained in a suitcase) as part of the measures undertaken by a judicial police officer of the Metropolitan Police Department on March 20, 2021, to return the seized articles to A, and the measures undertaken by a public prosecutor of the Tokyo District Public Prosecutors Office on February 29, 2024, not to return said 15 million yen in cash to the appellant, are rescinded.

All of the reasons for the appeals in this case, including an argument of violation of the Constitution, are substantially arguments of a mere violation of laws and regulations, and none of these reasons constitutes any of the reasons for appeal as referred to in Article 433 of the Code of Criminal Procedure. However, the Court has examined the case by its own authority in consideration of the arguments and found that the decisions in prior instance should inevitably be reversed, for the following reasons. 1. Facts of the case According to the findings of facts in the decisions in prior instance and the case records, the facts of the case are as follows. (1) Regarding the suspected theft case in which the appellant was suspected of stealing the suitcase brought by A at the hotel lobby on March 1, 2021, in which 150 million yen (money for purchase of real estate) and other items were contained, a judicial police officer of the Second Organized Crime Control Division of the Organized Crime Control Bureau of the Metropolitan Police Department, on March 20, 2021, searched the vehicle used by the appellant and seized a suitcase (referred to below the "Suitcase"; this seizure is referred to below as the "Seizure"). On the same day, the judicial police officer of that division opened the Suitcase in the presence of A and A's mother who was said to be the owner of the 150 million yen, found the cash of 15 million yen referred to in the main text of the judgment (referred to below as the "Cash"), and returned the Suitcase containing the Cash to A, together with the other items stolen in that suspected theft case, and after that the judicial police officer received the Cash and the Suitcase that were voluntarily submitted by A and retained them again. The Cash was then sent to the Tokyo District Public Prosecutors Office and has been held there since then. (2) The appellant was prosecuted for the charged fact of fraud to the effect that on March 1, 2021, at the hotel lobby, the appellant defrauded A of the suitcase brought by A, in which 150 million yen (money for purchase of real estate) and other items were contained, by telling A a lie that the appellant would keep the suitcase temporarily for A. On November 17, 2023, the appellant was handed down a judgment of acquittal, which later became final and binding with no appeal filed by the public prosecutor. (3) The appellant filed a request for the return of the Cash, but on February 29, 2024, the public prosecutor of the Tokyo District Public Prosecutors Office undertook measures to refuse the request for return and thus not to return the Cash (referred to below as the "Refusal of Return"). 2. Regarding the special appeal to the Supreme Court in relation to the measures concerning the return of seized articles undertaken by a judicial police officer (1) The appellant filed a quasi-appeal under Article 430, paragraph (2) of the Code of Criminal Procedure to seek the rescission of the measures related to the return of the Cash (referred to below as the "Return of Cash") as part of the measures undertaken by the judicial police officer concerning the return of the Suitcase containing the Cash to A, and argued that the Cash cannot be regarded as property obtained through a property crime according to the facts found in the abovementioned judgment in acquittal. The court of prior instance examined the facts regarding the investigation process, etc. and determined that the judicial police officer regarded the Cash as property obtained through a property crime involved in the abovementioned suspected theft case when enforcing the Return of Cash and it was a rational decision that could have been made by the judicial police officer at that time, and therefore that the Return of Cash was not illegal, and accordingly, it dismissed the quasi-appeal. Dissatisfied with this, the appellant filed a special appeal to the Supreme Court. (2) The Court examines this point as follows. In light of the fact that a quasi-appeal under Article 430 of the Code of Criminal Procedure is a system for filing an appeal against measures undertaken by the investigative authorities, not against a judicial decision, when the court in charge of a quasi-appeal under that Article determines whether or not the measures undertaken by the investigative authorities are appropriate, it must take into consideration not only the materials that had been collected by the investigative authorities by the time the relevant measures were undertaken, but also the materials concerning the facts of that time that have subsequently collected by the investigative authorities or submitted to the court. However, the court of prior instance took into consideration only the materials that had been collected by the investigative authorities by the time when the Return of Cash was enforced and did not take into consideration any materials concerning the facts of that time that were subsequently collected by the investigative authorities or submitted to the court. According to the records of the case in which the appellant was charged for fraud, the possibility that the appellant, at the request of a third party, received 150 million yen in cash from A as money for a currency exchange transaction between the third party and B cannot be denied, and therefore the Cash cannot be found to be property obtained through a property crime. Accordingly, the decision in prior instance that upheld the Return of Cash, which had been undertaken by regarding the Cash as property obtained through a property crime, is illegal due to the errors in the interpretation and application of Articles 430 and 426 of the Code of Criminal Procedure, and also due to the errors in the application of Article 222, paragraph (1) and Article 124, paragraph (1) of that Code. It is found that such illegality would have affected the decision and it would be clearly contrary to justice if the decision in prior instance were not reversed. 3. Regarding the special appeal to the Supreme Court in relation to the measures concerning the return of seized articles undertaken by a public prosecutor (1) Upon filing the quasi-appeal against the Return of Cash mentioned in 2. (1) above, the appellant also filed a quasi-appeal under Article 430, paragraph (1) of the Code of Criminal Procedure to seek the rescission of the Refusal of Return and also seek a judicial decision ordering the public prosecutor to return the Cash to the appellant. The court of prior instance determined that since the Cash was voluntarily submitted by A, who had had it returned legally, and then was retained by the judicial police officer, the appellant is not a person subject to seizure and therefore that the Refusal of Return is not illegal, and accordingly, it dismissed the quasi-appeal. Dissatisfied with this, the appellant filed a special appeal to the Supreme Court. (2) The Court examines this point as follows. In light of the facts mentioned in 1. (1) above as well as the fact that the Return of Cash should be rescinded as determined in 2. above, the seizure of the Cash based on the Seizure is still effective and the appellant is deemed to be a person subject to seizure. As for the question as to whether the Cash should be returned to the appellant in this case, although the judgment of acquittal became final and binding as mentioned in 1. (2) above, the Refusal of Return was undertaken and the decision in prior instance was made while not assuming that the appellant was a person subject to seizure and without conducting investigation and examination regarding whether there are any circumstances that would make it appropriate to return the Cash to a person other than the appellant. Accordingly, it cannot be said that the existence or non-existence of such circumstances has been made clear. (3) According to the above, the decision in prior instance that upheld the Refusal of Return based on the premise that the Return of Cash for which rescission is sought is still effective and on the determination that the appellant is not a person subject to seizure is illegal due to the errors in the interpretation and application of Article 222, paragraph (1) and Article 123, paragraph (1) of the Code of Criminal Procedure. It is found that such illegality would have affected the decision and it would be clearly contrary to justice if the decision in prior instance were not reversed. Regarding the appellant's request for return, the public prosecutor should examine whether it is found to be appropriate, based on the case records and the circumstances known to the public prosecutor, to return the Cash to a person other than the appellant, and make a determination on this issue again. 4. Therefore, in accordance with Article 411, item (i), Article 434 and Article 426, paragraph (2) of the Code of Criminal Procedure, the Court reverses the decisions in prior instance and further rescinds the Return of Cash and the Refusal of Return. The Court unanimously decides as set forth in the main text of the decision.

Justice HIRAKI Masahiro Justice HAYASHI Michiharu Justice WATANABE Eriko Justice ISHIKANE Kimihiro Justice OKINO Masami