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2004.12.11

テロ対策としての来日外国人の指紋採取は許されるのか?

 12月10日、政府は「国際組織犯罪等・国際テロ対策推進本部」(本部長・細田博之官房長官)を開催し、テロリストの入国阻止や情報収集に必要な対策をまとめた「テロの未然防止に関する行動計画」を決定したと報じられている。
 具体的には、(1)入国審査時に外国人の指紋を採取し、写真を撮影(2)指定したテロリストの入国を阻止し、強制退去させる(3)航空機や船舶の乗員乗客名簿を事前提出(4)ホテルなどで外国人宿泊客の身元確認を強化(5)民間の定期航空便に警察官が搭乗する「スカイマーシャル」を導入することが列挙され、通達などで対応できる方策は今年度中にも実施する方針だという(NIKKEI NETの記事)。

 アメリカ政府は、2001年の9.11の同時多発テロ以降、ビザ免除国以外の国民の入国時に、指紋採取とデジカメ撮影を義務化していましたが、2004年9月30日からは、ビザ免除国の国民が入国する際には指紋採取とデジカメ撮影が義務化され、日本人もその義務を負っている(All About「エアチケット」、具体的な方法はJALのホームページに写真がある)。

 私が、アメリカがこれを実施したと知った時(但し、最初の1回は免除されるとも聞くが)、アメリカに行くのは嫌だと思ったものである。 
 ところが、遂に、日本も、アメリカに追従して、日本に来る外国人に対して、指紋採取と写真撮影をすることを決めたのである。

 ところで、日本にいる者については、次のような刑事訴訟法の規定の場合を除いては、裁判所が発行する令状がなければ指紋を採取されたり、写真撮影されないことになっている。

刑事訴訟法218条2項  身体の拘束を受けている被疑者の指紋若しくは足型を採取し、身長若しくは体重を測定し、又は写真を撮影するには、被疑者を裸にしない限り、前項の令状によることを要しない。

 また、以前に、我が国に、指紋押捺制度があったことは記憶に新しいだろう。この制度は、日本では1992年に廃止されたが、それ以前には憲法や国際人権法に違反するとして多くの裁判が提起されたが、残念ながら、最高裁判所の判断では、憲法違反ではないという判断がなされていた。

「戸籍制度のない外国人の人物特定につき最も確実な制度として、指紋押なつ制度を採用したものであって、その立法目的には十分な合理性があり、かつ、必要性も肯定することができる。そして、上告人が指紋押なつを拒否した昭和60年6月27日当時における制度の内容は、押なつ義務が5年に1度で、押なつ対象指紋も一指のみであり、加えて、その強制も罰則による間接強制にとどまるものであって、精神的、肉体的に過度の苦痛を伴うものとまではいえず、方法としても、一般的に許容される限度を超えない相当なものであったと認められる。したがって、外国人登録法14条は、憲法13条に違反するものではない。  また、在留外国人を対象とする指紋押なつ制度には、右のような目的の合理性、必要性、相当性が認められ、戸籍制度のない外国人については、日本人とは社会的事実関係上の差異があって、その取扱いに差異を設けることには合理的根拠があるので、外国人登録法14条は、憲法14条に違反するものでもない。」(最高裁平成8年2月22日第一小法廷判決・訟務月報43巻2号754頁)

 もっとも、例えば、日弁連は、この制度について、次のような決議をしている(1985年10月19日)。

「外国人登録法に定める外国人に対する指紋の押捺制度は、それが刑事罰による強制と相まって個人の尊厳と法の下の平等を定めた憲法13条、14条及び品位を傷つける取扱いの禁止を定めた国際人権規約B規約7条、法の前の平等、差別的取扱いの禁止を定めた同26条違反の疑いが強(い)」(外国人に対する指紋押捺制度に関する決議)

 ところが、「テロ対策」を理由に、単に日本を訪れただけの者全てに、指紋の採取を義務づけるという。これは来日外国人の個人の尊厳を傷つけるおそれがある。アメリカがやっているから、日本もやって良いということにはならないはずである。

 ところが、細田博之官房長官、記者会見で、日本に入国する外国人から指紋採取する方針を決めたことについて「人権には十分配慮しながら導入したい」と述べたと報じられている(NIKKEI NETの記事)。
 
 そもそも、指紋採取と写真撮影自体が人権を侵害するものであるにもかかわらず、それを「人権には配慮して」という言い方は矛盾も甚だしい。人権に配慮するのであれば、指紋採取と写真撮影をやめるべきであり、それはやめないが人権は侵害しないということはありえないことである。ここでも、小泉政権の特徴である「言葉」だけで実態をごまかしてしまうという手法が見られるのである。

 私たち日本人には直接関係がないことのように見えることから、あまり反発の声も挙がっていないようであるが、日本が、来日外国人に対して、こういう仕打ちをする人権のレベルの低い国と思われることは、日本人としては恥と考えるべきではないか。

 なお、報道によると、テロ対策として検討課題にあがっていた通信傍受法改正やテロリストの無令状拘束などは導入を見送ったという。今回の対策のうち、これをやらなかったという点だけは評価することができるかもしれない。

(2004年12月23日追記)
 私のホームページ「人権・報道・インターネット」に、「政府のテロの未然防止に関する行動計画について考える」を掲載しましたので、そちらも参照していただければ幸いです。

【Today's Back Music】
 FOUR of a KIND/FOUR of a KIND II(VICJ-61239)
  日本を代表する塩谷哲(p.key)、青木智仁(b)、沼澤尚(dr)、本田 雅人(sax)で結成されたスーパー・フュージョン・バンドの2作目。意外と地味な気もするが、安定感があり、何度も聴くと味が出るようなサウンドです。

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