Re Shimabukuro

• Jurisdiction: Japón
• Date: 30 May 1967
• Court: District Court (Japan)

Japan, Osaka District Court.

Re Shimabukuro and Others

Jurisdiction In general Personal Over nationals in respect of crimes committed abroad Inhabitants of Okinawa Whether Japanese nationals for purposes of personal jurisdiction The law of Japan

THE INDIVIDUAL IN INTERNATIONAL LAW

The individual in international law Nationality Nationality as affected by change of sovereignty Treaty relinquishing sovereign powers over a territory without cession Whether affecting nationa1lity Okinawa The law of Japan

JURISDICTION

Jurisdiction In general Territorial jurisdiction Over territory in general Territorial limits of jurisdiction Treaty relinquishing sovereign powers over a territory without cession Whether territory continues to be part of State territory Whether territorial jurisdiction exists to try offences committed within the territory Applicability of laws within the territory Personal jurisdiction Over nationals Whether inhabitants of the territory nationals Okinawa The law of Japan

Summary: The facts:The Okinawa islands were part of the territory of Japan before 1952. Article 3 of Treaty of Peace with Japan provided that Japan would concur in any proposal of the United States to the United Nations to place the islands under its trusteeship with the United States as the sole administering authority; meanwhile, the United States would have the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of the islands, including their territorial waters. In pursuance of the Treaty the United States was exercising sovereign powers over the islands. The accused, Okinawa inhabitants, acted in Okinawa in contravention of the Japanese Penal Code. When they later came to Japan they were charged. They challenged the jurisdiction of the Japanese courts to try them. Article 1 of the Penal Code restricted its territorial application to crimes committed in Japan. Article 3 extended the application of the Code in the case of certain crimes to Japanese nationals committing the crimes outside Japan. It was contended that although the inhabitants of Okinawa were Japanese nationals they were not so within the meaning of Article 3.

Held:(1) the Okinawa islands were not within the territory of Japan as provided in the Penal Code. The Japanese courts accordingly had no territorial jurisdiction to try the offences.

(2) The Treaty of Peace did not alter the nationality of Okinawa inhabitants who continued to remain Japanese nationals.

(3) The Okinawa inhabitants were Japanese nationals for the purposes of Article 3 of the Penal Code and the Japanese courts could exercise personal jurisdiction over the accused.

The following is the text of the first opinion of the Court, delivered on 29 June 1966:

The following are our opinions as regards the request of the accused's defence counsel, Kenichi Amita and Minoru Ota, that the Court dismiss the prosecution ex-officio on the ground that the Japanese courts lack jurisdiction over this case.

1. First of all, the main points made by counsel can be summarized as follows. The accused are all inhabitants of the Ryukyu Islands (hereinafter we call those who have their permanent domicile in Ryukyu Islands and who reside there, the inhabitants of Okinawa), and the facts asserted in this case are acts committed by the accused in the Ryukyus. Japan does not hold complete territorial sovereignty over the Ryukyus, so that Ryukyus are not within the territory of Japan as provided in para. 1, Art. 1 of the Penal Code, and the inhabitants of Okinawa are not nationals of Japan as provided in Art. 3 of the Penal Code. Although they are Japanese, they are now under the supreme power of the United States. Accordingly, the Penal Code cannot be applied to the accused in this case, and Japan does not have jurisdiction over the said accused.

2. The Court considers that the following can be acknowledged. According to the records of the personal histories inquired by us, all the accused have their permanent domiciles on Okinawa in the Ryukyus. They were born before the end of the last World War and lived in Okinawa since then. Thereafter, the accused Shimabukuro and Matsumora in September 1940, and the accused Uehara and Gushiken at the end of March of the same year, came to mainland Japan. Pursuant to the indictments dated January 10, February 4, February 12, and March 10, 1966, even though all the facts asserted in this case are crimes (homicide, attempted homicide and inflicting bodily injury) committed by the accused while they resided in Okinawa, except for the facts asserted in the indictment dated February 17, 1966 against the accused Gushiken, they were arrested and arraigned before this Court by the authorities of Japan for the said crimes after they came to Japan.

3. As the defence counsel assert that the Ryukyu Islands should not be deemed to be included in the territory of Japan for the purposes of Art. 1 of the Penal Code, and the public prosecutor supports their opinion, the Court examines this point first.

Based on the territorial principle presupposing the exercise of an exclusive State sovereignty (territorial sovereignty), Art. 1 of the Penal Code provides that the Code shall be applied to whoever commits a crime in Japan. So the Court deems it proper to determine whether or not...