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Comment on the Ruling on GPS Investigation made by the Grand Bench of the Supreme Court

Earlier today, March 15, 2017, the Grand Bench of the Supreme Court handed down a remarkable ruling at the final appeal in a case over the legality of police investigations using GPS tracking devices.  The Supreme Court stated that GPS investigations constitute a compulsory disposition (*) and those conducted without obtaining a warrant are illegal, and it is therefore necessary to enact legislation in such area so that it conforms with the principles prescribed in the Constitution of Japan and the Code of Criminal Procedure.

While the Osaka District Court ruled at the first instance that the GPS investigation conducted in this case could be recognized as a compulsory disposition considering the severe human rights infringement against the drivers of the cars tracked with GPS tracking devices installed for investigation, the Osaka High Court in the prior instance held that there was no serious violation of the law in the use of GPS tracking devices for investigation in this case, and couldn’t admit the interpretation claimed by the defense lawyer that the GPS investigation constituted a breach of the legal principle that compulsory disposition cannot be lawfully conducted without legal grounds, regardless of the presence or absence of warrants.

On the other hand, based on the interpretation of Article 35 of the Constitution (**) that the right to be secure is not literally limited to “homes, papers and effects” against entries, searches and seizures, but also includes the right not to be “intruded” upon in equivalent private spaces, today’s ruling showed that an investigation utilizing GPS, which is an investigation method that secretly attaches a device which is capable of infringing upon an individual’s privacy and intrudes upon his/her private space (presumably) against his/her will, constitutes a compulsory disposition which, according to the Criminal Procedure Code, cannot be applied without any provisions provided as a legal basis due to possible suppression of the individual’s will and violation of the individual’s fundamental interests guaranteed under the Constitution.

Further, today’s court decision ruled that obtaining a warrant for inspection under the Criminal Procedure Act in conducting GPS investigations can still raise a concern in terms of guaranteeing due process based on the following reasons: GPS investigation (i) traces the locations of subject vehicles and drivers by attaching GPS tracking devices to their vehicles; (ii) cannot exclude location information irrelevant to the case under investigation even if the charged offense and the vehicles to which GPS tracking devices are attached are specified; and (iii) is not supposed to be conducted after presenting a warrant, and no other means under the current system work as an alternative in which fairness is ensured. Thus, the court indicated that some legislative actions reflecting the characteristics of GPS investigation should be taken in accordance with the principles laid down in the Constitution and the Criminal Procedure Act.

The Japan Federation of Bar Association (JFBA) expressed its opinion in the “Opinion Concerning Police Investigation Using GPS-Tracking Devices for Searching Individuals' Locations” dated January 19, 2017, in which it stated that the National Police Agency should immediately halt its GPS investigations, and that it is necessary to prescribe certain conditions and proceedings by law to avoid unfairly violating the right to privacy of those who are under investigation.  Such perspective by the JFBA is well in line with today’s court decision, and the JFBA highly evaluates such decision with respect to both the facts that GPS investigation has been recognized as a compulsory disposition and the need for new legislative measures has been admitted.

The JFBA will further direct its efforts to address the legislation of a special act that stipulates certain conditions and specific procedures to ensure that GPS investigation shall be conducted under a warrant issued by a judge following strict examination thereby.

Article 197 (1) of the Code of Criminal Procedure provides as follows:
With regard to investigation, such examination as is necessary to achieve its objective may be conducted; provided, however, that compulsory dispositions shall not be applied unless special provisions have been established in this Code.

Article 35 (1) of the Constitution provides as follows:
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 and particularly describing the place to be searched and things to be seized, or except as provided by Article 33.

March 15, 2017
Kazuhiro Nakamoto
Japan Federation of Bar Associations




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