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2012 (Ju) 1311

2013.12.10
2012 (Ju) 1311
Minshu Vol. 67, No.9
Judgment concerning whether or not it is unlawful in the context of application of Article 1, paragraph (1) of the State Redress Act for the warden of a penal institution to decide not to allow an inmate sentenced to death and the defense counsel appointed to file a request for a retrial on behalf of the inmate, despite their request, to have or make a visit without the attendance of a staff member of the penal institution in order to have discussions regarding the filing of the request for a retrial
Case to seek damages
Judgment of the Third Petty Bench, dismissed
Hiroshima High Court, Judgment of January 27, 2012
Where an inmate sentenced to death or the defense counsel to file a request for a retrial on behalf of the inmate requested to have or make an unattended visit in order to have discussions regarding the filing of the request for a retrial, if the warden of the penal institution makes a decision not to allow the visit despite their request, such a decision by the warden of the penal institution should be regarded as going beyond the bounds of the discretion vested in him/her or constituting an abuse thereof and thereby not only harming the interest of the inmate sentenced to death to have an unattended visit but also harming the inherent interest of the defense counsel to file a request for a retrial to make an unattended visit, and thus it is unlawful in the context of application of Article 1, paragraph (1) of the State Redress Act, unless there are special circumstances such as where allowing an unattended visit would result in undermining the discipline and order in the penal institution or where it is found to be highly necessary to ascertain the stability of the mental conditions of the inmate sentenced to death in light of his/her willingness to have a visit.
Part II, Chapter II, Section 11, Subsection 2 Visits, and Article 121 of the Act on Penal Detention Facilities and Treatment of Inmates and Detainees; Article 39, paragraph (1) and Article 440, paragraph (1) of the Code of Criminal Procedure; Article 1, paragraph (1) of the State Redress Act

Act on Penal Detention Facilities and Treatment of Inmates and Detainees
(Attendance and Recording during Visits)
Article 121
The warden of the penal institution shall have a designated staff member attend at a visit to an inmate sentenced to death, or make a sound or video recording of it; provided, however, that this shall not apply in cases where there is a circumstance to be concluded that not having the attendance or the sound or video recording is appropriate in order to protect such legitimate interest of the inmate sentenced to death as arrangements for a lawsuit, and if such conclusion is deemed appropriate.

Code of Criminal Procedure
Article 39
(1) The accused or the suspect in custody may, without any official being present, have an interview with, or send to or receive documents or articles from counsel or prospective counsel upon the request of a person entitled to appoint counsel (with regard to a person who is not a lawyer, this shall apply only after the permission prescribed in paragraph (2) of Article 31 has been obtained).

Article 440
(1) When a person other than the public prosecutor requests a retrial, such person may appoint counsel.

State Redress Act
Article 1
(1) When a public officer who exercises the public authority of the State or of a public entity has, in the course of his/her duties, unlawfully inflicted damage on another person intentionally or negligently, the State or public entity shall assume the responsibility to compensate therefor.
The final appeal is dismissed.
The appellant of final appeal shall bear the cost of the final appeal.
Concerning the reasons for petition for acceptance of final appeal argued by the agents appointed for final appeal, AONO Hiroshi, et al. (except for those excluded)
1. In this case, the appellees of final appeal, who are an inmate sentenced to death and the defense counsel appointed to file a request for a retrial on behalf of the inmate (hereinafter referred to as the "defense counsel to file a request for a retrial"), allege that it is unlawful for the warden of the detention house to have decided not to allow the defense counsel to visit the inmate without the attendance of a staff member of the detention house, and based on this allegation, they seek damages against the appellant of final appeal under Article 1, paragraph (1) of the State Redress Act, including solatium for the mental distress that they suffered from such unlawful decision.

2. The outline of the facts legally determined by the court of prior instance is as follows.
(1) A. Appellee X1 was prosecuted in the case charged for the crimes of robbery and homicide, etc. (hereinafter referred to as the "Criminal Case") and he/she contested mainly the sentence handed to him/her. The court of first instance and the court of second instance in the first trial of the Criminal Case sentenced Appellee X1 to life imprisonment with work, but the court of final appellate instance in the first trial, to which the prosecutor filed a final appeal, quashed the judgment in prior instance and rendered a judgment to remand the Criminal Case to the court of prior instance. In the second trial, the court of second instance rendered the death sentence and the court of final appellate instance rendered a judgment to dismiss Appellee X1's final appeal, and the death sentence became final and binding. Since then, Appellee X1 has been detained at the Hiroshima Detention House as an inmate sentenced to death.
B. Appellee X2 and Appellee X3 (hereinafter collectively referred to as "Appellees X2 and X3") are attorneys who were appointed as the court-appointed defense counsel for the second instance in the second trial of the Criminal Case and then appointed as the private defense counsel for the final appellate instance in the second trial.
(2) A. Around April 1, 2007, Appellee X1 appointed Appellees X2 and X3 as his/her defense counsel to file a request for a retrial of the Criminal Case. On June 5, 2007, Appellee X3 made a visit to Appellee X1 with the attendance of a staff member of the detention house (hereinafter referred to as an "attended visit") and told Appellee X1 that Appellees X2 and X3 would make preparation for filing a request for a retrial of the Criminal Case.
B. On June 25, 2007, in an interview with a staff member of the Hiroshima Detention House, Appellee X1 stated that he/she had been told by Appellee X3 that Appellees X2 and X3 would make preparation for filing a request for a retrial but he/she had nothing to worry about in terms of his/her mental or physical condition.
(3) A. On May 2, 2008, Appellees X2 and X3 requested the department in charge of the Hiroshima Detention House to allow them to make a visit to Appellee X1 without the attendance of a staff member of the detention house (hereinafter referred to as an "unattended visit") on the grounds that they needed to make such visit in order to have discussions with Appellee X1 regarding the filing of a request for a retrial as the defense counsel to file a request for a retrial on behalf of him/her. On this occasion, Appellee X2 submitted to the staff member of the detention house a notification of appointment of defense counsel in connection with Appellee X1's filing of a request for a retrial. Upon an unattended visit, Appellees X2 and X3 planned to explain to Appellee X1 their defense approach in filing a request for a retrial and confirm his/her willingness to undergo an additional psychiatric evaluation, and to question him/her about the circumstances as to whether there was any fact that could support their defense approach.
In response, the Warden of the Hiroshima Detention House decided not to allow Appellees X2 and X3 to make an unattended visit to Appellee X1. However, a staff member of the Hiroshima Detention House told Appellees X2 and X3 that when they were to start discussions with Appellee X1 regarding the matters which would need to be kept secret in connection with the filing of a request for a retrial after the next attended visit commenced, if Appellee X1 were to request the staff member in attendance to allow him/her to have an unattended visit, the staff member would consider whether or not an unattended visit should be allowed. As there was no choice, Appellee X2 made an attended visit to Appellee X1 and told Appellee X1 that they would be able to have discussions regarding the filing of a request for a retrial upon an unattended visit next time.
B. On May 9, 2008, in an interview by a staff member of the Hiroshima Detention House, Appellee X1 stated that he/she was undecided about filing a request for a retrial and he/she had not notified Appellees X2 and X3 of his/her final decision as to whether or not to file a request for a retrial.
(4) A. On July 15, 2008, Appellees X2 and X3 requested the department in charge of the Hiroshima Detention House to allow them to make an attended visit to Appellee X1, planning to switch it to an unattended visit when they were to start discussions regarding the filing of a request for a retrial, and made an attended visit to Appellee X1. After hearing from Appellees X2 and X3 the latest news and other matters, Appellee X1 requested the staff member in attendance to allow him/her to have an unattended visit. However, the Warden of the Hiroshima Detention House did not allow Appellees X2 and X3 to make an unattended visit to Appellee X1. As a result, although Appellee X1 told Appellees X2 and X3 during the attended visit that he/she wanted them to file a request for a retrial, they were unable to make an unattended visit to Appellee X1 and therefore were unable to have discussions with him/her regarding the filing of a request for a retrial.
B. On July 25, 2008, in an interview by a staff member of the Hiroshima Detention House, Appellee X1 stated that on the occasion of the attended visit mentioned in A. above, he/she had thought that the staff member's attendance would be discontinued when he/she started discussions with his/her defense counsel regarding a retrial but he/she had been told that the staff member would remain in attendance even after their discussions regarding a retrial started, and due to this, he/she became offended and somewhat excited.
(5) On August 12, 2008, Appellees X2 and X3 requested the department in charge of the Hiroshima Detention House to allow them to make an unattended visit to Appellee X1, but the Warden of the Hiroshima Detention House did not allow their unattended visit. As there was no choice, Appellees X2 and X3 made an attended visit to Appellee X1 and explained the situation to him/her. On the occasion of this attended visit, Appellees X2 and X3 confirmed Appellee X1's intention to file a request for a retrial, but they were unable to have discussions with him/her regarding the filing of a request for a retrial.

3. The court of prior instance partially upheld the appellees' claim, holding that the decisions made by the Warden of the Hiroshima Detention House not to allow Appellees X2 and X3 to make an unattended visit to Appellee X1 on the occasion of their visits on May 2, July 15 and August 12, 2008 (hereinafter referred to as the "Visits"; these decisions made by the Warden of the Hiroshima Detention House shall hereinafter be referred to as the "Decisions") should be judged to be unlawful in relation to all of the appellees in the context of application of Article 1, paragraph (1) of the State Redress Act. The agents appointed for final appeal argue that the court of prior instance erred in the interpretation and application of laws and regulations because the court of prior instance found the Decisions to be unlawful in relation to all of the appellees in the context of application of Article 1, paragraph (1) of the State Redress Act despite the facts that [i] deciding on whether or not to allow an unattended visit is left to the professional and technical discretion of the warden of a penal institution, and in this respect, it should be said that the Decisions did not go beyond the bounds of such discretion or constitute an abuse thereof, and that [ii] the defense counsel to file a request for a retrial should not be vested with an inherent right to make an unattended visit to his/her client.
4(1) The warden of a penal institution has the authority to decide whether or not to allow an inmate to have a visit by a person from outside, and has the official duty to exercise such authority appropriately from the perspective of, among others, maintenance of discipline and order in the penal institution and adequate pursuance of correctional treatment of a sentenced person (Part II, Chapter II, Section 11, Subsection 2 of the Act on Penal Detention Facilities and Treatment of Inmates and Detainees (hereinafter referred to as the "Penal Detention Facilities Act")). With regard to the treatment of an inmate sentenced to death, the main clause of Article 121 of said Act provides for the principle that the warden of the penal institution shall have a designated staff member attend a visit or make a sound or video recording thereof, while the proviso to said Article leaves it to the discretion of the warden of the penal institution to decide whether or not to allow an unattended visit in order to enable the inmate sentenced to death to make arrangements for a lawsuit or protect such inmate's other legitimate interest, thus making it an official duty of the warden of the penal institution to respect the inmate's legitimate interest to a certain extent.
Article 440, paragraph (1) of the Code of Criminal Procedure provides that when a person other than the public prosecutor requests a retrial, such person may appoint counsel. In order to enable an inmate sentenced to death to file a request for a retrial, it is necessary to substantially guarantee him/her the opportunity to receive assistance from the defense counsel to file a request for a retrial, and therefore, the inmate sentenced to death, even during the stage of having discussions before filing a request for a retrial, is entitled to the interest to have an unattended visit by the defense counsel to file a request for a retrial as his/her "legitimate interest" referred to in the proviso to Article 121 of the Penal Detention Facilities Act.
Protection of the inmate's interest to have an unattended visit as mentioned above is absolutely necessary in order to assure that the defense counsel to file a request for a retrial, who is to make such visit, can carry out their activities for this purpose sufficiently and it is also important in order to enable an inmate sentenced to death to exercise his/her right of access to defense by defense counsel. What is more, considering that the right to have an interview or exchange objects without attendance, guaranteed to an accused or a suspect under Article 39, paragraph (1) of the Code of Criminal Procedure, is regarded as one of the important rights inherent to the defense counsel (1974 (O) No. 1088, judgment of the First Petty Bench of the Supreme Court of July 10, 1978, Minshu Vol. 32, No. 5, at 820), it is appropriate to construe that in light of the purport of Article 440, paragraph (1) of the Code of Criminal Procedure as described above, the interest to make an unattended visit to an inmate is also an interest inherent to the defense counsel to file a request for a retrial.
Thus, from the viewpoint that the interest to have or make an unattended visit is important not only to an inmate sentenced to death but also to the defense counsel to file a request for a retrial, the warden of the penal institution should, when exercising the authority to decide whether or not to allow a visit to an inmate sentenced to death, give full respect to the interest of the inmate sentenced to death and of the defense counsel to file a request for a retrial to have or make an unattended visit.
Consequently, where an inmate sentenced to death or his/her defense counsel to file a request for a retrial requested to have or make an unattended visit in order to have discussions regarding the filing of a request for a retrial, if the warden of the penal institution makes a decision not to allow the visit despite their request, it is appropriate to construe that such a decision by the warden of the penal institution should be regarded as going beyond the bounds of the discretion vested in him/her or constituting an abuse thereof and thereby not only harming the interest of the inmate sentenced to death to have an unattended visit but also harming the inherent interest of the defense counsel to file a request for a retrial to make an unattended visit, and thus it is unlawful in the context of application of Article 1, paragraph (1) of the State Redress Act, unless there are special circumstances such as where allowing an unattended visit would result in undermining the discipline and order in the penal institution or where it is found to be highly necessary to ascertain the stability of the mental conditions of the inmate sentenced to death in light of his/her willingness to have a visit.
(2) This reasoning can be applied in this case as follows. According to the facts mentioned above, the appellees requested to have or make an unattended visit on the occasions of the Visits in order to have discussions regarding the filing of a request for a retrial of Appellee X1. Prior to the Visits, Appellee X1 had stated, in an interview by a staff member of the Hiroshima Detention House, that he/she had been told by Appellee X3 that Appellees X2 and X3 would make preparation for filing a request for a retrial but he/she had nothing to worry about in terms of his/her mental or physical condition. Even taking into account all of the other circumstances that existed in this case, we cannot find any special circumstances mentioned above.
Consequently, we should say that the Warden of the Hiroshima Detention House made the Decisions while going beyond the bounds of the discretion vested in him/her or abusing such discretion and thereby harmed the abovementioned interests of the appellees and thus the Decisions are unlawful in the context of application of Article 1, paragraph (1) of the State Redress Act. The holdings of the court of prior instance on the points argued by the agents appointed for final appeal can be affirmed as meaning the same effect as above. The arguments of the agents appointed for final appeal cannot be accepted.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.
Justice OTANI Takehiko
Justice OKABE Kiyoko
Justice TERADA Itsuro
Justice OHASHI Masaharu
Justice KIUCHI Michiyoshi
(This translation is provisional and subject to revision.)