Date of the judgment1972.12.20
Case number 1970(A)No.1700


Judgment on speedy trials

Date of the judgment: 1972.12.20.

Case number: 1970(A)No.1700

Reporter: Keishu Vol.26, No.10, at 631

Title: Judgment on speedy trials

Result: Reversed without remand to the lower court
Court of prior instance: Nagoya High Court
Type of court, decision: Grand Bench, judgment

Summary

1) Article 37, paragraph 1 of the Constitution not only demands that legislative and judicial administration measures required for the general guarantee of speedy trials be taken.  In connection with individual criminal cases, it goes on to stipulate that when an extraordinary situation arises that clearly violates this guarantee in practice and, as a consequence of a conspicuous delay in proceedings, it is deemed that the right of the defendant to a speedy trial has been violated, extraordinary remedial measures must be taken in the form of termination of legal hearings.

2) Whether or not a delay in hearings connected with an actual criminal case has resulted in a situation that violates the provisions guaranteeing a speedy trial should not be judged uniformly on the length of the term of delay.  The decision must be taken on the basis of a comprehensive evaluation of any and all situations taking account of whether or not the delay should be deemed to have been unavoidable, the extent to which the interests protected by the afore-mentioned guarantee clause have been violated in consequence, through considering reasons and causes, etc.  In the case where a long duration is required for the hearings on account of the complexity of the incident, or if the main cause of the delay is attributable to the defendant, such as the absconding of the defendant, his refusal to appear in court, or his deliberate stalling of the hearings, it cannot be said that the right of the defendant to a speedy trial has been violated.

3) In the case where a situation has arisen violating the clause guaranteeing the right to a speedy trial while a criminal case is continuing in a court, a judgment of acquittal should be delivered.

Full text (original text)

1970 (a) 1700

Judgment

An appeal was submitted by each of the defendants in connection with the judgment given by the Nagoya High Court on July 16, 1970.  This Court delivers the following judgment in this connection.

Main text of Judgment

The original judgment shall be reversed.  All the appeals by the public prosecutor shall be dismissed.

Reasons

Concerning the alleged violation of the Constitution or erroneous interpretation of the Constitution in the grounds for acceptance of appeal submitted by the defendants

This Court considers that the right to receive a speedy trial guaranteed by Article 37, paragraph 1 of the Constitution is one of the fundamental human rights guaranteed by the Constitution, and that this clause not only requires the implementation of the legislative and judicial administration measures generally required to guarantee a speedy trial.  Also, in connection with individual criminal cases, in the case where an extraordinary situation has arisen which clearly violates the afore-mentioned guarantee and is deemed to have damaged the right of a defendant to receive a speedy trial as a consequence of a major delay in the trial, although there may be no definite provisions for dealing with the situation, the clause should be interpreted to mean that continuation of procedures in respect of the defendant should not be permitted and emergency relief measures involving termination of the trial should be taken.

In the case where there is a major delay in a trial in connection with a criminal case, leaving a defendant for a long period of time in a state of undetermined guilt or innocence will not only result in him incurring social disadvantages of both tangible and intangible kinds.  As regards the related procedures, it may well be accompanied by decrease or loss of memory on the part of the defendant or of witnesses, death of the parties involved, loss of material evidence, etc., in consequence of which various obstacles will be placed in the path of the defendant's capacity to defend himself, and it may become impossible to achieve the ideals of criminal judicature, namely to clarify the truth of the case, to ensure that the innocent are not punished and that the guilty do not go free, and that penal laws are applied appropriately and speedily.  The clause in the Constitution guaranteeing a speedy trial was instituted precisely to prevent such abuses from occurring.

Of course, a "speedy trial" is a relative concept that must be determined in connection with various conditions applying to specific cases, meaning that, in order to apply to the full the import of the afore-mentioned clause in the Constitution, it is desirable that specific supplementary legislative measures be taken in order to solve the problems.  However, in cases where such legislative measures are not available, when an extraordinary situation arises in which it is deemed that the afore-mentioned guarantee clause is clearly being violated from whatever angle the situation is viewed, to assume that there is no means of relief available on the grounds merely that there are no supplementary legislative measures available to deal with this situation will not realize the import of the afore-mentioned clause.

Therefore, in the case where, as a consequence of a major delay in the hearings, an extraordinary situation has arisen whereby it is deemed that the various interests of the defendant that the Constitution is intended to protect through the clause guaranteeing the right to a speedy trial have been seriously impaired, it will be extremely difficult to uncover the truth even if the hearings are continued, a fair trial can no longer be expected, and any further continuation will be inappropriate in that it will merely have the effect of increasing the damage done to the personal and social interests of the defendant, and under such circumstances the Constitution shall be read to call for extraordinary relief measures to be taken in the form of breaking off the trial procedures at this stage.

Looking back on the instant case, the original judgment was based on the following premise: "Even if at the outset a request was received from the defense counsel for the interruption of the hearings, despite there having been no application subsequently received from a party to the action for haste of the hearings, the fact that no hearings were held for more than fifteen years as a result of which the trial was subject to a major delay can only be described as a violation of the right of a defendant to a speedy trial guaranteed by the Constitution."  On this basis, the judgment went on as follows: "In order to guarantee in a practical manner the right provided for under the Constitution of a defendant in a criminal case to receive a speedy trial, there shall be the prerequisite that specific methods be determined of giving relief to a defendant from the delay in a trial by means of so-called supplementary legislative measures.  However, under the legal system in effect at present, no such supplementary legislative measures have as yet been enacted, and there is no way for the court itself to provide relief."  On the basis of this understanding, the decision in the original judgment to dismiss the judgment of the court of first instance, which acquitted the defendant applying mutatis mutandis to Article 337, item 4 of the Code of Criminal Procedure for the case where the time prescription against public action has expired, and to remand the case to the court of first instance must be described as an erroneous interpretation of the clause guaranteeing the right to a speedy trial contained in Article 37, paragraph 1 of the Constitution.

Let us now examine whether an extraordinary situation under which the clause guaranteeing the right to a speedy trial in the Constitution has indeed been violated in the instant case due to the major delay in the hearings.

Whether or not a situation has arisen in which the delay in hearings in connection with a specific criminal case constitutes a violation of the afore-mentioned guarantee clause is not a matter that can be decided upon uniformly in accordance with the length of the delay alone.  It is a matter that must be decided upon by giving consideration to the causes and reasons for the delay on the basis of a comprehensive assessment of all the conditions applying in a particular case, such as whether the delay should be deemed to have been unavoidable and the extent to which the interests that should be protected by this guarantee clause have actually been damaged.  It goes without saying that a case which has taken a long time merely because of its complexity does not apply in this connection.  Furthermore, in cases where the main reason for the delay in a trial is the absconding of the defendant, his refusal to appear before the court, or a deliberate attempt on his part to delay the proceedings, it should be deemed that the defendant has himself waived the right to receive a speedy trial, and even if a long period of time is required for the trial, this cannot be said to represent an infringement of the defendant's rights.

If a legal action has been instigated through the launch of a prosecution, a court is of course not permitted to leave the case unattended to, but under the lawsuit structure provided for in the current Code of Criminal Procedure, which incorporates the adversary system to a high level, positive lawsuit activities are required of both the public prosecutor and on the defendant's side.  However, in cases where measures to proceed with a lawsuit have not been taken at least until the end of the substantiation by the public prosecutor, even if the defendant's side has not taken any action to go ahead with the hearings by specifying a particular day, etc., this alone cannot be taken to mean that the defendant has waived his right to receive a speedy trial.  The concrete circumstances as indicated in the records of the instant case are as follows.

1) The court of first instance was the Nagoya District Court, Criminal Section No. 3.  Hearings were effectively broken off at the stage of presentation of evidence by the public prosecutor after the 23rd hearing, which took place on June 18, 1953, in the case of the defendant X1 and 25 others, and after the 4th hearing, which took place on March 4, 1954, in the case of the defendant X16 and three others.  There were subsequently no hearings whatsoever for more than 15 years until June 10, 1969 and September 25, 1969.

2) The initial reason that the hearings were broken off was that 20 defendants, out of the total 31 defendants in the case at bar, were indicted in connection with the so-called Osu case, which also occurred at around this time, and since the Osu case was being handled by the Nagoya District Court, Criminal Section No. 1, the defense counsel expressed a desire to have the case consolidated with the Osu case, whereby priority would be given to the Osu case and the instant case would be heard once the hearings in the Osu case were over.  This request was accepted by the court, so that hearings in the instant case were broken off.

3) The Osu case ended on May 28, 1969, but at the stage that hearings involving the case at bar were interrupted, it could not have been predicted by either the court or anyone involved in this action that the hearings in the Osu case would take such a long time.

4) Around 1964, the head of the group of defendants and the defense counsel informed the court that they had no objection to hearings being arranged in connection with the instant case independently of the progress of the Osu case.

5) The so-called Nakamura prefectural tax case, the PX case and the Toko-dori case included five defendants in the instant case who were also defendants in the Osu case.  These cases were being heard at the time by the Nagoya District Court, Criminal Section No. 2.  As with the instant case, the defense counsel applied around 1952 for these cases to be heard together with the Osu case, but Criminal Section No. 2 reserved their decision on this matter and continued with the procedures.  After presentation of all the evidence had been completed around 1956, measures were taken to specify the date of the next hearing with the cases being heard together with the Osu case from the stage of the final arguments of both the prosecutor and the defendants.

6) Despite the break in the hearings being very long, there is no indication of the public prosecutor having actively applied for the hearings to be sped up.

7) During this period there is no record of the defendants either having applied for the hearings to be expedited and they appear to have adopted a negative attitude to this matter, but nor is there any indication of the defendants having absconded or having deliberately attempted to prolong the hearings.

8) In addition, it may be recognized that no reasonable explanation can be found for the fact that the court of first instance was unable to take measures to reopen hearings for such a long period as regards the instant case.  

On the basis of these facts, the effective interruption of hearings in the instant case at the stage of presentation of evidence by the public prosecutor cannot be said to have occurred merely because of a response to the request of the defendants at the outset, and it would be inappropriate to assert that the defendants had been the principle cause of the interruption in the hearings of more than 15 years.  The next matter to be considered is the extent to which the delay in the hearings in the case at bar has actually damaged the afore-mentioned interests of the defendants which are supposed to be guaranteed by the clause guaranteeing the right to a speedy trial.  The records show the following:

1) As regards the so-called Takada case and the so-called Mindan case that form parts of the instant case, there was no presentation of evidence in connection with the concrete actions, etc., of the related defendants until the final presentation of evidence occurring on the date of the 22nd hearing, and there has still been no evidence presented in connection with the related so-called Osugi case and the so-called US Military Barracks case.

2) With regard to the inspections applied for by the public prosecutor of the former Choren Mizuho Branch Office, which is said to be where the conspiracy in connection with the Takada case occurred, and the Aichi Prefectural Headquarters Office of the Republic of Korea Residents Association, where the crime in the Mindan case took place, the applications were withdrawn because of the disappearance of both offices, and there is a danger that changes in geographical conditions and the loss of evidence will mean that evidence that might be beneficial to the defendants cannot be used.

3) With the lapse of such a long period of time, the memories not only of eyewitnesses and alibi witness but also of the defendants themselves will have become vague and uncertain, and even if witnesses and the defendants were to be questioned, it would be extremely difficult to obtain accurate testimony.

4) With regard to the testimonies of the defendants provided to the public prosecutor, the defendants challenged from the outset the voluntary nature of every aspect of the testimony, and, in connection with judgment of whether or not the testimony had been provided on a voluntary basis, several defendants asserted that violence and threats had been used toward them by the investigating police officers.  But now that such a long time has passed since the investigation was performed, it is extremely doubtful whether any facts could be ascertained even if the police officers were submitted to a witness examination, and any judgment on the points at issue would most likely be very difficult.  Accordingly, if Nagoya District Court, Criminal Section No. 3, which was the court of first instance, had employed the same method of hearings as the afore-mentioned Criminal Section No. 2 in connection with the instant case, and, after investigating all the evidence, had decided to consolidate the case with the Osu case at the stage of the closing statement and had specified a date for the next hearing, it would have been possible to prevent most of the negative effects on the interests of the defendants, but as a consequence of a long period of time having elapsed without such measures having been taken, the defendants must be said to have incurred a high degree of disadvantage both legally and socially.  Such being the circumstances, it cannot be said that the defendants have themselves waived their right to a speedy trial, and it must be acknowledged that the various interests of the defendants that must be protected on the basis of the clause guaranteeing the right to a speedy trial have been effectively compromised, and it must be concluded also that an extraordinary situation that clearly contradicts the clause in Article 37, paragraph 1 of the Constitution guaranteeing a speedy trial had already come into existence at the time that procedures for reopening the hearings were taken by the court of first instance in 1969.  Accordingly, in light of the purport explained at the outset as well, this clearly constitutes a case in which extraordinary relief measures to terminate hearings in respect to the defendants need to be applied.  In the case where a situation arises violating the clause guaranteeing the right to a speedy trial while a criminal case is still being heard by a court, there are no clear stipulations under current law regarding methods for terminating hearings, but in a case such as the case at bar in which the progress of the hearings is as has been described, it would not be appropriate to continue the hearings any further, and the appropriate course of action is to deliver a judgment acquitting the case.  Accordingly, the original judgment contrary to this must be reversed in accordance with Article 410, paragraph 1 of the Code of Criminal Procedure without making any assessments of the other arguments of grounds for acceptance of appeal submitted by each defendant.  Since the judgment of the court of first instance in the case at bar acquitting the case was correct in its conclusions, the appeal of the public prosecutor with regard to the defendants is dismissed in accordance with the proviso to Article 413, Article 414, and Article 396 of the Code of Criminal Procedure.  A judgment is therefore made in accordance with the Main Text on the unanimous opinion of the Justices, with a dissenting opinion expressed by Justice Buichi Amano.

Justice Buichi Amano filed a dissenting opinion as follows.

With regard to interpretation of Article 37, paragraph 1 of the Constitution to the effect that this clause guarantees the right to receive a speedy trial as a fundamental right of the people and that, if a highly extraordinary situation arises in connection with an individual case whereby it is deemed that this clause has been violated, extraordinary measures should be taken to terminate the hearings even without actual supplementary legislative measures, my opinion is the same as the opinion of the Court.  Furthermore, I concur with the opinion of the Court that there may be times when acquitting the defendant may, on the basis of the current legal system, be an appropriate method for terminating hearings in the case where such a situation arises while criminal procedures are under way in a court.  In addition, in the light of the cost and benefit of the legal action, I cannot but agree with the opinion of the Court that, bearing in mind that three years and several months have elapsed since the pronouncement of the court of first instance, the judgment of acquittal delivered by the court of first instance should be affirmed by applying such a principle to the instant case, so that this delayed trial can be finally closed. However, I believe that a trial in which hearings are abandoned above and beyond the stipulations concerning the acquittal of a case listed in Article 337 of the Code of Criminal Procedure constitutes an abnegation of the intention of the court to conduct a trial of substance, and that, under the Constitution, such a measure should be permitted as an extraordinary method only under the most extreme conditions.  The opinion of the Court is based exclusively on the facts appearing in the record and, having presumed that the cause for the delay in the hearings in this case cannot be attributed to the defendants, it is assumed that actual damage against the interests of the defendants has been caused by this delay, and on this basis the judgment of the court of first instance acquitting the case should be affirmed.  I believe therefore that such a judgment is premature and that the matter should be decided upon more circumspectly after checking on whether or not there are any facts that might serve to overturn the above assumption.  In other words, there are still indeterminate factors involved if one employs only the evaluation materials referred to in the opinion of the Court, and it is quite impossible to act in accordance with the purposes of criminal justice, which are intended to clarify the true circumstances involved in a case and to apply and realize the penal laws in an appropriate manner.  In the instant case, in connection with the facts relating to attribution of the main causes for the delay in the hearings and whether or not the defendants have incurred disadvantages and, if they have, the extent of these disadvantages as a consequence of the delay, it is necessary to proceed with investigations aimed at clarifying the situation and to decide on the measures to be taken with regard to the action on the basis of an empirical assessment based on a comprehensive view incorporating connections with the actual state of public hearings involving similar contemporary cases.  If the results obtained thereby were the same as the conclusions reached in the opinion of the Court, I would give them my full approval.

Accordingly, although I agree with the opinion of the Court concerning reversal of the original judgment, my conclusions differ there from in that I believe that the instant case should be remanded to the original court in accordance with the first paragraph of Article 413 of the Code of Criminal Procedure in order to conduct all the necessary investigations to discover whether or not there are any facts that might undermine the assumptions expressed in the opinion of the Court.  I would like to go on to explain my reasons in further detail.

1. As made clear in the opinion of the Court, the decision on whether the delay in a lawsuit connected with a specific criminal case does or does not infringe the clause guaranteeing a speedy trial as provided for in Article 37, paragraph 1 of the Constitution must be determined comprehensively so as to take account of the length of the delay and the causes and reasons for the delay and considering all other circumstances involved, such as whether the delay was unavoidable and the extent to which the various rights that the clause guaranteeing a speedy trial are intended to protect have in practice been violated.  This is a not a matter that depends exclusively on the length of time that has passed.  (See also Supreme Court 1948 (re) No. 1579, March 12, 1949, judgment of the Second Petty Bench, Keishu Vol. 3, No. 3, p. 293.)  Looking at the four causes in the Code of Criminal Procedure (items 1 to 4 of Article 337 of the Code of Criminal Procedure) in which a judgment of acquittal should be delivered, beginning with "after delivering a final judgment" and going on to "when the statute of limitations comes into effect," each cause is a clearly objective one suitable as an extraordinary means for terminating a trial, and there is no doubt whatsoever about recognition.  Accordingly, there should be extremely rigorous limitations that state that, in order to determine a specific trial situation that violates the clause guaranteeing the right to a speedy trial and to employ this as the grounds for acquitting an action, it must be clearly recognized that circumstances are present corresponding to these conditions and that, from whatever angle they are viewed, the circumstances are such that a legal action of substance is not possible.  I consider that my opinion and the opinion of the Court both affirm this matter.

2. Next, as the background when judging whether a trial involving a criminal case for which prosecution has been brought in a lawful manner actually entails extreme conditions as referred to above, it is necessary to gain an overview of general conditions applying to public hearings involving criminal cases in Japan.  Empirical circumstantial consideration must be given to questions such as to what extent the actual speed of progress of criminal trials corresponds to people's expectations, the approach and attitudes of the parties involved in response to the actual progress of criminal hearings, in particular the subjective and objective causes of obstructions to the progress of hearings in legal actions of the same generic type, various unavoidable conditions such as national characteristics, social conditions, and the structure of legal actions, etc., and other such matters, and, within these considerations, thought must be given to delays in specific actions and the effects that these may have on the interests of the defendant.  Without such considerations, one cannot be expected to reach an appropriate conclusion in line with the actual situation.

3. Looking at a part of the background to this matter on the basis of the case records and the facts clearly given in the case at bar, the so-called Handa Tax Office case and the so-called Aichi University case were at the time being handled by the Nagoya District Court, Criminal Section No. 3, but while these cases were being handled, as far as the instant case was concerned, hearings were effectively interrupted after the 23rd hearing held on June 18, 1953 in the case of 26 defendants and after the 4th hearing held on March 4, 1954 in the case of the other four defendants.  (This interruption originally occurred at the request of the defendants, as has already been mentioned in the opinion of the Court.)  On the other hand, Criminal Section No. 1 was dealing with the so-called Osu Riot case (hereinafter referred to as the "Osu case"), while Criminal Section No. 2 was dealing with the Nagoya Showa Police Station Toko-dori Police Box case (six defendants) and the Nakamura Prefectural Tax Office case and the so-called PX case involving the PX Obiuchi Car Park (total of 15 defendants in both cases).  In each case the situation was that approximately 17 years were required for the hearings until a substantive judgment was received from the court of first instance (including an effective duration of interruption of hearings lasting more than 13 years in the cases other than the Osu case).  The instant case consists in fact of a whole series of cases including the Takada Police Box case, in which he defendants are alleged to have broken into the premises of the former head of the Aichi Prefectural Headquarters of the Republic of Korea Residents Association on June 26, 1952, surged into the Takada Police Box attached to Mizuho Police Station in the vicinity, and thrown rocks and bricks and set fire to the police box by throwing petrol bombs, the Osugi and US Barracks case, in which the defendants are alleged to have made preparation to use petrol bombs to set fire to the Osugi Police Box attached to Kita Police Station in Nagoya and to dormitory facilities employed by the US military forces in the city, and the Mindan case, in which the defendants are alleged to have attempted to set fire using rocks and petrol bombs to the offices of the headquarters of Republic of Korea Residents Association in Aichi Prefecture.  I shall refer to these cases together as "the Takada case."  There were originally 31 defendants in the instant case, and more than 20 of these were also defendants in the afore-mentioned related cases that were being dealt with by other sections of the court of same kind.  Although several similar cases were being dealt with at the same time, it was only Criminal Section No. 3 that delivered a judgment of acquittal (case dismissed in part) on two separate occasions in connection with 29 defendants in the instant case on September 18, 1969 and September 25, 1969.  (This pronouncement was made on dates prior to the delivery of the judgment on the Osu case by Criminal Section No. 1 and the judgment following the break-off of hearings in connection with similar cases by Criminal Section No. 2.)  (In the case of the hearings by the court of first instance in the case at bar, the presiding judge changed during the long period of interruption, and an acquittal judgment was delivered more than three years later after procedures to renew the hearing procedures had been taken.)

4. Looking at this matter in the light of the above facts, in the case of the similar cases being dealt with by the other afore-mentioned sections, it is not possible on the basis of the records of the instant case alone to obtain knowledge of the scale and content of matters that bear a complex relationship with cases that involve several of the same defendants as the instant case or of the state of the hearings themselves, or in connection with various points bearing on the existence and extent, etc., of features shared between the evidence submitted in each case.

According to the opinion of the Court, Criminal Section No. 3, which was the court of first instance in the case at bar, had adopted the same method of hearings as Criminal Section No. 2 in connection with the hearings in the instant case and, after all the evidence had been presented, the case was scheduled to be heard consolidated with the Osu case at the stage of the closing statement.  If dates had been specified for the next hearing, most of the disadvantages befalling the defendants could have been avoided.  However, with regard to the reasons and circumstances that made it impossible for the action procedures indicated in the opinion of the Court to be followed in the case at bar by Criminal Section No. 3 alone, ufficient investigations have still not been conducted to investigate the facts that might clarify the details of this matter, and the opinion of the Court to the effect that the stepwise differences evident between the various interruption measures should be seen as the parting of the ways for deciding on whether or not to adopt the extraordinary procedure of bringing criminal proceedings to a halt lacks adaptability to the reality of the situation for so long as factual matters are not brought to light, and there is no denying that room for doubt still remains.  Similarly, the opinion of the Court concludes that the court of first instance had already entered upon an extraordinary situation involving a clear violation of the guarantee of a speedy trial provided for in Article 37, paragraph 1 of the Constitution, and considers that this corresponds to a case in which the break-off of hearings should be affirmed.  However, with regard to this point, I am unable to subscribe to the opinion of the Court to the effect that there was an extreme situation at this stage under which hearings had to be broken off unless this opinion is based on a judgment resulting from exhaustive investigations to determine whether or not there are facts sufficient to overturn such a presumed judgment.

5. It goes without saying that interest in lawsuits involving criminal procedures include the interests of the defendants, but the interests of the defendants are not the only interests concerned.  Accordingly, the retrieval measures and the relief measures that should be taken in order to make up for delay in a trial should be sought in effective measures for expediting the hearings after the delay, and the will to proceed with a substantive trial should not be arbitrarily lost without any attempt to confirm that the afore-mentioned extreme situation does indeed apply.  Exploring every avenue for the hearings after they have been broken off for many years may prove highly arduous for the court and for everyone else involved in the action, but I would like to add that the court should conduct hearings from its position as the main agent of legal actions, and that it is by so doing that courts should realize the ideals of the criminal justice.

The public prosecutors Masanori Tomita and Akira
Yamamuro participated in the public hearing.

December 20, 1972

Supreme Court, Grand Bench

Presiding judge: Chief Justice ISHIDA Kazuto
                 Justice TANAKA Jiro
                 Justice IROKAWA Kotaro
                 Justice OSUMI Kenichiro
                 Justice MURAKAMI Tomokazu
                 Justice SEKINE Kosato
                 Justice FUJIBAYASHI Ekizo
                 Justice OKAHARA Masao
                 Justice OGAWA Nobuo
                 Justice SHIMODA Takeso
                 Justice KISHI Seiichi
                 Justice AMANO Buichi
                 Justice SAKAMOTO Yoshikatsu

Justice IWATA Makoto is unable to attach his name and
seal due to retirement.
Presiding judge, Justice ISHIDA Kazuto

(* Translated by Judicial Research Foundation)