Updated on July 18, 2026
Overview of the Document
Document title:
Judgment in 2011 Wa No. 177, Road Traffic Act Violation Case
Date of pronouncement:
January 16, 2012
Date judgment became final:
January 31, 2012
Issuing body:
Koriyama Branch of the Fukushima District Court
Judge:
Shuichi Nezaki
Case title:
Road Traffic Act Violation Case
Defendant’s occupation:
City council member
Type of document:
Criminal judgment
Publication format:
PDF with personal information and other necessary portions redacted
Original PDF:
Skip to PDF contentFacts Confirmed by This Document
This document is the judgment issued by the Koriyama Branch of the Fukushima District Court on January 16, 2012, in a Road Traffic Act violation case.
→For details on the indictment, see “Indictment by the Koriyama Branch of the Fukushima District Public Prosecutors Office — Facts Charged as Occurring at Around 7:40 p.m.”
The upper right portion of the judgment states that the judgment became final on January 31, 2012.
The case number is 2011 Wa No. 177.
The defendant’s occupation is stated as city council member.
In the main text of the judgment, the defendant was sentenced to imprisonment for one year.
The judgment also states that the execution of that sentence would be suspended for three years from the date on which the judgment became final.
Accordingly, this judgment is a guilty judgment imposing a sentence of one year’s imprisonment with a three-year suspended sentence.
In the facts constituting the offense, the court found that the defendant, while under the influence of alcohol and in a condition in which there was a risk that he would be unable to drive normally due to the effect of alcohol, drove an ordinary passenger vehicle on a road in Sukagawa City, Fukushima Prefecture, at around 7:40 p.m. on October 18, 2011.
In this respect, the judgment adopts the time of around 7:40 p.m. as the time of the accident or driving.
The list of evidence includes the defendant’s statement in open court, the defendant’s statements to the prosecutor and judicial police officers, statements by related persons, investigation reports, the intoxication examination card, and on-site inspection reports.
In the judgment, some names in the statements of related persons are redacted.
A red annotation has been added to the PDF image concerning the redacted portions.
This red annotation is not part of the judgment text itself, but is an explanatory note concerning the position of the document.
In the application of law, the defendant’s conduct was found to fall under Article 117-2, Item 1, and Article 65, Paragraph 1 of the Road Traffic Act, and imprisonment was selected as the applicable punishment.
The judgment then applied Article 25, Paragraph 1 of the Penal Code in light of the circumstances, suspending execution of the sentence for three years from the date on which the judgment became final.
In the circumstances specifically considered in sentencing, the judgment found that the defendant drank a considerable amount of alcohol at a restaurant with fellow city council members and, despite recognizing that he was intoxicated, drove himself home and committed the offense.
The judgment stated that the circumstances leading to the offense were extremely careless and left no room for leniency.
The defendant had cited circumstances such as being more intoxicated than usual because he was on a diet and the driving service not arriving. However, the judgment stated that drinking in accordance with one’s own physical condition was the defendant’s own responsibility, and that, regarding the driving service, the defendant had failed to correctly convey the parking location and had begun driving himself without sufficiently communicating with the service. The judgment therefore found that these circumstances could not be considered in the defendant’s favor.
The judgment further stated that the alcohol concentration detected after the offense reached 0.71 milligrams per liter of the defendant’s breath, and that the defendant was found to have been so intoxicated that he was unable to perform driving operations properly, as shown by the fact that he caused an accident by colliding with a guardrail. The judgment therefore found that the manner of the offense was also serious.
In addition, the judgment stated that the defendant, as an incumbent city council member, was in a position requiring a high level of respect for the law as a representative of the citizens, and that committing the intentional offense of drunk driving while in that position deserved strong criticism.
The judgment also stated that the shock and disappointment caused to the citizens of Sukagawa could not be disregarded.
On the other hand, the judgment recognized circumstances that should be considered in the defendant’s favor, such as the fact that the defendant frankly admitted the facts in open court, showed an attitude of remorse, promised never to drink alcohol again, and had no prior criminal record.
After comprehensively considering these circumstances, the court determined that the defendant should be sentenced as stated in the main text of the judgment, but that, on this occasion, it was appropriate to suspend execution of the sentence.
The prosecution sought a sentence of one year’s imprisonment.
Important Entries
Under the section titled “Facts Constituting the Offence,” the judgment found that Toshio Tsumuraya drove an ordinary passenger vehicle while intoxicated at approximately 7:40 p.m. on October 18, 2011.
However, at the time of arrest and in the police-recorded statements, the alleged time of the accident had been stated as approximately 7:50 p.m.
The time of approximately 7:40 p.m. first appeared in the prosecutor-recorded statement dated November 2, 2011.
That statement does not record that Toshio Tsumuraya recovered his memory of the time of the accident.
Instead, the time was organised as approximately 7:40 p.m. by combining the calls made to a driving service at 7:09 p.m. and 7:14 p.m., an incoming call from the same service at 7:30 p.m., third-party information that the vehicle had been seen travelling at approximately 7:30 p.m., and estimated travel times between the relevant locations.
Accordingly, the time of approximately 7:40 p.m. adopted in the judgment was not derived directly from Toshio Tsumuraya’s experiential memory. It was calculated backwards from investigative information collected or organised after the arrest and from estimated travel times.
The judgment’s list of evidence also includes Toshio Tsumuraya’s statement at trial, one prosecutor-recorded statement and four police-recorded statements made by him.
In addition, it lists police-recorded statements made by three third parties and prosecutor-recorded statements made by two other third parties.
The two persons whose statements were recorded by the prosecutor were members of the Sukagawa City Council at the relevant time and voted in favour of both the first and second recommendations for resignation.
None of these five third parties was examined as a witness, and no cross-examination by the defence took place.
The judgment does not individually disclose the specific content of the five third-party statements, the facts established through each statement, or their relationship to the information that the vehicle had allegedly been seen travelling at approximately 7:30 p.m.
Procedural Position in the Criminal Proceedings
This document is the judgment pronounced in the present criminal proceedings on January 16, 2012.
Toshio Tsumuraya was arrested on October 19, 2011, and referred by the police to the public prosecutor on October 21. His pre-indictment detention then continued, including an extension of the detention period.
On October 26, while Toshio Tsumuraya remained in detention before indictment and while the investigation and questioning were continuing, the Sukagawa City Council unanimously adopted the first recommendation for resignation.
The first recommendation for resignation was adopted before the prosecutor-recorded statement dated November 2, 2011, before indictment, before the commencement of the trial, and before any judicial determination of criminal responsibility.
At that point, the alleged time of approximately 7:40 p.m., which was later adopted in the indictment and judgment, had not yet appeared in Toshio Tsumuraya’s statements.
Accordingly, in the present case, while questioning was continuing and the account of the incident that would later become the facts charged and the facts found in the judgment was still being developed, a local council acting as a public authority had already made a formal public demand for Toshio Tsumuraya’s resignation.
On November 2, 2011, a prosecutor-recorded statement was prepared.
At the beginning of that statement, the alleged time of the accident remained approximately 7:50 p.m., as in the earlier records.
In a later part of the same statement, however, the calls made to a driving service at 7:09 p.m. and 7:14 p.m., an incoming call from the same service at 7:30 p.m., third-party information that the vehicle had allegedly been seen travelling at approximately 7:30 p.m., and estimated travel times between the relevant locations were combined.
On that basis, it was reasoned that, if the vehicle had passed the alternating one-way traffic point at approximately 7:30 p.m. and reached the accident scene approximately ten minutes later, the collision with the guardrail would have occurred at approximately 7:40 p.m.
There is no record that Toshio Tsumuraya recovered his memory of the time of the accident.
The time of approximately 7:40 p.m. was not obtained directly from Toshio Tsumuraya’s experiential memory. It was developed by calculating backwards from investigative information presented after the arrest and estimated travel times between the relevant locations.
On November 9, 2011, Toshio Tsumuraya was indicted on the allegation that he had driven a vehicle at approximately 7:40 p.m.
Accordingly, the time of approximately 7:40 p.m. developed in the prosecutor-recorded statement dated November 2 was carried forward into the facts charged in the indictment.
On November 24, Toshio Tsumuraya stated at a meeting of all council members that he intended to decide whether to remain in office after the outcome of the criminal trial.
Nevertheless, seven days later, on December 1, the Sukagawa City Council adopted the second recommendation for resignation.
The second recommendation for resignation was adopted after indictment, but before the first trial hearing and before judgment.
The first trial hearing was subsequently held on December 26, and the present judgment was pronounced on January 16, 2012.
Like the indictment, the judgment adopted the time of approximately 7:40 p.m. as part of the “Facts Constituting the Offence.”
Accordingly, the time of approximately 7:40 p.m., which had been developed from investigative information and estimated travel times in the prosecutor-recorded statement dated November 2, was carried through the facts charged in the indictment and ultimately adopted as a fact in the judgment.
In its sentencing assessment, the judgment also referred to the detection of 0.71 milligrams of alcohol per litre of breath and to Toshio Tsumuraya’s alleged driving over a distance of approximately 11.5 kilometres as adverse circumstances.
However, these two matters were not established through evidence of the same nature.
The figure of 0.71 milligrams per litre of breath was a measured value obtained through a breath test.
By contrast, the distance of approximately 11.5 kilometres was not the result of Toshio Tsumuraya remembering and reconstructing the route actually travelled on the day of the incident.
During the on-site inspection conducted on October 24, 2011, while Toshio Tsumuraya stated that he did not remember where he had begun driving or the route actually travelled, roads described as those that could currently be taken between the city hall parking lot and the accident scene were recorded, and the distance was measured at approximately 11.5 kilometres.
The police-recorded statement dated October 25 states that Toshio Tsumuraya was shown the route map and learned from a police officer that the distance was approximately 11.5 kilometres.
Accordingly, the figure of approximately 11.5 kilometres was not the actual driving distance directly confirmed through Toshio Tsumuraya’s experiential memory or an objective record of the journey. It was the distance of a route established while he did not remember the route actually travelled.
The judgment’s “List of Evidence” also includes, in addition to Toshio Tsumuraya’s statement at trial and his statements made during the investigation, police-recorded statements made by three third parties and prosecutor-recorded statements made by two other third parties.
None of those five third parties was examined as a witness, and no cross-examination by the defence took place.
The two persons whose statements were recorded by the prosecutor were members of the Sukagawa City Council at the relevant time and had voted in favour of both the first and second recommendations for resignation.
Accordingly, statements made by city council members who had voted in favour of formal public demands for Toshio Tsumuraya’s resignation before his criminal responsibility was determined became prosecution evidence in the same criminal case and were incorporated into the evidentiary structure of the judgment without having been tested through cross-examination.
The judgment treated the fact that Toshio Tsumuraya frankly admitted the facts in open court and showed an attitude of remorse as circumstances favourable to him in sentencing.
However, before that statement at trial, there had been a sequence of events consisting of questioning while in custody, the preparation of inferential statements concerning conduct that Toshio Tsumuraya did not remember, the establishment of a route during the on-site inspection, the development of the alleged accident time through investigative information and estimated travel times, the first recommendation for resignation before indictment, and the second recommendation for resignation before the first trial hearing.
This sequence is important in relation to the presumption of innocence guaranteed by Article 14, paragraph 2 of the International Covenant on Civil and Political Rights (ICCPR).
General Comment No. 32, paragraph 30 of the Human Rights Committee states that the duty to respect the presumption of innocence is not limited to courts, but applies to all public authorities, and that public authorities must refrain from prejudging the outcome of a trial.
Accordingly, the Sukagawa City Council, as a local legislative body and public authority, was also required to refrain from making a public assessment premised on guilt or otherwise prejudging the outcome of the criminal proceedings before Toshio Tsumuraya had been proved guilty according to law.
The fact that a recommendation for resignation is regarded as having no legally binding effect under domestic law does not resolve this issue.
The issue in the present case is not whether the resolutions immediately deprived Toshio Tsumuraya of his status as a city council member. The issue is that a public authority made formal public demands for his resignation before his criminal responsibility had been determined.
Compatibility with Article 14, paragraph 2 of the ICCPR and General Comment No. 32, paragraph 30 cannot be determined solely by whether the resolutions had legally binding effect under domestic law.
The question whether the public treatment of Toshio Tsumuraya as guilty before judgment actually influenced the investigation, indictment, or judgment must also be distinguished from the question whether the public expressions of intent themselves complied with the presumption of innocence.
Where a public authority makes an expression of intent before judgment that prejudges the outcome of a trial, the issue arising under Article 14, paragraph 2 of the ICCPR should be examined independently, without requiring prior proof that the expression actually affected the result of the criminal trial.
Any specific effect on the formation of the statements and the account of the incident, the use of third-party statements as evidence, Toshio Tsumuraya’s position at trial, and the sentencing assessment is an additional matter that should be examined in relation to the right to a fair hearing guaranteed by Article 14, paragraph 1 of the ICCPR and the right to examine adverse witnesses guaranteed by Article 14, paragraph 3(e).
Nor does the subsequent indictment and final conviction retrospectively legalise the conduct of public authorities that occurred before indictment and judgment.
Article 14, paragraph 2 of the ICCPR regulates the conduct of public authorities until guilt has been proved according to law. It is not a right whose application is determined solely by the eventual outcome following conviction.
Accordingly, the present judgment is not merely a document establishing the existence of a conviction.
It is a central document for examining how statements formed during detention, the change in the alleged accident time from approximately 7:50 p.m. to approximately 7:40 p.m., the route and driving distance established without being based on Toshio Tsumuraya’s memory, third-party statements that were not tested through cross-examination, the two recommendations for resignation adopted before judgment, Toshio Tsumuraya’s position at trial, and the sentencing assessment were ultimately brought together in the judgment, in relation to the presumption of innocence and the right to a fair criminal trial under the ICCPR.
Relationship Between the Judgment and Part 3 of the Record and Examination of the Case
This material does not merely establish that a conviction was rendered.
It is a central document for identifying the facts found by the court, the evidence listed in support of those findings, and the account of the incident ultimately adopted as the facts of the judgment.
Part 3 of the Record and Examination of the Case examines how the alleged time and location of the accident, mobile telephone call records, the individual’s personal habits, his usual route home, the route established during the on-site inspection, information concerning the driving service, third-party information that the vehicle had been seen travelling, and estimated travel times between the relevant locations were incorporated into his statements while he continued to have no memory of the actual driving.
The police-recorded statement dated October 20, 2011 records that the individual did not identify the alleged time of approximately 7:50 p.m. or the location of the accident from his own memory, but learned them from a police officer.
The statement dated October 22 explains the commencement of driving, the purpose of driving, and the alleged route through inferences concerning conduct outside his memory, based on mobile telephone records, the location of the vehicle, his usual route home, and the route normally used by the driving service.
During the on-site inspection conducted on October 24, a route from the city hall parking lot to the accident scene was established and measured at approximately 11.5 kilometres, even though the individual stated that he did not remember the actual route travelled.
In the statement dated October 25, he was shown that route map and was informed by a police officer that the distance was approximately 11.5 kilometres.
Furthermore, in the prosecutor-recorded statement dated November 2, 2011, the alleged time of the accident was organised as approximately 7:40 p.m. by combining mobile telephone call records, information concerning the driving service, third-party information that the vehicle had been seen travelling at approximately 7:30 p.m., and estimated travel times between the relevant locations, without any record that the individual had recovered his memory of the accident time.
Accordingly, this was not a case in which a consistent account based on the individual’s experiential memory was given and then adopted unchanged in the judgment.
Rather, an account of the driving route, the intention to drive, and the alleged time of the accident was progressively developed after the arrest by combining information supplied by the investigating authorities, inferences made by the individual, the route established during the on-site inspection, and estimated travel times concerning matters that were absent from his memory.
The judgment adopted the time of approximately 7:40 p.m., which had been developed through that process, as part of the facts constituting the offence and treated the distance of approximately 11.5 kilometres as a premise in its sentencing assessment.
The judgment also treated the individual’s admission of the facts at trial and his expression of remorse as mitigating circumstances.
However, before he admitted the facts in court, there had already been a series of events consisting of questioning while he had no memory of the actual driving, the preparation of inferential statements, the establishment of a route during the on-site inspection, the development of the alleged time and intention to drive on the basis of investigative information, the first recommendation for resignation before indictment, and the second recommendation for resignation before the first trial hearing.
Accordingly, the individual’s plea and expression of remorse at trial cannot be evaluated separately from the preceding process through which his statements were formed and the circumstances in which he had been placed.
The judgment’s list of evidence also includes police-recorded statements made by three third parties and prosecutor-recorded statements made by two other third parties.
The two persons whose statements were recorded by the prosecutor were members of the Sukagawa City Council at the relevant time and voted in favour of both the first and second recommendations for resignation.
None of the five third parties was examined as a witness, and no cross-examination by the defence took place.
Consequently, the content of their statements was not directly tested through witness examination or cross-examination in court, even though the written statements were used as evidence supporting the conviction.
The judgment does not individually disclose what the five persons stated, which facts were established through their respective statements, or whether any of those statements formed the basis of the information that the vehicle had allegedly been seen travelling at approximately 7:30 p.m.
Examination of the judgment therefore requires more than observing that numerous items are listed as evidence.
It is necessary to distinguish whether each item was based on the individual’s experiential memory, an inference made by the individual, an objective measurement, a route established during the investigation, an estimated travel time, or an out-of-court third-party statement that was not tested through cross-examination.
By examining this judgment together with Part 3 of the Record and Examination of the Case, it is possible to trace how matters that were absent from the individual’s memory were recorded as his own statements and subsequently carried forward into later questioning, the indictment, and the judgment.
Questions Arising from This Material
1. Why was the time of approximately 7:40 p.m., rather than the original time of approximately 7:50 p.m., adopted as a fact in the judgment?
On the day of the arrest and in the police-recorded statements, the alleged time of the accident was approximately 7:50 p.m.
However, this was not a time that Toshio Tsumuraya remembered and stated from his own recollection.
The police-recorded statement dated October 20, 2011 states that Toshio Tsumuraya learned the time and location of the accident from a police officer.
Subsequently, in the prosecutor-recorded statement dated November 2, 2011, the alleged time of the accident was organised as approximately 7:40 p.m. by combining mobile telephone call records, third-party information that the vehicle had allegedly been seen travelling at approximately 7:30 p.m., and estimated travel times between the relevant locations.
There is no record that Toshio Tsumuraya recovered his memory of the time of the accident.
On what basis had the original time of approximately 7:50 p.m. been stated?
If circumstances had emerged that made it impossible to maintain that time, what had been incorrect about it?
Conversely, if approximately 7:50 p.m. had a reasonable evidentiary basis, why was Toshio Tsumuraya not indicted on the basis of that time, and why was the time of approximately 7:40 p.m., calculated backwards from estimated travel times, adopted in both the indictment and the judgment?
2. Was the breath alcohol concentration of 0.71 milligrams per litre consistent with the finding that Toshio Tsumuraya drove approximately 11.5 kilometres?
The judgment treated both the detection of 0.71 milligrams of alcohol per litre of breath and Toshio Tsumuraya’s alleged driving over approximately 11.5 kilometres as adverse sentencing circumstances.
However, the breath alcohol concentration was a measured value obtained through a breath test, whereas the distance of approximately 11.5 kilometres was not reconstructed from Toshio Tsumuraya’s memory of the route actually travelled.
While finding a degree of intoxication that made proper driving difficult, was it appropriate for the judgment also to treat an approximately 11.5-kilometre route that Toshio Tsumuraya did not remember as the route and distance actually travelled?
How did the judgment examine whether those two findings were mutually consistent?
3. Could the distance of approximately 11.5 kilometres properly be found to be the actual driving distance?
During the on-site inspection conducted on October 24, 2011, Toshio Tsumuraya stated that he did not remember where he had begun driving or the route actually travelled.
While he remained unable to remember those matters, roads described as those that could currently be taken between the city hall parking lot and the accident scene were recorded, and the distance was measured at approximately 11.5 kilometres.
On the following day, the route map and distance were shown to Toshio Tsumuraya and incorporated into his police-recorded statement.
The figure was therefore not a distance established by an actual record of the journey or by Toshio Tsumuraya’s experiential memory. It was the distance of a route established during the investigation.
On what evidence did the judgment find that Toshio Tsumuraya had actually travelled the entire approximately 11.5-kilometre route?
4. Did the court distinguish between Toshio Tsumuraya’s experiential memory and inferential statements based on investigative information?
The police-recorded statements repeatedly used expressions such as “I think” and “I believe” in relation to the commencement of driving, the purpose of driving, and the route allegedly travelled.
There is no record that Toshio Tsumuraya remembered actually beginning to drive, the route travelled, or the time of the accident.
Nevertheless, later statements contain a more definite account of Toshio Tsumuraya’s state of mind and intention to drive, stating that he became impatient while waiting for the driving service and decided to drive home himself.
How did the judgment distinguish between matters that Toshio Tsumuraya actually remembered and matters that he inferred from information presented to him after the arrest?
5. Why could the alleged time of the accident, route travelled, and intention to drive, all developed through inference, be treated as established facts in the judgment?
In the present case, while Toshio Tsumuraya’s memory did not return, mobile telephone records, third-party information, his personal habits, a route established during the on-site inspection, and estimated travel times were combined to develop an account of the accident time, route travelled, and intention to drive.
Did one inference become the premise for another inference, with the resulting combined account ultimately being treated as established facts in the judgment?
The judgment does not distinguish whether each matter was based on experiential memory, objective measurement, third-party information, or an investigative inference.
Was it appropriate to adopt an account formed through this process as established fact without any qualification?
6. How should the use of the statements of five third parties without witness examination or cross-examination be evaluated in relation to the right to a fair hearing and the right to examine witnesses?
The judgment’s “List of Evidence” includes written statements made by five third parties.
However, none of those five persons appeared as a witness at trial, and no witness examination or cross-examination by the defence took place.
Two of the five were members of the Sukagawa City Council at the relevant time and had voted in favour of both the first and second recommendations for resignation.
The judgment does not individually disclose what each of the five persons stated or which facts were established through each statement.
How should the use of out-of-court statements that were not tested through cross-examination be evaluated in relation to Article 37, paragraph 2 of the Constitution of Japan and Article 14, paragraphs 1 and 3(e) of the ICCPR?
7. Could Toshio Tsumuraya’s admission and expression of remorse at trial be evaluated separately from the preceding process through which his statements were formed?
The judgment treated the fact that Toshio Tsumuraya frankly admitted the facts in open court and showed an attitude of remorse as favourable sentencing circumstances.
However, before that admission, there had been questioning while in custody, inferential statements concerning conduct that Toshio Tsumuraya did not remember, the establishment of a route during the on-site inspection, the development of the alleged accident time and intention to drive through investigative information, and two recommendations for resignation.
When evaluating Toshio Tsumuraya’s admission and remorse at trial, was it unnecessary to examine the preceding process through which his statements were formed and the circumstances in which he had been placed?
8. How did the judgment address the two recommendations for resignation adopted before judgment?
The first recommendation for resignation was adopted while Toshio Tsumuraya remained in detention before indictment and while the facts later charged were still being developed.
The second recommendation for resignation was adopted seven days after Toshio Tsumuraya stated that he intended to decide whether to remain in office after the outcome of the criminal trial. Although it was adopted after indictment, it preceded both the first trial hearing and the judgment.
The judgment makes no reference to the existence of those two recommendations for resignation or their relationship to the criminal proceedings.
How did the court understand and evaluate the fact that a public authority had formally demanded Toshio Tsumuraya’s resignation before his criminal responsibility had been determined?
9. Was the court permitted to render judgment without examining whether the public treatment of Toshio Tsumuraya as guilty before judgment complied with the presumption of innocence under the ICCPR?
Article 14, paragraph 2 of the ICCPR guarantees the right to be presumed innocent until proved guilty according to law.
General Comment No. 32, paragraph 30 states that all public authorities must refrain from prejudging the outcome of a trial.
Both recommendations for resignation were formal demands made by the city council, a public authority, before the guilty judgment.
Accordingly, independently of whether an actual effect on the criminal trial can be proved, a separate question exists as to whether the resolutions themselves complied with Article 14, paragraph 2 of the ICCPR.
Was the court permitted to render judgment without examining this issue under the Covenant?
10. Can a later conviction cure an earlier violation of the presumption of innocence?
The present judgment subsequently became final.
However, Article 14, paragraph 2 of the ICCPR regulates the conduct of public authorities before judgment.
Accordingly, the fact that a conviction was subsequently rendered cannot retrospectively legalise a prejudicial expression of intent made by a public authority before judgment.
Is it permissible to rely on the later conviction as a reason not to examine independently whether the pre-judgment recommendations for resignation complied with Article 14, paragraph 2 of the ICCPR?
Would treating the later conviction as curing an earlier violation of the presumption of innocence deprive the right of the very period during which it is intended to operate?
Relevant Laws, Treaties, and International Legal Standards
Domestic Law
Article 31 of the Constitution of Japan
Article 31 provides that no person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.
In the present case, the guarantee of due process is relevant to the process through which matters not based on the defendant’s experiential memory were developed through investigative inference and carried forward into the court’s findings of fact.
Article 37, Paragraph 1 of the Constitution of Japan
Article 37, paragraph 1 provides that, in all criminal cases, the accused shall enjoy the right to a speedy and public trial by an impartial tribunal.
The relationship between the repeated public demands for resignation made by a public authority before judgment and the fairness of the subsequent criminal trial must be examined.
Article 37, Paragraph 2 of the Constitution of Japan
Article 37, paragraph 2 provides that the accused shall be permitted full opportunity to examine all witnesses.
In the present case, this guarantee is relevant because the written statements of five third parties were used as evidence, while none of those persons was examined as a witness or cross-examined by the defence.
Article 98, Paragraph 2 of the Constitution of Japan
Article 98, paragraph 2 requires the faithful observance of treaties concluded by Japan and established laws of nations.
Accordingly, the present criminal proceedings and the conduct of the local council must be evaluated not only under domestic law, but also for compatibility with the guarantees of the presumption of innocence and the right to a fair hearing under the ICCPR.
Article 99 of the Constitution of Japan
Article 99 imposes on judges, public officials of local public entities, and other public officials the obligation to respect and uphold the Constitution.
When exercising their authority under domestic law, the local council and public officials involved in the criminal justice process were required to respect both the Constitution and the rights under treaties whose faithful observance is required through Article 98, paragraph 2 of the Constitution.
Article 317 of the Code of Criminal Procedure
Article 317 provides that facts shall be found on the basis of evidence.
The defendant’s experiential memory, objective measurements, investigative inferences, and out-of-court third-party statements must be distinguished, and the evidentiary value of each must be examined.
Article 318 of the Code of Criminal Procedure
Article 318 provides that the probative value of evidence shall be left to the free evaluation of the judges.
However, the principle of free evaluation of evidence does not permit the court to disregard the process through which evidence was formed, fail to distinguish the nature of different evidence, or dispense with a rational examination of its reliability.
Article 320, Paragraph 1, Articles 321 and 326 of the Code of Criminal Procedure
These provisions establish the hearsay rule, exceptions to that rule, and the use of evidence with the consent of the parties in relation to documents containing out-of-court statements.
The judgment alone does not disclose the statutory provision under which the five third-party statements were admitted into evidence.
However, the fact that those statements were used without witness examination or cross-examination must be examined not only in relation to their admissibility under domestic law, but also in relation to the right to examine witnesses under the Constitution and the ICCPR.
International Human Rights Treaties — International Covenant on Civil and Political Rights (ICCPR)
Article 14, Paragraph 1 of the ICCPR
Article 14, paragraph 1 guarantees the right to a fair and public hearing by a competent, independent, and impartial tribunal in the determination of a criminal charge.
In the present case, the fairness of the proceedings as a whole must be examined, including the public demands for resignation before judgment, the formation of statements while the defendant was in custody, the use of third-party written statements as evidence, and the evaluation of the defendant’s position at trial.
Article 14, Paragraph 2 of the ICCPR
Article 14, paragraph 2 provides that everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
This right governs not only the conclusion reached in a criminal judgment, but also the treatment of the accused by public authorities before judgment.
Article 14, Paragraph 3(e) of the ICCPR
Article 14, paragraph 3(e) guarantees the right of the accused to examine, or have examined, the witnesses against him, and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
In the present case, this guarantee is relevant because the written statements of five third parties were used as evidence, while none of those persons was examined as a witness or cross-examined by the defence.
Article 2, Paragraph 3 of the ICCPR
Article 2, paragraph 3 requires States Parties to ensure an effective remedy for persons whose rights or freedoms under the Covenant have been violated.
Where an issue involving the presumption of innocence or the right to a fair trial is established, the need for examination and remedy is not extinguished solely because the conviction subsequently became final.
General Comment No. 32, Paragraph 30
The presumption of innocence is fundamental to the protection of human rights. It places the burden of proving the charge on the prosecution, prohibits any presumption of guilt until the charge has been proved beyond reasonable doubt, and ensures that the accused receives the benefit of the doubt.
It also requires all public authorities to refrain from prejudging the outcome of a trial, including by avoiding public statements affirming the guilt of the accused.
Accordingly, the pre-judgment demands for resignation made by the local council must be examined for compatibility with this standard, rather than being assessed solely according to whether they had legally binding effect under domestic law.
General Comment No. 32, Paragraph 39
Article 14, paragraph 3(e) guarantees the right to examine, or have examined, adverse witnesses and constitutes an important application of the principle of equality of arms.
In the present case, the use of the written statements of five third parties without witness examination or cross-examination must be examined in relation to this standard.
General Comment No. 32, Paragraph 58
General Comment No. 32, paragraph 58 explains that Article 14 has an important relationship with the right to an effective remedy under Article 2, paragraph 3 of the ICCPR, and that Article 2, paragraph 3 generally must be respected whenever a guarantee under Article 14 has been violated.
Accordingly, the question arises whether substantive examination and an effective remedy may be withheld in relation to an alleged violation of Article 14 merely because the conviction became final or the domestic criminal proceedings ended.
Standards Concerning Treaty Performance and Interpretation
Article 26 of the Vienna Convention on the Law of Treaties
Article 26 establishes the principle that every treaty in force is binding upon the parties and must be performed by them in good faith.
Article 27 of the Vienna Convention on the Law of Treaties
Article 27 provides that a State Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
Accordingly, examination under the ICCPR cannot be excluded solely on the grounds that recommendations for resignation have no legally binding effect under domestic law, that a local council enjoys a Domestic Law
Article 31 of the Constitution of Japan
Article 31 provides that no person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.
In the present case, the guarantee of due process is relevant to the process through which matters not based on Toshio Tsumuraya’s experiential memory were developed through investigative inference and carried forward into the court’s findings of fact.
Article 37, Paragraph 1 of the Constitution of Japan
Article 37, paragraph 1 provides that, in all criminal cases, the accused shall enjoy the right to a speedy and public trial by an impartial tribunal.
The relationship between the repeated public demands for resignation made by a public authority before judgment and the fairness of the subsequent criminal trial must be examined.
Article 37, Paragraph 2 of the Constitution of Japan
Article 37, paragraph 2 provides that the accused shall be permitted full opportunity to examine all witnesses.
In the present case, this guarantee is relevant because the written statements of five third parties were used as evidence, while none of those persons was examined as a witness or cross-examined by the defence.
Article 98, Paragraph 2 of the Constitution of Japan
Article 98, paragraph 2 requires the faithful observance of treaties concluded by Japan and established laws of nations.
Accordingly, the present criminal proceedings and the conduct of the local council must be evaluated not only under domestic law, but also for compatibility with the guarantees of the presumption of innocence and the right to a fair hearing under the ICCPR.
Article 99 of the Constitution of Japan
Article 99 imposes on judges, public officials of local public entities, and other public officials the obligation to respect and uphold the Constitution.
When exercising their authority under domestic law, the local council and public officials involved in the criminal justice process were required to respect both the Constitution and the rights under treaties whose faithful observance is required through Article 98, paragraph 2 of the Constitution.
Article 317 of the Code of Criminal Procedure
Article 317 provides that facts shall be found on the basis of evidence.
Toshio Tsumuraya’s experiential memory, objective measurements, investigative inferences, and out-of-court third-party statements must be distinguished, and the evidentiary value of each must be examined.
Article 318 of the Code of Criminal Procedure
Article 318 provides that the probative value of evidence shall be left to the free evaluation of the judges.
However, the principle of free evaluation of evidence does not permit the court to disregard the process through which evidence was formed, fail to distinguish the nature of different evidence, or dispense with a rational examination of its reliability.
Article 320, Paragraph 1, Articles 321 and 326 of the Code of Criminal Procedure
These provisions establish the hearsay rule, exceptions to that rule, and the use of evidence with the consent of the parties in relation to documents containing out-of-court statements.
The judgment alone does not disclose the statutory provision under which the five third-party statements were admitted into evidence.
However, the fact that those statements were used without witness examination or cross-examination must be examined not only in relation to their admissibility under domestic law, but also in relation to the right to examine witnesses under the Constitution and the ICCPR.
International Human Rights Treaties
Article 14, Paragraph 1 of the ICCPR
Article 14, paragraph 1 guarantees the right to a fair and public hearing by a competent, independent, and impartial tribunal in the determination of a criminal charge.
In the present case, the fairness of the proceedings as a whole must be examined, including the public demands for resignation before judgment, the formation of statements while Toshio Tsumuraya was in custody, the use of third-party written statements as evidence, and the evaluation of his position at trial.
Article 14, Paragraph 2 of the ICCPR
Article 14, paragraph 2 provides that everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
This right governs not only the conclusion reached in a criminal judgment, but also the treatment of the accused by public authorities before judgment.
Article 14, Paragraph 3(e) of the ICCPR
Article 14, paragraph 3(e) guarantees the right of the accused to examine, or have examined, the witnesses against him, and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
In the present case, this guarantee is relevant because the written statements of five third parties were used as evidence, while none of those persons was examined as a witness or cross-examined by the defence.
Article 2, Paragraph 3 of the ICCPR
Article 2, paragraph 3 requires States Parties to ensure an effective remedy for persons whose rights or freedoms under the Covenant have been violated.
Where an issue involving the presumption of innocence or the right to a fair trial is established, the need for examination and remedy is not extinguished solely because the conviction subsequently became final.
General Comments
General Comment No. 32, Paragraph 30
The presumption of innocence is fundamental to the protection of human rights. It places the burden of proving the charge on the prosecution, prohibits any presumption of guilt until the charge has been proved beyond reasonable doubt, and ensures that the accused receives the benefit of the doubt.
It also requires all public authorities to refrain from prejudging the outcome of a trial, including by avoiding public statements affirming the guilt of the accused.
Accordingly, the pre-judgment demands for resignation made by the local council must be examined for compatibility with this standard, rather than being assessed solely according to whether they had legally binding effect under domestic law.
General Comment No. 32, Paragraph 39
Article 14, paragraph 3(e) guarantees the right to examine, or have examined, adverse witnesses and constitutes an important application of the principle of equality of arms.
In the present case, the use of the written statements of five third parties without witness examination or cross-examination must be examined in relation to this standard.
General Comment No. 32, Paragraph 58
General Comment No. 32, paragraph 58 explains that Article 14 has an important relationship with the right to an effective remedy under Article 2, paragraph 3 of the ICCPR, and that Article 2, paragraph 3 generally must be respected whenever a guarantee under Article 14 has been violated.
Accordingly, the question arises whether substantive examination and an effective remedy may be withheld in relation to an alleged violation of Article 14 merely because the conviction became final or the domestic criminal proceedings ended.
Law of Treaties
Article 26 of the Vienna Convention on the Law of Treaties
Article 26 establishes the principle that every treaty in force is binding upon the parties and must be performed by them in good faith.
Article 27 of the Vienna Convention on the Law of Treaties
Article 27 provides that a State Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
Accordingly, examination under the ICCPR cannot be excluded solely on the grounds that recommendations for resignation have no legally binding effect under domestic law, that a local council enjoys a degree of autonomy, or that the evidence was admitted under domestic criminal procedure.degree of autonomy, or that the evidence was admitted under domestic criminal procedure.
Relation to This Case
The present judgment establishes that a guilty judgment was rendered in the criminal proceedings.
However, the issue examined in the present case is not limited to the existence of the conviction.
The first matter that must be examined is whether the repeated formal public demands for Toshio Tsumuraya’s resignation made by the Sukagawa City Council before judgment complied with the presumption of innocence guaranteed by Article 14, paragraph 2 of the ICCPR.
The first recommendation for resignation was adopted while Toshio Tsumuraya remained in detention before indictment, while the investigation and questioning were continuing, and before the alleged time of approximately 7:40 p.m., later adopted in the indictment and judgment, had appeared in his statements.
The second recommendation for resignation was adopted seven days after Toshio Tsumuraya stated that he intended to decide whether to remain in office after the outcome of the criminal trial. Although it was adopted after indictment, it preceded both the first trial hearing and the judgment.
General Comment No. 32, paragraph 30 states that the duty to refrain from prejudging the outcome of a trial applies not only to courts, but to all public authorities, including local legislative bodies.
Accordingly, independently of whether it can be proved that the recommendations for resignation actually affected the outcome of the criminal trial, a separate question exists as to whether the resolutions themselves complied with Article 14, paragraph 2 of the ICCPR.
The fact that the recommendations for resignation are regarded as having no legally binding effect under domestic law does not resolve this issue.
The question is not whether the resolutions immediately deprived Toshio Tsumuraya of his position as a city council member. The question is whether a public authority made formal public assessments demanding his resignation before his criminal responsibility had been determined.
The second matter that must be examined is how Toshio Tsumuraya’s statements, the facts charged, and the facts ultimately found in the judgment were formed and evaluated in circumstances where those public expressions of intent had already been made.
Toshio Tsumuraya did not remember when he actually began driving, the route travelled, or the time of the accident.
Nevertheless, mobile telephone records presented after the arrest, third-party information that the vehicle had allegedly been seen travelling, Toshio Tsumuraya’s personal habits, a route established during the on-site inspection, and estimated travel times were combined to develop an account of the alleged accident time, an approximately 11.5-kilometre driving distance, and an intention to drive.
The time of approximately 7:40 p.m. was not the result of Toshio Tsumuraya recovering his memory of the accident time. It was calculated backwards from the alleged sighting at approximately 7:30 p.m. and estimated travel times.
The distance of approximately 11.5 kilometres was likewise not reconstructed from Toshio Tsumuraya’s memory of the route actually travelled. It was the distance of a route established while he did not remember the actual route.
Nevertheless, the judgment adopted the time of approximately 7:40 p.m. as part of the “Facts Constituting the Offence” and treated the approximately 11.5-kilometre distance as an adverse sentencing circumstance.
The judgment also lists the written statements of five third parties as evidence, although none of those persons was examined as a witness or cross-examined by the defence.
Two of the five were members of the Sukagawa City Council at the relevant time and had voted in favour of both the first and second recommendations for resignation before judgment.
Accordingly, statements made by persons who had voted in favour of formal public demands for Toshio Tsumuraya’s resignation before his criminal responsibility was determined became prosecution evidence in the same criminal case and were incorporated into the evidentiary structure of the judgment without having been tested through cross-examination.
This issue must be examined independently in relation to the right to a fair hearing guaranteed by Article 14, paragraph 1 of the ICCPR and the right to examine adverse witnesses guaranteed by Article 14, paragraph 3(e).
The judgment also treated the fact that Toshio Tsumuraya frankly admitted the facts in open court and showed an attitude of remorse as favourable sentencing circumstances.
However, before that admission, there had been questioning while in custody, the preparation of inferential statements, the development of the account of the incident through investigative information, and the two recommendations for resignation adopted before judgment.
Accordingly, Toshio Tsumuraya’s admission and expression of remorse at trial cannot be evaluated separately from the preceding process through which his statements were formed and the circumstances in which he had been placed.
The currently available materials do not establish that the recommendations for resignation directly influenced the prosecutor’s questioning, the decision to indict, or the court’s judgment.
However, the absence of proof of a direct causal connection does not mean that the public demands for resignation made before judgment need not be examined for compatibility with Article 14, paragraph 2 of the ICCPR.
Whether the presumption of innocence was violated and whether the resolutions had a specific effect on the criminal trial are separate questions.
The former concerns whether a public authority itself made a formal public expression of intent before judgment that prejudged the outcome of the trial.
The latter concerns the additional fair-trial question of how the statements, facts charged, admission of evidence, Toshio Tsumuraya’s position at trial, and the judgment were formed in circumstances where that public expression of intent already existed.
Nor does the fact that a conviction was subsequently pronounced and became final retrospectively legalise the conduct of the public authority before judgment.
If a later conviction could cure an earlier violation of the presumption of innocence, the right would lose its meaning during the very pre-judgment period in which it is intended to provide protection.
Article 98, paragraph 2 of the Constitution of Japan requires the faithful observance of the ICCPR, a treaty concluded by Japan.
Article 27 of the Vienna Convention on the Law of Treaties also prohibits reliance on domestic law as justification for failure to perform treaty obligations.
Accordingly, examination of compatibility with Article 14, paragraphs 1, 2, and 3(e) of the ICCPR cannot be avoided solely by relying on the powers of the local council under domestic law, the absence of legally binding effect of the recommendations for resignation, or compliance with domestic rules of criminal procedure.
The present judgment is not merely a document establishing the existence of a conviction.
It is a central document for examining together two distinct but connected issues: first, the independent question of how the public demands for resignation made before judgment should be evaluated in relation to the presumption of innocence; and second, the additional question of how the statements, alleged accident time, route travelled, driving distance, third-party written statements, Toshio Tsumuraya’s position at trial, and the sentencing assessment formed under those circumstances should be evaluated in relation to the right to a fair criminal trial.
Related Materials
Related pages
The following core pages are currently available in Japanese only.
Record and Verification of the Case
Record and Verification of the Case, Part 1
Record and Verification of the Case, Part 2
Record and Verification of the Case, Part 3
Record and Verification of the Case, Part 4
Record and Verification of the Case, Part 5
Legal Arguments and Structure of Unconstitutionality and Illegality
Related evidence articles:
2011（Heisei 23）
Document Distributed in Sukagawa City—Group Calling for the Resignation of Toshio Tsumuraya
2012（Heisei 24）
2025（Reiwa 7）
2026（Reiwa 8）
Related normative articles:
Related timeline entries:
October 18, 2011:
The alleged incident was said to have occurred.
October 19, 2011:
Toshio Tsumuraya voluntarily appeared at the police station and was then arrested pursuant to an arrest warrant. This was not an arrest in flagrante delicto. Detention began.
October 24, 2011,
Assembly Steering Committee held before the First Resolution Recommending Resignation
October 26, 2011,
First Resolution Recommending Resignation
November 9, 2011:
He was indicted and was later released on bail.
November 28, 2011,
Assembly Steering Committee held before the Second Resolution Recommending Resignation
December 1, 2011,
Second Resolution Recommending Resignation
January 16, 2012,
Conviction
January 31, 2012,
Conviction became final and binding
February 7, 2012,
Assembly Steering Committee held before the Third Resolution Recommending Resignation
February 9, 2012,
Third Resolution Recommending Resignation
February 27, 2012,
Assembly Steering Committee held before the Fourth Resolution Recommending Resignation
March 1, 2012,
Fourth Resolution Recommending Resignation