Complaint Presented by Japan Confederation of Railway Workers’ Unions

Investigation Report

February 4, 2005

Japan Federation of Bar Associations Human Rights Protection Committee

The Japan Federation of Bar Association, JFBA, hereby releases this examination report regarding the case of a complaint asking redress for violations of human rights（Case No. 23, 2002）presented by the Japan Confederation of Railway Workers’ Unions (hereinafter referred to as JRU) as follows.

I Conclusion

JFBA deems it appropriate to issue a warning about the searches and seizures conducted on Nov.1, 6, 9, 12, 14 and 17, 2002, on charges of coercion against suspects Kunio Yanaji, Satoru Yamada, Jyun-ichi Uehara, Shuichi Saito, Kakunori Oguro, Tomio Yatsuda and Keiitsu Ohma, as described in the Warning Letter.

II Content of the Complaint

The Public Safety Bureau of the Tokyo Metropolitan Police Department searched a total of 64 locations in 6 prefectures in the Kanto area, and confiscated a total of 1094 items to investigate the charges of coercion allegedly committed by the suspects, Kunio Yanaji, Satoru Yamada, Jyun-ichi Uehara, Shuichi Saito, Kakunori Oguro, Tomio Yatsuda and Keiitsu Ohma, from Jan. 21, 2001 to the end of June of that year.

 Though the alleged case of coercion took place at JR Urawa Electric Train Depot in Saitama prefecture, the 64 locations subjected to searches included the following, which are not related to the East Japan Railway Union (hereinafter referred to as JREU) an affiliate of JRU, Omiya District Headquarters or its subordinate branches: 7 sub-branch offices, 3 company facilities of JR Tokyo Regional Office and 24 residences of JREU and Tokyo District Headquarters officers, including searches of their persons and automobiles. The 1094 confiscated items included 14 accounting documents of the union, 96 lists of names and addresses, 11 documents related to a civic group named “Peace Constitution League” (Kyujoren in Japanese), 22 documents related to the monthly magazine Shizen to Ningen (Humans and nature), and 33 items such as videotapes and documents related to QC activities and OJT. Only 50 or so of the items concerned the allegation. Nearly all items were union related or private. Moreover, the MPD condemned the “Peace Constitution League“ as an organization involved with the Kakumaru (Revolutionary Marxist Faction) political sect, which it regards as an extremist organization, and confiscated its membership list.

 In summary, the Public Safety Bureau of the Tokyo Metropolitan Police Department regarded this case as an organizational one involving the Kakumaru sect, and carried out its searches and seizures. Therefore the complainant (JRU) demands a redress of human rights.

III Process of the Examination

Dec. 12, 2002 Complaint made to the JFBA for the redress of human rights
Mar. 6, 2003 Delegation of the preliminary examination to the second working group
Mar. 24 Hearing from complainant and counsel
Apr. 22 Submission of additional documents from the complainant
May 22 Report of preliminary examination (determination of start of Examination)
Jul. 11 Hearing from the complainants
Jul. 28 Commission held on the case Aug. 20 Commission held on the case
Sep. 1 Hearing from the complainant
Feb. 10, 2004 Letter of inquiry sent to the MPD (indicating 221 items out of the seizure list and asking for an explanation of the relevance of each) No reply from the MPD
Jun. 29 Additional inquiry made to the complainant
Jul. 6 Submission of written response from the complainant
Sep. 28 Letter of re-inquiry sent to the MPD, and letter of inquiry sent to the Tokyo Public Safety Commission
Oct. 18 Response paper submitted by the MPD and the TPSC

IV Supporting Data and Inquiry to the MPD

1. The documents submitted from the complainant are as follows.

(1) List of confiscated items issued by the MPD
(2) Items seized in the search and seizure warrant (memo)
(3) Indictment warrant
(4) Opening statement
(5) Actual samples of the seized publications
(6) List of items returned

2. Inquiry to the MPD and its answer

(1) On Feb. 10, 2004, the committee asked the MPD to give an explanation of the relevance to the case of 221 out of the attached list of confiscated items. However, the MPD gave no reply.

(2) On Sep. 28, 2004, the committee asked again for an answer to the assertion of the complainant that the searches and seizures had no relevance to the case. On Oct. 18, the MPD gave the following answer, “We decline to answer since this case is now ongoing. The search and seizure was legally implemented based on the Code of Criminal Procedure.” There were no further comments.

(3) The Tokyo Public Safety Commission has jurisdiction to exercise control over the MPD and can make Tokyo Public Safety Commission rules regarding affairs under its jurisdiction, in accordance with the delegation of laws and ordinances. Consequently, on Sep. 28, the committee asked the Tokyo Public Safety Commission to clarify its grasp of the searches and seizures, clarify whether or not it had exercised command over the MPD using its administrative power, and to give its opinion on the searches and seizures. In response, on Oct. 18, the Tokyo Public Safety Commission released the following answer: “The Tokyo Public Safety Commission received notification from the MPD in a meeting of Nov, 8, 2002 that the MPD had arrested JREU member suspects on charges of coercion and carried out searches and seizures. The MPD, opinion was that the searches and seizures were legally implemented based on the Code of Criminal Procedure.”

V Recognized Facts

1. Issuance of a warrant for search and seizure

The MPD requested a search and seizure warrant on charges of coercion against suspects Kunio Yanaji, Satoru Yamada, Jyun-ichi Uehara, Shuichi Saito, Kakunori Oguro, Tomio Yatsuda, and Keiitsu Ohma to the Tokyo Summary Court on October 31, 2002. In response to the above request, the judge of the Tokyo Summary Court, Moritoshi Johma, issued a search and seizure warrant on the same day.

2. Name of the charge described in the search and seizure warrant and the allegation

The contents of this search and seizure warrant are unknown, as the MPD has not disclosed it. However, according to the record of search and seizure released during the criminal proceedings, it could be determined that the name of the charge described in the search and seizure warrant was coercion.

 In addition, the allegation is not specified in a search and seizure warrant (Article 219, Code of Criminal Procedure), and the arrest warrant and detention warrant were not issued through this procedure. However, it is likely that the allegation was actually the same as the facts constituting the offense charged as written in the indictment of the alleged coercion case against the seven above-mentioned suspects, including Kunio Yanaji, which can be acknowledged to be as follows:

 The suspects are Kunio Yanaji (vice president of Omiya District Headquarters of JREU), Satoru Yamada (secretary general of the Youth Group in Omiya District Headquarters), Jyun-ichi Uehara (president of the sub-branch of Urawa Electric Train Depot in Omiya District Headquarters), Shuichi Saito, (planning member of the said sub-branch), Kakunori Oguro (organizing member of the said sub-branch), Tomio Yatsuda (accounting auditor of the said sub-branch), and Keiitsu Ohma (a member of the said sub-branch). The victim is Mitsuharu Yoshida (29 years old at the time of the incident), a train driver of the sub-branch of Urawa Electric Train Depot, and a member of the sub-branch of Urawa JR Electric Train Depot of Omiya District headquarters in JREU). It is alleged that the victim went to a camp with members of a rival labor union, and made a false excuse regarding the reasons. The accused criticized the victim and made plans to force the victim to withdraw from JREU and resign from JR-East, while conspiring with other union members, from January 21 until the end of June 2001. In the JR-East Omiya sub-branch of Urawa Electric Train Depot Office (3-51-1 Minamiurawa Saitama City, Saitama prefecture) and in the JR-East Urawa Station Conductors’ office located at the bottom of the east stairs (2-37-3 Minamiurawa, Saitama City, Saitama Prefecture), etc, on approximately 14 occasions, the accused reportedly yelled at the victim, indicating threats from a member of people, such as, “You should leave our union. Leaving our union means leaving the company, too. I will not resort to violence. But remember that there is verbal violence in JREU. I am a Kakumaru sect member. Do not think that it’s over now. I will do this every time I see you. I will do this until you get tired of it and leave the company. It isn’t only me. Everybody says that they cannot work with you. We will continue to pressure you in the workplace. It will continue until one of us is gone. We will never talk to you. Be prepared, because we have no intention to let up. We’ll never forgive you. You even became sick, didn’t you? You should think about your own future.” They allegedly demanded Yoshida’s withdrawal from the union and resignation from JR-East, and if he did not, threatened him with the possibility of harm to his body, freedom and reputation. Eventually on February 28 of the same year, in the 3F training room in the sub-branch of Urawa Electric Train Depot office, the accused forced Yoshida to prepare and submit a request for withdrawal from the union forwarded to the president of JREU, and on July 13 of the same year, a request for his resignation was forwarded to the president of JR-East in the 2F district chief room of the same office. Thus, the victim was dismissed from his duties.

3. “Places to be searched and items to be seized” written in this search and seizure warrant

“Places to be searched and items to be seized” have to be specified on a search and seizure warrant, but the warrant was not disclosed, so the contents are unknown. However, with regard to “items to be seized,” members of the complainant submitted notes in which they had copied the contents of the search and seizure warrant during domiciliary searches in Urawa Electric Train Depot and other premises. The “items to be seized” were listed in detail and are almost in accord with the items that were actually seized; furthermore, there is no evidence to contradict them. Therefore, they can be considered to be credible. It can be acknowledged that the items are as defined as the “Items to be seized” in Exhibit 1. As “places to be searched” can be supposed to be the same as the places actually searched, it can be acknowledged that the places are as defined as “List of domiciliary places searched” in Exhibit 2.

4. Implementation of the searches and seizures

The Public Safety Bureau of the MPD carried out domiciliary searches at 64 locations listed in the “List of domiciliary places searched” in Exhibit 2 on November 1, 6, 9, 12, 14 and 17, 2002 based on this case’s search and seizure warrant. As a result, it seized a total of 1094 items as listed in (1) and (64) of “List of seized items” in Exhibit 3.

5. Requests for use of seized items as evidence in the trial for alleged coercion

In the trial on charges of coercion, the prosecutor’s presentation of evidence was finished as of November 2004. However, the prosecutor requested only 50 items as evidence from among the 1094 items seized during the searches and seizures (In fact there were 55 pieces of evidence, because several were taken from 1 seized item). Among them, requests for 5 items were dismissed and the request for 1 item was withdrawn. However, even though more than two years have passed since the search and seizure, only 546 items have been returned, only about one half of the seized items. (It is surprising that 446 items, accounting for most of the returned items, were only returned in April 2004 and January 2005.)

VI Conclusion of the Committee

1. Problems of the case

The question at hand is whether the request for a search and seizure warrant constitutes a breach of the Constitution and the law or not, and whether the seizure based on the search and seizure warrant constitutes a breach of the Constitution and the law or not.

2. The MPD’s request to issue a search and seizure warrant for this case

(1) Relationship of the seizures to the allegations
A charge must be specified on a search and seizure warrant (Article 219, Code of Criminal Procedure). The reason why the Code of Criminal Procedure requires the specification of a charge, although the Constitution does not, is to make it clear that the warrant is issued based on reasonable grounds under Article 35 of the Constitution, by showing that based on materials submitted by the investigator, the judge recognizes the suspicion of the charge, deems that items that ought to be seized exist in particular places, and confirms the necessity of the compulsory search and seizure measure.

 Therefore, items subject to a search and seizure warrant must bear a relationship to the specified allegation cited as the name of a charge in the warrant.

 In such a case, not only items proving the allegation directly, but also indirect evidence and evidence of mitigating circumstances must bear a relationship to the charge. Generally, the extent of relevance among direct, indirect and mitigating circumstances is in descending order, as is the necessity of seizure.

 A judicial precedent of the Supreme Court states as follows: “A warrant should not be issued when no clear need is recognized for seizure after considering the form and severity of the crime, value and importance of the confiscated items as evidence, possibility that the items will be destroyed or concealed, extent of inconvenience the seizure will impose on the person, and various other factors” (Collection of Supreme Court rulings, March 18, 1969, vol. 23, no. 3, p. 153). In this ruling, “value and importance of the confiscated items as evidence” refers to the extent of relevance of the items as evidence. Thus, when a search and seizure warrant for a certain item is issued, the item needs to bear a relationship to the allegation. Moreover, the relevance should be strong enough to satisfy the minimum necessity of seizure indicated in the Supreme Court ruling (Yu Tamiya, ed., Keiji sosho ho (Code of criminal procedure), p. 379)).

 When the objects of seizure constitute indirect evidence or evidence of mitigating circumstances, the extent of their relevance should be considered carefully according to the above-mentioned points (Shiro Sasaki et al., eds., Zoho reijo kihon mondai (Basic problem of warrants, expanded edition), p. 213).

(2) Necessity of seizure Article 219 of Code of Criminal Procedure requires as a condition for search and seizure, “the necessity of a criminal investigation.” As noted above, the Supreme Court ruling states: “A warrant should not be issued when no clear need is recognized for a seizure after considering the form and severity of the crime, value and importance of the confiscated items as evidence, possibility that the items will be destroyed or concealed, extent of inconvenience the seizure will impose on the person, and various other factors” (Collection of Supreme Court rulings, March 18, 1969, vol. 23, no. 3, p. 153).

(3) Searches involving a third party
 Article 102-2 of the Code of Criminal Procedures, as applied in Article 221-1 of the Code, stipulates as follows: “Searches of residences and premises owned by someone other than the defendant are allowed only when the existence of items to be seized is recognized.” Article 156-3 of the Rule of Criminal Procedure stipulates as follows: “A document which recognizes the existence of items to be seized must be submitted along with a request for a warrant to search residences and premises owned by someone other than the defendant.”

(4) Examination
 Regarding (1) and (3) above, the committee has examined whether the request of the search and seizure warrant for this case by the MPD is adequate or not.

(i) The MPD searched not only the union facility where the acts of the allegation occurred, but also a wide range of locations in Tokyo, Yokohama and Odawara. As a result, it seized as many as 1094 items from 64 locations.

 It is recognized that the wide range of locations and items have some relevance to the allegation because coercion into withdrawal from the trade union and resignation from the company were the issues of this case, it was alleged that an organizational criminal act was carried out by the trade union to which the suspects belonged, and there was a need to clarify the background. Therefore, it could be seen as reasonable to find that these searches and seizures were allowable.

 However, in examining the current warrant, the committee finds as follows:
(a) Considering that the actually searched locations covered an extremely wide area and that every conceivable item (including documents) was actually seized from those locations, it can be surmised that the investigating organization drafted and requested the search and seizure warrant to target every conceivable item and place.
(b) The searches and seizures were carried out more than one year after the alleged case, and it is undeniable that the relationship between the items and the allegation became less important during this time.
(c) Most of the seized items were evidence of indirect or mitigating circumstances, and therefore, as noted above, despite the requirement to consider the extent of its relevance carefully, it seems unlikely that the MPD adopted a cautious attitude in judging the relevance between the seized items and the allegation individually and specifically. Regarding these facts, it is difficult to say that the search and seizure warrant of the MPD and at least the seized items to which the complainant referred met the requirements for (1) above.

(ii) Regarding the necessity for the searches and seizures, as noted in above, it can be surmised that items which had little “value and importance as evidence” were actually seized. Also, the crime of coercion can be punished with imprisonment of up to 3 years, while theft can be punished with imprisonment of up to 10 years, and although crimes cannot be simply compared by the statutory penalty, in fact such wide-ranging searches and seizures would not normally be recognized as necessary even in a case involving charges of theft. Thus, it is questionable whether these wide searches and seizures were really necessary.

(iii) As previously mentioned, this searches and seizures covered third party locations. In addition to the Omiya District Headquarters itself, to which the suspects belonged, and its subordinate branches, the following union premises were searched:

- Headquarters of JREU
- Tokyo District Headquarters of JREU
- Tokyo Branch Office of JREU
- Marunouchi Train Conductors’ Office of JREU
- Yokohama District Headquarters of JREU
- Odawara Branch Office of JREU

In addition, 38 third-party residences and 3 lockers other than those of the suspects were subjected to search and seizure. Most of the individuals whose residences or lockers were searched were simply serving as union officers, and were not present at the scene of the alleged coercion.

 Also, in this case, the residence of JREU Special Advisor Akira Matsuzaki was searched and he was physically interrogated at Ikebukuro Police Office. This story was reported by the media, which was lying in wait for him, as if they had known about it beforehand.

 As mentioned above, these searches and seizures were carried out under a warrant to search third-party residences and other locations. When the MPD applied for this warrant, the existence of the items to be seized should have been recognized. And the allegation in this case was coercion. It is difficult to conclude that the MPD was in a position where it could recognize pertinent evidence over such a wide-ranging area.

 In actuality, the written opening statement in the criminal trial made reference to union members who belonged to Tokyo District Headquarters and Yokohama District Headquarters of JREU, but these individuals were not mentioned with regard to the acts of the crime and the other locations were not even referred to.

 As mentioned above, the number of items requested for use as evidence was very small. From these facts, we conclude that the request did not meet the requirement of (2) above.

(5) Conclusion As mentioned above, the MPD’s request for this search and seizure warrant was illegal because it did not meet the necessary requirements.

3. The MPD’s seizures, based on the search and seizure warrant

(1) Can it be said that among the seized items there were items that did not satisfy the “items to be seized” written in the warrant”? The question here is whether there were items that could not be considered to “have a relation in terms of process, cause, motion, purpose, measures, methods, complicity or background to the allegation” specified in the beginning of Exhibit 1, “Items to be seized.”

(2) On this point, it should be asked whether the MPD expanded its operation to seize discriminately and comprehensively, and immediately brought a large amount of items without respect to relevancy using warrants showing many items to be seized. At least we can say that items without any direct connection to the allegation must be excluded from those considered to be relevant (Shirou Sasaki et al., eds., Zoho reijo kihon mondai (Basic problem of warrants, expanded edition), p. 251.

(3) Examining this case, it can be concluded that at least the following confiscated items have little relevance to the allegation.
-Name lists of district headquarters of JREU other than Urawa Electric Train Depot Sub-branch of Saitama Branch affiliated to Omiya District Headquarters of JREU
-List of JREU Headquarters members
-List of executive members of District Headquarters, 2002 (At the very least, it is difficult to see any rational reason for confiscating the name and address lists of any District Headquarters other than Omiya)
-Name list of people attending the “Nov. 26 Afghanistan Charity Concert”
-List of the graduates of the first general course of the driving department

The seized items also included accounting documents of JREU, which cannot be considered to have a close relationship to the allegation.

 As mentioned by the complainant, items such as documents of the “Peace Constitution League” (Kyujoren), copies of the monthly magazine Shizen to Ningen (Humans and nature), videotapes and documents of QC activities and OJT, the union textbook Matchan no Terakoya Chingin Banashi and a book Nihon ni okeru han-Sutarinshugi undo I (The anti-Stalinist movement in Japan, vol. 1) have no relation to the allegation. Furthermore, these books are not difficult to acquire.

 Although the JFBA inquired an explanation of the relevancy of the above items to the MPD, it received no response. In consideration of this point, we conclude that the seized items cannot be considered to have “any relation in terms of process, cause, motion, purpose, measures and methods, complicity and background to the allegation” and that the seizures based on the search and seizure warrant were illegal.

4. Violation of human rights

(1) Article 35 of the Constitution stipulates that all persons have the right to be secure in their homes, papers and effects. Moreover, the International Covenant on Civil and Political Right stipulates in Article 17 –1 that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation,” and in Article 17-2 that “Everyone has the right to the protection of the law against such interference or attacks.”

 Thus, because searches and seizures have the potential to violate the domain of livelihood of individuals, they should only be permitted under strict controls based on a warrant, within the limits specified by the necessity for investigating the case.

(2) However, as mentioned above, both the request for the warrant by the MPD and the searches and seizures carried out under this warrant targeted locations and items far beyond the necessary bounds of the investigation. Accordingly, it can be said that most of this search and seizure was implemented not to prove the allegation, but rather to investigate the complainant’s organizational relations and grasp its activities for a different purpose. Therefore these MPD’s operations constitute a violation of Article 35 of the Constitution and Article 17-1 of the International Covenant on Civil and Political Rights.

(3) In addition, the special characteristic of this case is that it involves a trade union, nearly all the locations subjected to searches were union premises and officers’ residences, and the confiscated items included internal documents such as conference minutes, meeting records, messages and communications. They even included lists of union members and officers. This implies the risk of it constituting a violation of basic labor rights stipulated in Article 28 of the Constitution as well as in the Labor Union Law.

(4) On Nov. 17, 2004, the ILO made the following recommendations to the Japanese Government: “Noting that the search and seizure against the complainant trade union and its members has apparently ceased, the Committee requests the Government to take all necessary measures to ensure that any remaining confiscated items which do not have a direct connection to the facts of the case are immediately returned to the complainant.” (5) As previously noted, the search and seizure warrant was issued by Moritoshi Shiroma, a judge of Tokyo Summary Court. It is very deplorable that these searches and seizures, involving violations of human rights, were carried out based on a warrant issued by a judge who should be a guardian of the law. In this case, the warrant was issued to permit a wide-ranging search, and the warrant listed a wide range of items to be seized. From the viewpoint of the earlier mentioned Supreme Court precedent (Collection of Supreme Court rulings, March 18, 1969, vol. 23, no. 3, p. 153), this action is extremely questionable, and leads to grave concern that judicial judgments on the issuance of warrants may have become a dead letter. However, even if the warrant was issued through proper judicial judgment, this does not in any way reduce or eliminate the responsibility of the investigators who enforced the searches and seizures. Although the searches and seizures in this case were based on a warrant, this does not exempt the MPD from responsibility.

5. Rash of similar cases by the Public Safety Bureau of the MPD
(1) The JFBA issued a warning letter regarding the search by the MPD’s Public Safety Bureau in the case of Aum Shinrikyo (a religious group, at present called Aleph) (Apr. 28, 2004, communications of JFBA No. 1).

 “A series of searches and seizures were carried out beginning on May 29 not to find evidence of the allegation, but to reveal the complainant’s organizational relationships and grasp its activities for a different purpose. Therefore, with regard to the seizure of a tremendous number of fliers and other items, these operations of the MPD not only violated Article 35 of the Constitution, but also trampled on the rights and freedom of the complainant and its members, from freedom of expression downward. It can be said that these constituted significant violations of human rights.

(2) It is deplorable that despite the foresaid warning, the Public Safety Bureau of the MPD repeated similar violations of human rights in this case. Therefore, a warning is strongly needed once again.

VII Summary

As mentioned above, the committee concludes that the complaint against the MPD is reasonable. Considering that the MPD has carried out similar acts repeatedly and has made no serious response to inquiries on this case, the committee has reached the conclusion written at the beginning of this report.

As mentioned above, the committee concludes that the complaint against the MPD is reasonable. Considering that the MPD has carried out similar acts repeatedly and has made no serious response to inquiries on this case, the committee has reached the conclusion written at the beginning of this report.

*This document is translated by JRU International Office.