1.1 However, in light of the text of Article 99, paragraph (2) and Article 218, paragraph (2) of the Code of Criminal Procedure, the legislative backgrounds of those provisions, such as the fact that the provisions were established as part of development of procedural law to conclude the Convention on Cybercrime (Convention No. 7 of 2012), and the content of the provisions of Article 32 of the same Convention, etc., the Code of Criminal Procedure is not considered to assume only remote access, etc. to recording media located within Japan under the aforementioned provisions. It should be considered that in the situation where a recording medium on which electronic or magnetic records are stored is located in a State party to the same Convention and a person who has the lawful authority to disclose the same records gives the lawful and voluntary consent to the disclosure thereof, it is permitted to remotely access the same recording medium and copy the same records without depending on international assistance in investigation.
1.2 On that basis, first examining the admissibility of the evidence collected through Procedure [A], Procedure [A] is not found to be based on the voluntary consent of persons concerned in Y. Therefore, it can neither be considered to be lawful as a voluntary investigation nor be considered to fall under the cases provided in Article 32 of the aforementioned Convention. However, as explained in the judgment in prior instance, Procedure [A] can substantially be considered to be a procedure based on the aforementioned search and seizure warrant issued after going though judicial review, and the police collected evidence that was described as the subject of seizure, etc. in the same warrant through the same procedure as the execution of the same warrant and are not found to have conducted the collection of evidence, etc. beyond the scope of disposition permitted by the same warrant. In addition, based on the facts of this case, the police's adoption of the policy of conducting remote access, etc. with the voluntary consent of persons concerned in Y without depending on international assistance in investigation itself cannot be considered to be unreasonable. It is also neither found that the police behaved in such a way as to force persons concerned in Y to give consent, other than the police's failure to clearly explain that the remote access, etc. was conducted as investigation based on the voluntary consent, nor that the police had the intention of escaping from various provisions on the principle of warrants. For the reasons described above, it cannot be said that Procedure [A] contains serious illegality.
Incidentally, the defense counsel also argues as follows: under control based on the principle of warrant[s], it is, in principle, permitted to seize only articles that are found to be related to the alleged facts of crime, and the act of the police contains illegality of comprehensive acquisition of the electronic or magnetic records without questioning the relationship to the alleged facts of crime. However, in light of the aforementioned facts, there is the probability that information related to the aforementioned alleged facts of crime is recorded on the electronic or magnetic records to be copied based on the aforementioned search and seizure warrant. In light of the difficulty of confirming the content of the electronic or magnetic records at the scene of seizure and the likelihood of causing damage, etc. to information during confirmation work as pointed out in the judgment in prior instance, it is considered permissible in this case to copy the electronic or magnetic records without individually confirming the content thereof in executing the same warrant. The defense counsel's arguments are not acceptable.
Moreover, according to the progress mentioned in (1) above, the determination of the court of prior instance that denied existence of ground for denying the effect of the consent of persons concerned in Y with regard to Procedure [B] cannot be considered unreasonable. In light of the explanations made above, Procedure [B] cannot be considered to contain serious illegality.
For the reasons described above, the admissibility of the evidence collected by the police through Procedures [A] and [B] can be affirmed, respectively, and the conclusion of the judgment in prior instance to the same effect is legitimate.