Code of Criminal Procedure

A judge is disqualified from the execution of the judge's duties in a case for which a request for a retrial has been made, when the judge has participated in any of the following judicial decisions in the case charged pertaining to the original judgment:

a judgment under the provisions of Article 333, Article 334 or Article 336;

a judgment under the provisions of Article 396 pertaining to a judgment set forth in the preceding item;

a summary order.

The same applies as in the preceding paragraph when a judge has participated, in a case in which a ruling to commence a retrial has become final, in any of the following rulings on the request for a retrial pertaining to that ruling to commence a retrial:

a ruling under the provisions of Article 444-2, paragraph (2) (limited to the part pertaining to item (ii)), Article 447, paragraph (1) or Article 448, paragraph (1);

a ruling to dismiss an immediate appeal against a ruling set forth in the preceding item or an objection under Article 428, paragraph (2) (excluding a ruling based solely on the ground that the procedure for that immediate appeal or objection violated the provisions governing it).

In order to file a request for a retrial, a document stating the grounds for it must be submitted to the competent court of jurisdiction.

The documentary evidence or material evidence and a transcript of the written decision of the original judgment (where the written decision is an electronic or magnetic record, a document or electronic or magnetic record stating or recording the whole of the matters recorded in that written decision, the content of which has been certified to be identical to the matters recorded in that written decision; the same applies hereinafter in this paragraph) must be attached to the document referred to in the preceding paragraph; provided, however, that where a request has been made under Article 271-2, paragraph (1) or Article 312-2, paragraph (1) (including cases where applied mutatis mutandis pursuant to Article 404), or measures have been taken under Article 299-4, paragraph (1), (3), (6) or (8) or Article 299-5, paragraph (3) (including cases where these provisions apply mutatis mutandis pursuant to Article 404 (including cases where it applies mutatis mutandis pursuant to Article 414)), and a transcript of the written decision of the original judgment cannot be attached, it suffices to attach the documentary evidence or material evidence and an extract of the written decision of the original judgment (where the written decision is an electronic or magnetic record, a document or electronic or magnetic record stating or recording a part of the matters recorded in that written decision, the content of which has been certified to be identical to the matters recorded in that written decision) that does not state or record the particulars identifying an individual pertaining to those requests or the name or residence pertaining to those measures.

The court that has received a request for a retrial must promptly investigate the request.

The court set forth in the preceding paragraph must, based on the result of the investigation under that paragraph, render the ruling specified in the corresponding item for the category of cases set forth in each of the following items:

in any of the following cases: a ruling to dismiss the request for a retrial;

when it is found that the request for a retrial has been filed contrary to the form provided in laws and regulations;

when it is found that the request for a retrial has been made after loss of the right to request a retrial;

when it is found that the grounds for the request for a retrial stated in the document under Article 441-2, paragraph (1) clearly do not fall under the cases set forth in the items of Article 435 or the items of Article 436, paragraph (1);

in a case where it is found to be clear that there are grounds for the request for a retrial: a ruling to commence a retrial;

in cases other than those set forth in the preceding two items: a ruling to commence a hearing (hereinafter referred to as the "ruling to commence a hearing").

When the court has rendered a ruling under the provisions of the preceding paragraph (limited to the part pertaining to item (ii)), it may suspend the execution of the sentence by ruling.

When the execution of the death penalty has been suspended pursuant to the provisions of the preceding paragraph, the court may suspend, by ruling, the confinement under Article 11, paragraph (2) of the Penal Code.

The court that has received a request for a retrial may not conduct an examination of the facts until after it has rendered a ruling to commence a hearing.

The court that has received a request for a retrialrendered a ruling to commence a hearing may, when it deems necessary, request a judge on a judicial panel to conduct an examination of the facts to determine the grounds for the request for a retrial, or may delegate this to a judge of a district court, family court, or summary court. In this case, an authorized judge or a delegated judge shall have the same authority as a court or a presiding judge.

A person who has made a request for a retrial (excluding the public prosecutor; hereinafter referred to as the "retrial requester"), the defense counsel or the public prosecutor may request the court that has rendered the ruling to commence a hearing to conduct an examination of the facts.

The court that has rendered a ruling to commence a hearing must, with regard to evidence found to be related to the grounds for the request for a retrial, when it finds it appropriate taking into account the extent of its relevance and otherwise the extent of the necessity of having it submitted in order to render a judicial decision on that request for a retrial, as well as the content and extent of the possible harmful effects that may arise if it is submitted, order the public prosecutor, by a ruling, to submit that evidence, upon request from the retrial requester or the defense counsel or ex officio.

The court must hear the opinion of the public prosecutor when it renders a ruling under the preceding paragraph or a ruling to dismiss a request under that paragraph.

An immediate appeal may be filed against a ruling under paragraph (1) or a ruling dismissing a request under that paragraph.

In determining whether to make the ruling under paragraph (1) of the preceding Article, if the court finds it necessary, it may order the public prosecutor to present the evidence that is the subject of that determination. In this case, where all or part of that evidence is an electronic or magnetic record, the presentation of that electronic or magnetic record is to be received by inspecting a display of its contents or by viewing and listening to a playback of its contents.

In determining whether to make the ruling under paragraph (1) of the preceding Article, if the court finds it necessary, it may order the public prosecutor to present a list of the titles of the evidence that said prosecutor holds which falls within the range specified by the court. In this case, where the public prosecutor has prepared the list as an electronic or magnetic record, the presentation of the list is to be received by inspecting a display of its contents.

In the cases of the preceding two paragraphs, the court may not let anyone inspect or copy the evidence set forth in paragraph (1) or the list set forth in the preceding paragraph.

The provisions of the preceding three paragraphs apply mutatis mutandis to the court where the immediate appeal under paragraph (3) of the preceding Article is pending.

When a defense counsel has copied evidence submitted by the public prosecutor after the court made a ruling to commence a hearing in the procedure for a request for a retrial, the defense counsel must properly manage the copies of evidence pertaining to that evidence and must not entrust their custody to another person without reason.

A retrial requester, defense counsel or a person who was defense counsel must not deliver or present to another person, or provide through telecommunication lines, copies of evidence pertaining to the evidence prescribed in the preceding Article for any purpose other than use in the following procedures or for the preparation thereof:

The procedure for a request for a retrial in relation to the case pertaining to that request for a retrial;

Where a ruling to commence a retrial has become final and binding in the procedure set forth in the preceding item, the proceedings of the case charged to the court and any other proceedings for a judicial decision related to that case charged to the court, and the procedures set forth in Article 281-4, paragraph (1), item (ii) in relation to that case (excluding those set forth in (e) of that item).

As to the measures to be taken in the event of a violation of the provisions of the preceding paragraph, the court is to consider, in light of the interests of the retrial requester pertaining to the request for a retrial or the right to defense of the defendant in the retrial, the contents of the copies of evidence, the intent and mode of the act, whether the reputation of the related persons or the tranquility of their private life or business has been harmed, whether the evidence pertaining to the copies of evidence was examined on a trial date, the method of that examination, and other circumstances.

When a retrial requester delivers or presents to another person, or provides through telecommunication lines, copies of evidence pertaining to the evidence prescribed in Article 445-4 for any purpose other than use in the procedures set forth in the items of paragraph (1) of the preceding Article or for the preparation thereof, the retrial requester is to be punished by imprisonment for a term of one year or less or a fine of 500,000 yen or less.

The same applies when a defense counsel or a person who was a defense counsel delivers or presents to another person, or provides through telecommunication lines, copies of evidence pertaining to the evidence prescribed in Article 445-4 for the purpose of obtaining property profits or other profits as consideration.

The court that made the ruling to commence a hearing must, by the time it closes the hearing, hear the opinions of the retrial requester (or, where the retrial requester is a person set forth in Article 439, paragraph (1), item (iii), the retrial requester and the person who has been found guilty), the defense counsel and the public prosecutor on the request for a retrial.

In order to close the hearing, the court that made the ruling to commence a hearing must fix the date on which the hearing is to be closed (referred to as the "hearing closing date" in this Article). In this case, it must in advance hear the opinions of the retrial requester or the defense counsel, and of the public prosecutor, on the closing of the hearing.

The court that made the ruling to commence a hearing may change the hearing closing date upon the request of the retrial requester, the defense counsel or the public prosecutor, or ex officio.

To change the hearing closing date, the court must in advance, as prescribed by the Rules of Court, hear the opinions of the retrial requester or the defense counsel, and of the public prosecutor; provided, however, that this does not apply in cases requiring urgency.

The hearing closing date must be notified to the retrial requester, the defense counsel and the public prosecutor.

When the court that made the ruling to commence a hearing has closed the hearing, it must promptly fix the date on which it is to make a ruling on the request for a retrial (referred to as the "ruling date" in this Article).

The court that made the ruling to commence a hearing may change the ruling date.

The provisions of paragraph (5) of the preceding Article apply mutatis mutandis to the ruling date.

The court that made the ruling to commence a hearing may, when it finds it appropriate, reopen the closed hearing by a ruling, upon the request of the retrial requester, the defense counsel or the public prosecutor, or ex officio.

Where a ruling to commence a hearing has been made, if the retrial requester dies, the procedure for the request for a retrial is suspended. In this case, the persons set forth in Article 439, paragraph (1), items (ii) through (iv) may take over that procedure.

A petition for taking over under the second sentence of the preceding paragraph must be filed within one month after the date of death of the retrial requester.

When a suspension under the provisions of paragraph (1) has occurred, the period for filing an immediate appeal or a kokoku-appeal under Article 433, paragraph (1) ceases to run. In this case, the entire period begins to run anew from the time of the taking over under the second sentence of paragraph (1).

If the petition referred to in paragraph (2) is not filed within the period set forth in that paragraph, the court that made the ruling to commence a hearing must dismiss the request for a retrial by a ruling.

Where a , as a result of the hearing, it becomes clear that a request for a retrial has been filed contrary to the form provided in laws and regulations or has been made after loss of the right to request a retrial, a ruling shall be renderedthe court that made the ruling to commence a hearing must render a ruling to dismiss such request.

Where a the court that made the ruling to commence a hearing finds as a result of the hearing that a request for a retrial is groundless, a ruling shall be renderedit must render a ruling to dismiss such request.

When a ruling as prescribed in the provisions of the preceding paragraph has been rendered, no person may further request a retrial on the same grounds.

When Where the court that made the ruling to commence a hearing finds as a result of the hearing that there are grounds for a request for a retrial, a ruling shall be renderedit must render a ruling to commence a retrial.

When a ruling to commence a retrialunder the provisions of the preceding paragraph has been rendered, a ruling may be rendered to suspend execution of the sentence.

An immediate appeal may be filed against a ruling under Article 444-2, paragraph (2) (limited to the part pertaining to item (i)), Article 446, Article 447, paragraph (1), or paragraph (1) of the preceding Article.

An immediate appeal may be filed against a ruling under Article 444-2, paragraph (2) (limited to the part pertaining to item (ii); the same applies in paragraph (3), item (i)) or Article 448, paragraph (1) only when there are sufficient grounds to find that the ruling should be rescinded.

A kokoku-appeal under Article 433, paragraph (1) against a ruling dismissing the immediate appeal under the preceding paragraph, or against a ruling under Article 448, paragraph (1) as applied mutatis mutandis pursuant to Article 450-5, paragraph (1) rendered by the appellate court before which the immediate appeal under the preceding Article (limited to one against a ruling under Article 446 or Article 447, paragraph (1)) is pending, may be filed only when there are sufficient grounds to find that the ruling should be rescinded.

When a ruling under Article 448, paragraph (1)444-2, paragraph (2) or Article 448, paragraph (1) (including cases where applied mutatis mutandis pursuant to Article 450-5, paragraph (1)) (excluding one rendered by the Supreme Court) has been rendered: that fact, whether the public prosecutor has filed an immediate appeal against the ruling or a kokoku-appeal under Article 433, paragraph (1), and the grounds therefor if the public prosecutor has filed such an immediate appeal or kokoku-appeal;

The appellate court before which an immediate appeal against a ruling under Article 444-2, paragraph (2) (excluding the part pertaining to item (iii)) is pending must investigate that immediate appeal.

Notwithstanding Article 43, paragraph (3), the appellate court set forth in the preceding paragraph may not conduct an examination of the facts.

When the immediate appeal under paragraph (1) has grounds, the appellate court must, notwithstanding Article 426, paragraph (2), rescind the original ruling by ruling and remand the case to the court that received the request for a retrial.

The provisions of the preceding three paragraphs apply mutatis mutandis to the appellate court before which a kokoku-appeal under Article 433, paragraph (1) against an appellate court ruling pertaining to the immediate appeal under paragraph (1) is pending.

The provisions of Article 445, paragraphs (2) and (3), Article 445-2, Article 445-3, Articles 445-7 (excluding paragraph (1)) through 445-9, Article 445-10, paragraph (4) and Articles 446 through 448 apply mutatis mutandis to the appellate court before which an immediate appeal against a ruling under Article 446, Article 447, paragraph (1) or Article 448, paragraph (1) is pending. In this case, the phrase "request for a retrial" in Article 445-8, paragraph (1) is deemed to be replaced with "immediate appeal".

The provisions of Article 445, paragraphs (2) and (3), Article 445-2, paragraphs (1) and (2), Article 445-3, paragraphs (1) through (3), Article 445-10, paragraph (4) and Articles 446 through 448 apply mutatis mutandis to the appellate court before which a kokoku-appeal under Article 433, paragraph (1) against an appellate court ruling pertaining to the immediate appeal under the preceding paragraph is pending.

The provisions of the main text of paragraph (1) of Article 314, and item (iv) of paragraph (1) of Article 339 shall not apply to a trial as prescribed in the preceding paragraph when:

The request for a retrial is made for a person who is deceased or a person in a state of insanity with no prospect for recovery; or

The person who has been found guilty dies or falls into a state of insanity with no prospect for recovery, before the judgment in the retrial.

In the case set forth in the preceding paragraph, the court may try the case in absence of the defendant; provided, however, that the trial cannot begin in absence of defense counsel.

In the case set forth in paragraph (2), when the person who has filed a request for a retrialretrial requester has not appointed defense counsel, the presiding judge shall appoint defense counsel for the defendant ex officio.