覚せい剤取締法違反容疑の捜索で滋賀県に賠償命令 大津地裁（産経ニュース 2009.2.26 19:55）
石原裁判長は判決理由で、県について「捜査の密行性を理由に情報提供者の供述調書の大部分を黒塗りにするなど、供述を信用した根拠を明らかにしていない」と指摘し、「損害の賠償責任を免れない」とした。
こういう理由で賠償責任を認められるとしますと、警察がこの種の訴訟で情報提供者が特定されるおそれがある証拠（供述内容の重要部分も含まれます）を公開法廷で明らかにすることは考えられませんので、捜索が空振りに終わった場合には常に損害賠償が認められる可能性が出てきます。
一方、令状発付については「違法とする特別な事情は認められない」として国への請求は退けた。
令状を発付した裁判官は、当然、黒塗りではない調書を全て読んでいます。
そして、その調書には信用性がある、つまり令状発付裁判官は供述を信用するに足る根拠があるとして令状を発付しているわけです。
本件を担当した石原稚也裁判官は、この令状発付裁判官の判断にはまったく重きをおかないのでしょうか？
この判決は、令状主義における裁判官の役割を単なるお飾りにしか考えていないように思われます。
もっとも、警察が証拠を捏造して令状の発付を受ける、つまり令状を詐取する可能性は常に存在します。
そして、現在の実務では令状発付裁判官に警察の捏造を見抜くことを期待することは現実的ではありません。
要するにお飾り的裁判官がほとんどであるとも言えます。
その意味では、石原裁判官は現状を認識しているとも言えます（もちろん皮肉）。
しかし、捜査の密行性の要請は無視できません。
結局、この種の問題を通常の民事訴訟手続で処理することに無理があるのかも知れません。
令状審査は「捏造か否かを見抜く」ことに尽きるわけでもないし、その点の審査が主眼でもないでしょうから、
この「要するに」というつなぎは不適切なように思われます。
もちろん、捜査機関による捏造が頻繁にあるのならば、常に「捏造か否か」を厳密にチェックすべきであり、それをしないことを「お飾り」と批判することもあってよいと思いますが、実態はどうなのでしょうか。また、弁号証についても捏造の可能性は常に存在しますが、こちらも一々「捏造かどうかの審査」をすべきなのでしょうか。
捏造の可能性を疑わせる事情がない限り、ひとまず真正に成立したものという前提で内容の検討をするのが普通というか、常識的な感覚なのかな、と思っていましたが････。
本筋についても若干。
「捜査の密行性」と、「捜査が適切であったことの証明」は、相反する関係にはあるものの、オールオアナッシングで捉える必要もないはずです。
要するに、情報提供者が特定されない限度で、あるいは特定されないような工夫をしつつ、「相応の根拠に基づく捜索であったこと」を説明することも可能な場合があるだろうと。一般論としては（実際にはそれが難しいのでしょうけど。）。
報道からは全く分かりませんが、本件では、想像するに、裁判所からの「少なくともこの辺りまでは説明してよ、その程度なら問題ないでしょ」という求釈明を、県側が蹴ったのではないかと。
詳しい事実関係はよく分かりませんが・・・
個人的には県の敗訴は致し方ないと思います。
県側が十分な証拠を提出しなくても県を勝訴させれば、結果的に無実だった人物を犠牲にしなければなりません。
県としては裁判で勝つか情報提供者を守るかを考えた結果、情報提供者を守ることを決めた以上裁判で負けても仕方ない。
ジャーナリスト(一部の自称を除くｗ)が取材源の秘匿を優先させて名誉毀損訴訟で敗訴することと近い構造ですが。
今回は尿検査で陰性だったということですから、原告は無実であった可能性が高いケースだったわけですが、
捜索は空振りに終わったが、その後発見された証拠から有罪であることが分かった人物のようなケースはまた別の結論を導き出す必要があるかもしれません。
今回のケースで裁判所の責任を認めなかったのは私も解せません。令状を請求したほうは負けで許可したほうは勝ち、というのは釈然としません。
要するに、裁判官が自己矛盾の供述^H^H判決を書いたわけですね。高裁で破棄される典型例だと思います。
憲法４０条の精神からは、証拠捏造などが無くても、結果として無実であれば、任意の捜査段階だとしても、令状の対象となった被疑者に迷惑掛けたわけだから何らかの補償をすべきだと思いますがねえ。
一般的に捜査の結果として無実が判明することは想定内だと思われます。
原告が不法行為として捉えている内容が違う（個人としての令状発付裁判官による審査行為と、組織としての県警による捜索行為）以上、請求原因も違うし、被告も別だし（国と県）、当然反論の内容も違ってくるので、矛盾と言い切るのはやや乱暴でしょう。
････とは言うものの、私も、高裁で破棄されるのではないかと思いますが。両者に対する請求を棄却するというかたちで。
＞No.6 （ただいま謹慎中）さま
ご指摘のとおり請求原因や要件事実までガリゴリ詰めればごもっともだと思います。やや行き過ぎた表現だったことをお詫びします。m(_ _)m
＞No.5 元外科医さま
確か刑事補償に準じたかたちで「被疑者補償規則」で補償されていると思います。
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