2008.04.11

2005(A)2652

Keishu Vol. 62, No. 5

Judgment concerning a case where the court determined that some areas within a housing complex consisting of buildings that is used as the housing for public officials and is under the management of the managers, covering from the gateway on the first floor of each building to the front of the entrance of each residential unit, and the site of the housing complex surrounded by fences and other enclosing equipment, can be regarded as the object of the crime of breaking into the premises set forth in Article 130 of the Penal Code

Case charged for breaking into a residence

Judgment of the Second Petty Bench, dismissed

Tokyo High Court, Judgment of December 9, 2005

1. Some areas within the housing complex consisting of buildings that is used as the housing where public officials and their families reside and is under the management of the managers, covering from the gateway on the first floor of each building to the front of the entrance of each residential unit, and the part of the site of the housing complex, which borders on and surrounds each building and for which the managers, by placing fences and other enclosing equipment on the borders to the outside, clearly indicate that said part of the site is used for using each building as the building's annexed land, can be regarded as the "premises guarded by another person" set forth in Article 130 of the Penal Code and the enclosed land surrounding such premises, and as the object of the crime of breaking into the premises. 2. Where a person, with the intention of posting leaflets on which the person's political opinions are stated into the newspaper box installed on the entrance door of each residential unit, enters the common area of the housing complex used as the housing for public officials and their families and the site of the housing complex against the will of the managers of the housing complex, it does not contravene Article 21, paragraph (1) of the Constitution to charge the person with the crime set forth in the first sentence of Article 130 of the Penal Code for such act of entry.

(Concerning 1 and 2) First sentence of Article 130 of the Penal Code; (Concerning 2) Article 21, paragraph (1) of the Constitution Article 130 of the Penal Code (Breaking into a Residence) A person who, without justifiable grounds, breaks into a residence of another person or into the premises, building or vessel guarded by another person, or who refuses to leave such a place upon demand shall be punished by imprisonment with work for not more than 3 years or a fine of not more than 100,000 yen. Article 21, paragraph (1) of the Constitution Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.

The final appeals are dismissed.

I. Concerning the reason for final appeal argued by the appeal counsels for the three accused persons, KURIYAMA Reiko, et al., alleging that charging the accused with the crime set forth in the first sentence of Article 130 of the Penal Code for what they have done contravenes Article 21, paragraph (1) of the Constitution 1. According to the findings and records of the judgment of prior instance, the outline of the case is as follows. (1) Situation of the Tachikawa Housing Complex, etc. (a) Overall situation The Tachikawa Housing Complex of the Defense Agency (then; hereinafter the same) located in Tachikawa City, Tokyo (hereinafter referred to as the "Tachikawa Housing Complex") stands on a reverse L-shaped site consisting of a narrow rectangular strip of land stretching from north to south (about 400 meters long from north to south and about 50 meters wide from east to west; hereinafter referred to as the "southern site") with another narrow rectangular strip of land adjacent to the northern end of the former, which stretches from east to west (about 25 meters wide from north to south and about 130 meters long from east to west; hereinafter referred to as the "northern site") and extends westward. The eastern side of the southern site and the eastern side and northern side of the northern site face public roads, and the western side of the southern site and the western side and the western half of the southern side of the northern site border on the Self-Defense Forces (SDF) Camp Higashi Tachikawa. On the southern half of the southern site, a housing complex consisting of eight buildings stands, from Building No. 1 to Building No. 8 in line from south to north. Each building is a slender rectangular reinforced four-story building, having six residential units on each floor (each building stands on a lot of about 200 meters long in the north-south direction). The northern half of the southern site is a rectangular vacant lot stretching from north to south (hereinafter referred to as the "northern vacant lot"). On the northern site, a similar housing complex stands, consisting of Building No. 9 and Building No. 10 in line from east to west. Both Building No. 9 and Building No. 10 have five stories respectively, and Building No. 10 has eight residential units on each floor. (b) The state of enclosure of the site of Tachikawa Housing Complex (A) The site on which Building No. 1 to Building No. 8 stand is surrounded by: iron fences each of which is about 1.5 meter high on the south side; iron fences or metal netting fences each of which is about 1.5 to 1.6 meters high on the east side which faces a public road; wooden posts on the north side which borders on the northern vacant lot; and iron fences each of which is about 1.85 to 2.1 meters high on the west side which borders on the SDF Camp Higashi Tachikawa, with an entrance gate with a door. The fences on the east side have openings that serve as gateways without doors leading to the northern passages of Building No. 1 to Building No. 8, the widths of which are about 7.1 meters, about 5.9 meters, about 8 meters, about 6.1 meters, about 6.3 meters, about 5 meters, about 9 meters, and about 6.1 meters, respectively. Four iron wires are strung over the wooden posts on the north side, at almost equal intervals. (B) The site on which Building No. 9 and Building No. 10 stand is also surrounded by metal netting fences or iron fences each of which is about 1.5 to 1.7 meters high. The fences on the east and north sides that face public roads have openings that serve as gateways for the buildings, the widths of which are a few meters to about 8.2 meters, respectively, and which have no doors. (c) Condition of the guide boards, etc. standing on the site of the Tachikawa Housing Complex (A) Near the opening on the fences on the east side of the site of Building No. 1 to Building No. 8, which serves as a gateway leading to the northern passage of Building 1, stands a guide board entitled "Guide Map of the Tachikawa Housing Complex of the Defense Agency." Also, on the left of the openings on the fences on the east side of said site that lead to the northern passages of the respective buildings, there are warning boards covered with vinyl sheets. On each board, a white A3-sized landscape sheet of paper is attached, on which the following instructions are written vertically: The following is prohibited within the area of the housing complex: - Entering the area without authorization - Posting or distributing leaflets and other propaganda activities - Selling goods by opening stalls (occupying the land) or peddling - Parking vehicles - Being a nuisance to others Managers (B) Near the opening on the fences surrounding the site of Building No. 9 and Building No. 10 mentioned in (b)(B), which serves as a gateway for Building 9, stands the same guide board as that mentioned above, entitled "Guide Map of the Tachikawa Housing Complex of the Defense Agency." Also on the left or right of the openings on these fences that serve as gateways for the respective buildings, the same warning boards as those mentioned above are placed. (d) Condition of each building (A) Each of Building No. 1 to Building No. 9 has an eastern staircase, central staircase, and western staircase. On the north side of the first floor of each building, there are three gateways without doors that lead to the respective staircases. On the north side of the first floor of Building No. 10, there are four gateways without doors that lead to the eastern staircase, eastern central staircase, western central staircase, and western staircase, respectively. At these gateways, collective mailboxes are placed. In front of these staircases, there are entrances of two residential units on each floor, and a newspaper box is installed on the entrance door of each residential unit. (B) On the notice boards placed at the gateways on the first floor of Building No. 1 to Building No. 10 or on the walls above the collective mailboxes, warning notices are put up, some covered with vinyl sheets. Each notice is a white or yellow A4-sized landscape sheet of paper, on which the same instructions as those written on the aforementioned warning boards are written vertically. (e) Management of the Tachikawa Housing Complex The Tachikawa Housing Complex is a housing complex established by the State as residences for the officials of the Defense Agency and their families. At the time of the incident, almost all units were occupied in Building No. 1 to Building No. 8. Under the Act on Housing Complexes for National Public Servants, Order for Enforcement of said Act and other relevant laws and regulations, the entire site as well as Building No. 5 to Building No. 8 are under the management of the Commander of the Japan Ground Self-Defense Forces (JGSDF) Camp Higashi Tachikawa, Building No. 1 to Building No. 4 are under the management of the director of the Tachikawa Branch of the First Depot of the Japan Air Self-Defense Forces (JASDF), and Building No. 9 and Building No. 10 are under the management of the Contract Department of the Defense Agency or the Third Laboratory of the Technical Research Department of said Agency. (2) Content of the activities of the Tachikawa SDF Monitoring Tent Village The Tachikawa SDF Monitoring Tent Village (hereinafter referred to as the "Tent Village") is a group formed on the occasion of the relocation of the SDF camp to the Tachikawa Base of the United States Forces. The group, advocating antiwar and pacifism, carries out various activities such as holding demonstrations, distributing information to the public in front of train stations, and making requests to the SDF camp. The three accused are members of the Tent Village. (3) Activities of the Tent Village and the reaction thereto of the managers of the Tachikawa Housing Complex (a) Since around the time the dispatch of the SDF to Iraq was approaching after the relevant laws were enacted in 2003 summer, the Tent Village started to actively carry out protest campaign, such as publicity activities in front of train stations and demonstrations. (b) The Tent Village posted A4-sized leaflets, once every month (around mid-October 2003, around the end of November 2003, and on December 13, 2003), in the collective mailboxes placed at the gateway on the first floor of each of the buildings of the Tachikawa Housing Complex or the newspaper box installed on the entrance door of each residential unit in the buildings. The leaflets contained messages addressed to the SDF members and their families, under the headlines of "To SDF members and their families: What will the SDF dispatch to Iraq bring?," "To SDF members and their families: Say no to killing or to being killed," "SDF, do not go to Iraq! Nothing can be solved by war!," respectively, advocating their opinions against the SDF dispatch to Iraq as well as urging the SDF officials to protest against their dispatch to Iraq and notifying them of the hotline for SDF officials. (c) After the posting of leaflets on December 13, 2003 mentioned in (b) above, the persons engaging in the management affairs for the Tachikawa Housing Complex, including the chief of the Welfare Section of the JGSDF Camp Higashi Tachikawa Command who was in charge of assisting the Commander of said command and the section chief of the Tachikawa Branch of the JASDF First Depot who was in charge of assisting the director of said branch, through communications among them and on behalf of the managers, placed warning boards on December 18 and put up warning notices during the period from December 19 to 24, while taking partial charge of the work depending on the areas under their management. More specifically, they placed, as described in (1)(c)(A) and (B) above, warning boards on the fences surrounding the site of the Tachikawa Housing Complex that face public roads, near the openings on the fences that serve as gateways for the respective buildings, and put up warning notices, as described in (1)(d)(B) above, at the gateway on the first floor of each building. (d) Around that time, with regard to the posting of leaflets on December 13, 2003 mentioned in (b) above, a report of breaking into a residence was submitted to the police by the persons engaging in the management affairs for the Tachikawa Housing Complex on behalf of the managers. (4) Circumstances of the posting of leaflets in question (a) The three accused, in conspiracy, in the course of carrying out the Tent Village's activities, with the intention of posting A4-sized leaflets of the same content as that mentioned above, under the headline of "To SDF members and their families: No SDF dispatch to Iraq! Let's think and protest together!," in the newspaper box installed on the entrance door of each residential unit of each building of the Tachikawa Housing Complex, entered the site of the Tachikawa Housing Complex on January 17, 2004, from past 11:30 a.m. to around noon, and while dividing the areas among them, they entered Building No. 3, Building No. 5, Building No. 6, and Building No. 7 from the gateway on the first floor of each building leading to the eastern staircase and central staircase of Building No. 3, eastern staircase of Building No. 5, eastern staircase of Building No. 6, and western staircase of Building No. 7, respectively, through to the front of the entrance of each residential unit on the fourth floor, and then posted the leaflets in the newspaper box installed on the entrance door of each unit. (b) On January 23, 2004, with regard to the posting of leaflets mentioned in (a) above, a report of breaking into a residence was submitted to the police by the persons engaging in the management affairs for the Tachikawa Housing Complex on behalf of the managers. When an on-site inspection was implemented on February 3, 2004, there was no warning notice described in (1)(d)(B) above at the gateways of Building No. 1 to Building No. 9, central gateway of Building No. 3, eastern gateway of Building No. 4, western gateway of Building No. 5, and western gateway of Building No. 8. (c) Accused A and Accused B, in conspiracy, in the course of carrying out the Tent Village's activities, with the intention of posting A4-sized leaflets of the same content as that mentioned above, under the headline of "Neither Bush nor Koizumi goes to war," in the newspaper box installed on the entrance door of each residential unit of each building of the Tachikawa Housing Complex, entered the site of the Tachikawa Housing Complex on February 22, 2004, from past 11:30 a.m. to around noon, and while dividing the areas among them, they entered Building No. 3, Building No. 5, and Building No. 7 from the gateway on the first floor of each building leading to the western staircase of Building No. 3, western staircase of Building No. 5, and western staircase of Building No. 7, respectively, through to the front of the entrance of each residential unit on the fourth floor, and then posted the leaflets in the newspaper box installed on the entrance door of each unit. (d) On March 22, 2004, with regard to the posting of leaflets mentioned in (c) above, a report of breaking into a residence was submitted to the police by the persons engaging in the management affairs for the Tachikawa Housing Complex on behalf of the managers. 2(1) As described in 1(4)(a) and (c) above, the accused entered the site of the Tachikawa Housing Complex, entered the buildings from the gateway on the first floor of each building through to the front of the entrance of each residential unit. They are charged with the crime set forth in the first sentence of Article 130 of the Penal Code for having committed such entry. We first examine whether the places where the accused entered can be regarded as a "residence of another person," "premises guarded by another person" or "building guarded by another person," all of which are prescribed in said Article. (2) In light of the factual circumstances mentioned in 1 above, i.e. the structure of the buildings of the Tachikawa Housing Complex and the conditions of gateways of each building, the conditions of the site of the housing complex and its access from the surrounding land and roads (enclosure), and the status of management of the housing complex, the area covering from the gateway on the first floor of each building to the front of the entrance of each residential unit forms a part of the building of the housing complex, which is a residential building, and is under the management of the managers of the housing complex, and in this respect, said area can be regarded as part of a residential building and the "premises guarded by another person" as set forth in Article 130 of the Penal Code. The part of the site of the buildings, on which no building is actually located, borders on and surrounds each building, and it appears that the managers, by placing fences and other enclosing equipment on the borders with outside, clearly indicate that said part of the site is used for using each building as the building's annexed land. Therefore, said part of the site should be regarded as enclosed land surrounding the "premises guarded by another person" and the object of the crime of breaking into the premises (See 1974 (A) No. 736, judgment of the First Petty Bench of the Supreme Court of March 4, 1976, Keishu Vol. 30, No. 2, at 79). (3) The term "breaking into" as used in the first sentence of Article 130 of the Penal Code means to enter the premises guarded by another person, etc. against the will of the manager (See 1980 (A) No. 906, judgment of the Second Petty Bench of the Supreme Court of April 8, 1983, Keishu Vol. 37, No. 3, at 215). It is obvious from the facts mentioned in 1 above that the entry into the Tachikawa Housing Complex by the accused was against the will of the managers of the housing complex, as described in 1(1)(e) above. (4) Consequently, the accused's entry into the site of the Tachikawa Housing Complex and into the buildings from the gateway on the first floor of each building through to the front of the entrance of each residential unit should be construed to constitute the criminal act set forth in the first sentence of Article 130 of the Penal Code. In light of the manner and extent of their entry as described in 1 above as well as the fact that reports of breaking into a residence were submitted by the managers every time they committed the entry, we cannot agree with the counsels' argument that the infringement of legal interests caused by the accused is extremely minor. 3(1) The counsels argue that charging the accused with the crime set forth in the first sentence of Article 130 of the Penal Code for what they have done contravenes Article 21, paragraph (1) of the Constitution. (2) It is true that freedom of expression must be respected as an especially important right in democratic society, and the accused's act of distributing leaflets on which their political opinions are stated can be regarded as their exercise of freedom of expression. However, Article 21, paragraph (1) of the Constitution does not guarantee freedom of expression absolutely unconditionally, but rather it allows necessary and reasonable restrictions for public welfare, and therefore even an expression used as a means for presenting a person's own thoughts to outside is unacceptable if it unduly infringes another person's right (See 1984 (A) No. 206, judgment of the Third Petty Bench of the Supreme Court of December 18, 1984, Keishu Vol. 38, No. 12, at 3026). In this case, the point at issue is not the constitutionality of punishing the expression itself but the constitutionality of punishing the act of entering the "premises guarded by another person" without permission of the manager in order to distribute the leaflets, a means of expression. The places where the accused entered are the common areas of the housing complex where the officials of the Defense Agency and their families spend daily life and the site of such housing complex. These places were under the management of the SDF and Defense Agency authorities for such purpose, and the public has no free access to these places. Where a person enters such places against the will of the manager, even for the purpose of exercising freedom of expression, we should say that such entry not only infringes the manager's right of management but also disturbs peace in the private life of people who spend daily life there. In consequence, charging the accused with the crime set forth in the first sentence of Article 130 of the Penal Code for what they have done does not contravene Article 21, paragraph (1) of the Constitution. This reasoning is obvious in light of the judicial precedents of this court (1966 (A) No. 536, judgment of the Grand Bench of the Supreme Court of December 18, 1968, Keishu Vol. 22, No. 13, at 1549, 1967 (A) No. 1626, judgment of the Grand Bench of the Supreme Court of June 17, 1970, Keishu Vol. 24, No. 6, at 280). The counsels' argument is groundless. II. Concerning other reasons Other reasons for final appeal, including those alleging a violation of the Constitution and violations of judicial precedents, are in effect assertions of unappealable violations of laws and regulations or errors in fact-finding, and none of them can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure. Therefore, according to Article 408 of the Code of Criminal Procedure, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice IMAI Isao Justice TSUNO Osamu Justice NAKAGAWA Ryoji