[Administrative Scrivener Exam] Constitution (Personal Liberty) 22
Personal Liberty
Q: Summarize personal liberty.
1. What is personal liberty?
1. Constitutional basis (Articles 31-40 of the Constitution of Japan)
Article 31 (Guarantee of Due Process): "No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law."
Article 32 (Right of Access to the Courts): "No person shall be denied the right of access to the courts."
Article 33 (Requirements for Arrest): "No person shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offense with which the person is charged, unless he is apprehended, the offense being committed."
Article 34 (Requirements for Detention or Confinement): "No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel."
Article 35 (Inviolability of Home): "The right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause."
Article 36 (Prohibition of Torture and Cruel Punishments): "The infliction of torture by any public officer and cruel punishments are absolutely forbidden."
Article 37 (Rights of Criminal Defendants): "In all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal."
Article 38 (Right Against Self-Incrimination/Admissibility of Confessions): "No person shall be compelled to testify against himself."
Article 39 (Double Jeopardy/Prohibition of Ex Post Facto Laws): "No person shall be held criminally liable for an act which was lawful at the time it was committed."
Article 40 (Compensation for Wrongful Conviction): "Any person, in case he is acquitted after he has been arrested or detained, may sue the State for redress as provided by law."
2. Content of personal liberty
Guarantee of Due Process → Article 31 of the Constitution
Requirements for arrest, detention, and confinement → Articles 33 and 34 of the Constitution
Right to silence and restrictions on the admissibility of confessions → Article 38 of the Constitution
Prohibition of torture and cruel punishments → Article 36 of the Constitution
Right to a trial (due process of law) → Articles 32 and 37 of the Constitution
Compensation system for victims of wrongful conviction → Article 40 of the Constitution
3. Key points for exam preparation
Warrant requirement (Articles 33 and 35 of the Constitution): In principle, a warrant is required for arrest, search, and seizure.
Guarantee of due process (Article 31 of the Constitution): No punishment can be imposed without procedures based on law.
Prohibition of cruel punishments (Article 36 of the Constitution): The constitutionality of the death penalty is a point of contention (Precedent: Death penalty and cruel punishments).
Q: Summarize the precedents. Include the case facts and key points of the judicial opinion. Ensure it is clear: 'Whose,' 'what kind of right,' 'was restricted by whom,' and 'is that permissible?' (Basis, criteria, application).
・Third-party property confiscation case
・Tokushima City Public Safety Ordinance case
・Narita New Law case
・Death penalty and cruel punishments
・Takada case
・Kawasaki Minsho case
1. Third-party property confiscation case (Supreme Court Judgment, March 3, 1948)
[Case Facts]
Based on the provisions of the Penal Code, property owned by a third party that was used in a crime was confiscated.
The third party holding property rights filed an objection, claiming a violation of the Constitution.
[Judicial Opinion]
Whose? → Third party's property rights (Article 29 of the Constitution)
What kind of right? → Right not to have property taken away (property rights)
Restricted by whom? → Confiscation order by the court
Is that permissible? → Unconstitutional (lack of due process)
[Grounds, Standards, and Application]
Violation of Article 31 of the Constitution (Due Process): Infringing on property rights without appropriate procedures is unconstitutional
2. Tokushima City Public Safety Ordinance Case (Supreme Court Judgment, September 10, 1975)
[Case Facts]
Criminal punishment of individuals who held a demonstration without notification based on the Tokushima City Public Safety Ordinance.
[Judgment Summary]
Whose? → Freedom of expression of demonstration participants (Article 21 of the Constitution)
What kind of rights? → Freedom of assembly, association, and expression
Restricted by whom? → Local government (Public Safety Ordinance)
Is that permissible? → Unconstitutional (excessive restriction on freedom of expression)
[Grounds, Standards, and Application]
The public safety ordinance's establishment of a 'permit system' is unconstitutional(excessive restriction of prior restraint)
3. Narita New Law Case (Supreme Court Judgment, July 1, 1992)
[Case Details]
Regulation of obstructionist acts in the Narita Airport opposition movement based on the Narita New Law
[Judgment]
Whose? → Personal liberty of demonstrators (Article 31 of the Constitution)
What kind of right? → The right not to be arrested or punished without due process
Restricted by whom? → Police (Narita New Law)
Is that permissible? → Constitutional (public safety takes priority)
4. Death Penalty and Cruel Punishments (Supreme Court Judgment, March 12, 1948)
[Judgment]
The death penalty itself does not constitute a 'cruel punishment' under Article 36 of the Constitution
However, if the method of execution is inhumane, it could be unconstitutional
5. Takada Case (Supreme Court Judgment, April 14, 1975)
[Judgment]
Coerced confessions occurred, and a guilty verdict based on them is unconstitutional (violation of Article 38 of the Constitution)
6. Kawasaki Minsho Case (Supreme Court Judgment, December 19, 1983)
[Judgment Summary]
A warrantless search conducted in connection with a tax evasion investigation is unconstitutional (violation of Article 35 of the Constitution).
3. Summary for Exam Preparation
There are many judicial precedents concerning due process and the warrant requirement. (e.g., Third-Party Property Confiscation Case, Kawasaki Minsho Case)
The relationship with demonstrations and freedom of expression is also important. (e.g., Tokushima City Public Safety Ordinance Case)
The constitutionality of the death penalty should be checked in relation to Article 36 of the Constitution.