Japan v Smith and Stinner

• Jurisdiction: Japón
• Docket Number: 47
• Court: High Court (Japan)
• Date: 05 November 1952

Japan, District Court of Kobe.

High Court of Osaka (Sixth Criminal Division).

(Toshihiro Oka (Presiding Judge); Masao Kunimasa and Hiroe Ishimaru (Associate Judges).)

Case No. 47

Japan

and

Smith and Stinner.

Jurisdiction — Exemption from — Armed Forces — Foreign Vessels of War — Crimes Committed Ashore by Members of Crew on Shore Leave.

The Facts.—The accused were sailors belonging to the British warship Belfast which in June 1952 arrived in the port of Kobe on a visit. On June 28 1952 while they were on shore leave, they assaulted a taxi driver, stole his money and drove the taxi away. They were arrested and convicted of robbery. They appealed, pleading, inter alia, that the Japanese Courts had no jurisdiction seeing that appellants were members of the crew of a foreign warship.

Held: that the appeal must be dismissed.1 The Japanese Courts had jurisdiction over the accused. The Court said:

“Article 338 (1) of the Code of Criminal Procedure provides that ‘where a Court has no jurisdiction over the accused, the charge shall be dismissed’. It is obvious that this provision indicates the existence of a criminal jurisdiction which is a part of the judicial power provided for in paragraph 1 of Article 76 of the Japanese Constitution, which reads: ‘The whole judicial power is vested in a Supreme Court and in such inferior Courts as are established by law.’ Moreover, there is no provision in the Code of Criminal Procedure which specifies the cases over which the Courts have no jurisdiction.

“It is essential for the independent existence of a State that its sovereignty shall be supreme and, as a rule, that sovereignty extends over the entire territory of the State and governs all persons and things within that territory. In general,

therefore, the sovereign power affects every person within the territory concerned, regardless of whether he is a citizen of the State or an alien, and this rule can be qualified solely by treaty or other agreement concluded by the State or by the generally accepted rules of the law of nations. Paragraph 2 of Article 98 of the Japanese Constitution provides that ‘the treaties concluded by Japan and the generally accepted rules of the law of nations shall be faithfully observed’, and since this provision is in Chapter X, which is headed ‘Supreme Law’, the Court is of opinion that the Constitution itself is qualified by the treaties concluded by Japan and by the established customary law of nations. Not only must these provisions of the Constitution be faithfully observed by Japan with respect to foreign States, but those provisions which relate to domestic matters must also be faithfully observed in Japan by the State organs and by every person in Japan. Accordingly, therefore, the above-mentioned criminal jurisdiction, which is an aspect of sovereignty, extends, in so far as it is not definitely limited, to aliens residing in Japan. In examining the limitations on Japan's criminal jurisdiction...