Final appeal means an appeal to the Supreme Court against the judgement of the court of first instance done by a high court or the judgement made by the court of second instance. In cases where a district court, family court or summary court made a constitutional judgement, it is possible to appeal directly to the Supreme Court without appealing to the court of second instance against the judgement (Direct Appeal to the Supreme Court). Final appellate court is the appellate proceedings for reviewing the decision of prior instance based on the facts and evidence found by the court of prior instance the same as the appeal to the court of second instance, and is the court in charge of reviewing the question of law that determines the constitutionality eventually and consolidates the interpretation of laws and regulations. However, it also takes a role in giving appropriate remedy in each case at the same time. While the final appellate court is the final instance of the three-tiered judicial system, the range of final appeal as of right is limited not to overburden the Supreme Court and other types of final appeal depend on the discretion of the Supreme Court.
~Reasons for Final Appeal~
Grounds for Final Appeal as of Right
The reasons for final appeal are limited to a violation of the Constitution, error in interpretation of the Constitution, and contravention of precedents. A violation of the Constitution means that the contents of the original judgement or the proceedings at the court of second instance violates the constitution. Error in interpretation of the Constitution indicates an error in interpretation of the Constitution shown in the original judgement on a decision on the reasons for appeal to the court of second instance or ex officio decision.
Contravention of precedents means that a court made a judgement which conflicts with the precedents of the Supreme Court (in the event that there is no Supreme Court precedent, a determination has been rendered that conflicts with a precedent of the former Supreme Court or a high court that was the court of the final appellate court or that conflicts with a precedent of a high court that was the court of second instance at a time after the enforcement date of the Code of Criminal Procedure).
Final Appeal Demanding Ex Officio Reversal (Discretionary Final Appeal)
Even if there are no reasons for final appeal as of right, the Supreme Court may reverse the original judgement at its discretion when a certain amount of grounds is permitted.
- There is a violation of laws and regulations which would have affected the judgement;
- The degree of punishment is seriously unfair;
- There is an erroneous finding of a material fact which would have affected the judgement;
- There are grounds to request a retrial;
- There was an abolition or a change of punishment or a general pardon was granted after the judgement was rendered.
The Supreme Court may reverse the original judgement on any of the grounds above when it deems that not doing so would be clearly contrary to justice.
These grounds are not the reasons for final appeal but just the grounds that the Supreme Court as final appellate court may dismiss the original judgement at its discretion. Thus, only asserting these grounds is not appropriate way of final appeal. However, in practice there are quite a lot of cases filing a petition for final appeal on the ground of inappropriateness of sentencing or error in fact as the Supreme Court might decide at its discretion. Normally the appellant files a petition of final appeal on the grounds above together with the grounds of final appeal as of right.
~Proceedings of Final Appeal~
Both final appeal and petition for acceptance of final appeal must be filed within 14 days after pronouncement of judgement of the court of second instance. For the petition for final appeal, one submits the petition for final appeal or petition for acceptance of final appeal to an original court (normally, high court). The Supreme Court which has received the petition for final appeal informs the petitioner of submission of the written statement of reasons for final appeal appointing the final day by which a statement of the reasons for final appeal is to be submitted, not earlier than the 28 th day after the day following service on the appellant of the written notice designating such final day.
The final appellate court basically does not examine the evidence but conducts documentary examination. Exceptionally a trial is held in serious cases or in cases where there is a possibility of reversal of the original judgement. In such cases, the accused does not have the right to appear before the court.
~Organization of the Supreme Court~
The Supreme Court consists of 15 judges. A judgement is to be rendered by three judicial panels that each panel consists of 5 judges (petty bench) or a judicial panel consisting of all 15 judges (full bench). At the Supreme Court as a final appellate court, it seems that judges take their turn to be in charge of discussion of cases when a research official of the Supreme Court deems that there is nothing wrong with the original judgement after the research official examined the case records, while the judicial panel discuss the cases when there is something wrong with the judgement.
~Categories of Decisions of Final Appellate Court~
Judgement Reversing the Original Judgement
When the Supreme Court deems that there are the grounds of final appeal as of right, it reverses the original judgement on a judgement, except; when it is clear that the grounds would not affect the original judgement. Also, when the Supreme Court deems that there are the grounds of ex officio reversal and not reversing the original judgement would be clearly contrary to justice, it may reverse the original judgement on a judgement.
Judgement Dismissing Final Appeal
The final appellate court may enter a judgment to dismiss the final appeal without hearing oral arguments when it is deemed to be clear that there are no grounds for a final appeal in the written statement of the reasons for appeal. Where it is deemed that there are no grounds for a final appeal after having heard oral arguments, the final appellate court dismisses the final appeal on a judgement.
Ruling Dismissing Final Appeal
When it is clear that a final appeal is unlawful such as an insufficient request for final appeal or formal flaw, the final appellate court dismisses the final appeal on a ruling.
For example, where a written statement of the reasons for final appeal was not submitted within the time frame of submission, a written statement is unlawful, the grounds asserted are not applicable to the reasons for final appeal set in the laws. In most cases, the final appellate court has dismissed the final appeal on a reason as seen in the last example.
~Lawyer’s Role at Final Appellate Court~
1. Prepare for the Written Statement of the Reasons for Final Appeal
At the final appellate court as well as the court of second instance, the trial is to be conducted by documentary proceedings which examine whether there are any errors in the original judgement through the previous case records. As in most cases a trial is not to be held, It is not too much to say that preparation for the written statement of the reasons for final appeal is all about the defense activities by lawyer. In preparing the written statement, it is necessary to scrutinize the previous case records in detail and check whether there is a violation of the Constitution or the precedents. In fact, there are a lot of cases where only an error in fact or violation of laws and regulations come to an issue, it is also necessary to assert about these issues fully to aim at discretional decision of the final appellate court.
2. Release Activities
It goes without saying that release as soon as possible is desirable even at the final appellate court. Lawyers act on release in a way appropriate to each case for those who are detained for a long time until the final appellate court.
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