2018.10.25

2017 (Ju) 990

Minshu Vol. 72, No. 5

Judgment on a case where a request to visit a detainee awaiting a judicial decision was received from a person who was or intended to be a defense counsel for the detainee awaiting a judicial decision while he was under confinement in an observation cell on the grounds that he fell under Article 79, paragraph (1), item (ii) of the Act on Penal Detention Facilities and the Treatment of Inmates and Detainees and where the measures taken by the warden of the penal institution which turned down the visit by reason of the confinement of the detainee awaiting a judicial decision in an observation cell, without informing the detainee awaiting a judicial decision of the fact that such request had been received, were illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act

Case seeking state compensation for interference with interviews, etc.

Judgment of the First Petty bench, quashed and remanded

Fukuoka High Court, Judgment of March 7, 2017

In a case where a request to visit a detainee awaiting a judicial decision is received from a person who is or intends to be a defense counsel for the detainee awaiting a judicial decision while he is under confinement in an observation cell on the grounds that he falls under Article 79, paragraph (1), item (ii) of the Act on Penal Detention Facilities and the Treatment of Inmates and Detainees, the measures taken by the warden of the penal institution which turn down the visit by reason of the confinement of the detainee awaiting a judicial decision in an observation cell, without informing the detainee awaiting a judicial decision of the fact that such request has been received, are illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act due to infringement of the detainee’s and the (intended) defense counsel’s right of access to each other, unless there are exceptional circumstances which obviously make the detainee awaiting a judicial decision still fall under the same item after being informed of such fact, such as the detainee’s being in an extremely unstable mental state.

(There is a concurring opinion.)

Paragraph (1), item (ii) and paragraph (4) of Article 79 and Article 115 of the Act on Penal Detention Facilities and the Treatment of Inmates and Detainees; Article 39, paragraph (1) of the Code of Criminal Procedure; and Article 1, paragraph (1) of the State Redress Act



Act on Penal Detention Facilities and the Treatment of Inmates and Detainees

(Confinement in Protection Room)

Article 79 (1) In cases where an inmate falls under any of the cases set out under the following items, prison officers may confine him/her in a protection room by order of the warden of the penal institution:

(ii) Cases falling under any of the following subitems (a) to (c) inclusive where such confinement is especially necessary in order to maintain discipline and order in the penal institution:

(a) Cases where the inmate generates a loud voice or noise, against a prison officer's order to cease doing so;

(b) Cases where the inmate is likely to inflict injury on others;

(c) Cases where the inmate is likely to damage or defile facilities, equipment, or any other property of the penal institution.

(4) In cases where the necessity of confinement ceases to exist, the warden of the penal institution must immediately order to suspend it even during the period set forth in the preceding paragraph.

(Visitors)

Article 115 In cases where a person requests to visit an unsentenced person (except those having the status as either a sentenced person or an inmate sentenced to death; hereinafter the same applies in this Division), the warden of the penal institution is to permit the unsentenced person to receive the visit except the cases where it is prohibited pursuant to the provision of paragraph (3) under Article 148 or the provisions of the next Section; provided, however, that the foregoing does not apply where receiving visit is not permitted by the provisions of the Code of Criminal Procedure.

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).

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.

Of the judgment of prior instance, the portion related to the claim for damages on the grounds of infringement of the appellants’ right of access to each other is quashed.

With respect to the portion specified in the preceding paragraph, this case shall be remanded to the Fukuoka High Court.

The third reason for the petition for acceptance of final appeal filed by X2, who is an appellant and a counsel for the appeal, and by the other counsels for the appeal, SAITO Toshiyuki et al.



1. In this case, appellant X1, who was detained as an accused at a detention center, and appellant X2, who was the defense counsel for appellant X1, seek from the appellee payment of a solatium and delay damages under Article 1, paragraph (1) of the State Redress Act, on the grounds that appellant X1’s and appellant X2’s right of access to each other was infringed by the failure of the detention center’s staff to permit appellant X2 to visit appellant X1 by reason of appellant X1’s confinement in an observation cell on the grounds that appellant X1 falls under Article 79, paragraph (1), item (ii)(a) of the Act on Penal Detention Facilities and the Treatment of Inmates and Detainees (hereinafter referred to as the “Act on Penal Detention Facilities”).

2. An outline of the facts related to the case confirmed by the court of prior instance is as described below:

(1) In June 2008, appellant X1 was prosecuted in a case under public prosecution for violation of the Act on Punishment of Organized Crimes and Control of Crime Proceeds and was detained as an accused at the Fukuoka Detention Center.

(2) On July 23, 2009 at the Fukuoka Detention Center, appellant X1 shouted, saying such things as, “Apologize for your violence on inmates.” Appellant X1 was repeatedly ordered by the detention center’s staff to stop shouting, but did not follow their orders and kept shouting by repeating similar statements. For this reason, Appellant X1 was confined in an observation cell on the grounds that he fell under Article 79, paragraph (1), item (ii)(a).

In this regard, appellant X1 had also been confined in an observation cell after loudly chanting such things as “We’re against capital punishment” with other inmates on multiple occasions during the period from his detention at the same detention center to his confinement described in the preceding paragraph.

(3) Appellant X2, who was the defense counsel for appellant X1, visited the Fukuoka Detention Center on July 27, 2009 and made a request to visit appellant X1 (hereinafter referred to as the “Request”). Since July 23, appellant X1 had shouted every day and had continuously been under confinement in an observation cell. On July 27, before and after the Request was made, appellant X1 again shouted, saying such things as, “Apologize for your violence on inmates.” The detention center’s staff did not permit appellant X2 to visit appellant X1, saying to appellant X2 that no visiting was permitted because appellant X1 was under confinement in an observation cell, without informing appellant X1 of the fact that the Request had been received.

3. The court of prior instance ruled as follows on the potential illegality of measures which turn down a visit to an accused by his/her defense counsel by reason of the accused’s confinement in an observation cell, and dismissed the appellants’ claim for damages on the grounds of infringement of their right of access to each other.

In cases where a request to visit an accused under confinement in an observation cell is made by the accused’s defense counsel, it is left to the reasonable discretion of the warden of the penal institution whether or not the accused should be informed of the fact that such request has been received, as a precondition for the warden to judge the necessity and appropriateness of continuing the accused’s confinement in an observation cell. Even if measures are taken which turn down the visit by reason of the accused’s confinement in an observation cell, without informing the accused of the aforementioned fact, such measures are not, in principle, illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act, to the extent that there is no abuse of the aforementioned discretion and that there are no errors in the judgment of the aforementioned necessity and appropriateness.

4. However, the court of prior instance’s ruling described above is not acceptable, for the following reasons:

(1) The right of access to a lawyer, which is guaranteed to the accused or suspect under Article 39, paragraph (1) of the Code of Criminal Procedure, is one of the most important fundamental rights in criminal proceedings which provides the accused or suspect under physical restraint with access to assistance from a person who is or intends to be his/her defense counsel (hereinafter referred to as a “Defense Counsel, etc.”). From the viewpoint of the Defense Counsel, etc., the right of access to the accused or suspect is one of the most important rights inherent to the Defense Counsel, etc. (see Supreme Court, 1974 (O) 1088, Judgment of the First Petty bench of July 10, 1978, Minshu Vol. 32, No. 5, p. 820). In addition, Article 31 of the Act on Penal Detention Facilities provides that when treating a detainee awaiting a judicial decision, special attention must be paid to the respect for his/her right of defense, by taking into consideration his/her status as a detainee awaiting a judicial decision. Furthermore, Article 115 of the Act on Penal Detention Facilities provides that when a request to visit a detainee awaiting a judicial decision (except those classified as either a sentenced person or an inmate sentenced to death) is received from another person, including the detainee’s Defense Counsel, etc., the warden of the penal institution shall permit the detainee awaiting a judicial decision to receive the visit. In light of these provisions, one should consider that when a request to visit a detainee awaiting a judicial decision is received from the detainee’s Defense Counsel, etc., the warden of the penal institution should, in principle: (i) immediately inform the detainee awaiting a judicial decision of the fact that such request has been received; and (ii) permit the detainee awaiting a judicial decision to receive the visit if the detainee awaiting a judicial decision expresses his/her intention to receive the visit.

(2) Nonetheless, in a penal institution, discipline and order must be maintained appropriately since it is necessary to secure the custody of inmates, including detainees awaiting a judicial decision, and to maintain both adequate conditions for the treatment of inmates and a safe and peaceful community life thereof, according to the purpose and nature of the penal institution (see Articles 1 and 73 of the Act on Penal Detention Facilities). Article 79, paragraph 1, item (ii) of the Act on Penal Detention Facilities provides that an inmate may be confined in an observation cell in cases where the inmate falls under any of sub-items (a) through (c) of the same item and where such confinement is especially necessary in order to maintain discipline and order in the penal institution. Paragraph (3) of the same article limits the time of such confinement, while paragraph (4) of the same article provides that when such confinement is no longer necessary, it must be suspended immediately. On the other hand, the Act on Penal Detention Facilities contains no specific provisions on visits to a detainee awaiting a judicial decision under confinement in an observation cell by his/her Defense Counsel, etc. The Court considers that this is based on the idea that even if a request to visit a detainee awaiting a judicial decision under confinement in an observation cell is received from the detainee’s Defense Counsel, etc., the warden of the penal institution may take measures which turn down the visit in order to maintain discipline and order in the penal institution, if the detainee awaiting a judicial decision falls under item (ii) of paragraph (1) of the same article at the time when a decision is made as to whether or not the visit should be permitted. Whether or not the detainee awaiting a judicial decision falls under the said item at the aforementioned time should be determined based on the specific circumstances related to the detainee awaiting a judicial decision. In making such determination, a possibility should be taken into account that, even if the detainee awaiting a judicial decision is under confinement in an observation cell on the grounds that he/she has shouted or been noisy against a prison officer’s order to cease doing so or otherwise falls under the same item, the detainee awaiting a judicial decision may cease to shout or be noisy or to otherwise fall under the said item so that he/she can receive a visit by his/her Defense Counsel, etc. if the detainee awaiting a judicial decision is informed of the fact that a request to visit him/her has been received from his/her Defense Counsel, etc.

(3) In light of the intentions, etc. of the Code of Criminal Procedure and the Act on Penal Detention Facilities described in (1) and (2) above, one should consider that when a request to visit a detainee awaiting a judicial decision is received from his/her Defense Counsel, etc. while the detainee awaiting a judicial decision is under confinement in an observation cell on the grounds that he/she falls under Article 79, paragraph (1), item (ii) of the Act on Penal Detention Facilities, the warden of the penal institution must: (a) immediately inform the detainee awaiting a judicial decision of the fact that such request has been received, unless it is obvious that the detainee awaiting a judicial decision will still fall under the same item after being informed of such fact, due to such reasons as the detainee’s being in an extremely unstable mental state, such as when he/she is in a state of confusion due to extreme excitement; (b) check the reaction of the detainee awaiting a judicial decision to such information and determine whether or not the detainee awaiting a judicial decision still falls under the same item; and (c) if the detainee awaiting a judicial decision no longer falls under the said item, immediately order the suspension of his/her confinement in an observation cell in accordance with paragraph (4) of the same article and permit the Defense Counsel, etc. to visit the detainee awaiting a judicial decision in accordance with, among others, Article 115 of the Act on Penal Detention Facilities.

Thus, it is reasonable to consider that, in a case where a request to visit a detainee awaiting a judicial decision is received from a person who is or intends to be a defense counsel for the detainee awaiting a judicial decision while he is under confinement in an observation cell on the grounds that he falls under Article 79, paragraph (1), item (ii) of the Act on Penal Detention Facilities, the measures taken by the warden of the penal institution which turn down the visit by reason of the confinement of the detainee awaiting a judicial decision in an observation cell, without informing the detainee awaiting a judicial decision of the fact that such request has been received, are illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act due to infringement of the detainee’s and the (intended) defense counsel’s right of access to each other, unless there are exceptional circumstances which obviously make the detainee awaiting a judicial decision still fall under the same item after being informed of such fact, such as the detainee’s being in an extremely unstable mental state.

(4) Let us apply the above discussion to this case. According to the facts related to this case described above, when the Request to visit appellant X1, who was an accused under confinement in an observation cell at the Fukuoka Detention Center on the grounds that he fell under Article 79, paragraph (1), item (ii) (a) of the Act on Penal Detention Facilities, was made by appellant X2 who was appellant X1’s defense counsel, the detention center’s staff turned down the visit by reason of appellant X1’s confinement in an observation cell, without informing appellant X1 of the fact that the Request had been received. Although appellant X1 was shouting in an observation cell before and after the Request was made, it is unknown to what degree he was mentally unstable at that time, which leaves room to consider that he was intentionally shouting as a means of protest. Thus, we cannot immediately exclude the possibility that appellant X1 might have ceased to shout in order to receive appellant X2’s visit, if appellant X1 had been informed of the fact that the Request had been received. We cannot consider that there were exceptional circumstances mentioned above based solely on the circumstances related to appellant X1’s behavior described in section 2, (2) and (3) above.

5. Based on the above, the court of prior instance’s ruling contains violations of law that obviously affect its judgment. The appellants’ arguments are well-grounded in that it is consistent with the above arguments. Therefore, of the judgment of prior instance, the portion related to the claim for damages on the grounds of infringement of the appellants’ right of access to each other should inevitably quashed. The Court remands the aforementioned portion of this case to the court of prior instance to have it further and fully hear the case as to, among others, whether or not exceptional circumstances mentioned above existed.

Accordingly, the Court unanimously decides as set forth in the main text. However, there is a concurring opinion of one of the justices, IKEGAMI Masayuki.

The concurring opinion of the justice, IKEGAMI Masayuki, is as follows:

I would like to express my opinion to supplement the Court’s opinion, as follows:

1. I consider that Article 73, paragraph (2) of the Act on Penal Detention Facilities provides for a principle of proportionality that measures taken to achieve the purpose of maintaining discipline and order in a penal institution must not exceed required limits. I also think that, similarly, other provisions of the Act on Penal Detention Facilities concerning measures for maintaining discipline and order in a penal institution were established based on the idea that measures exceeding required limits are not permitted.

Confinement in an observation cell (Article 79 of the Act on Penal Detention Facilities) is one of these measures. Item (ii) of paragraph (1) of the same article provides that an inmate may be confined in an observation cell in cases where the inmate falls under any of sub-items (a) through (c) of the same item and where such confinement is especially necessary in order to maintain discipline and order in the penal institution. I consider that this requirement that confinement in an observation cell must be “especially necessary” is imposed in order to limit such confinement to cases where there is a high necessity for it that is proportionate to its risk, since it is a special form of confinement and may have a serious physical and mental impact on the inmate. In light of the literal context, intention, etc. of the said item described above, it is appropriate to consider that cases where such confinement is “especially necessary” are not limited to cases where the inmate is in an extremely unstable mental state, and that, even in cases where the inmate intentionally does such things as shouting as a means of protest and is able to control his/her own behavior according to the situation, measures to confine the inmate in an observation cell may be taken if the inmate actually falls under any of sub-items (a) through (c) of the same item and if there is a high necessity as described above in order to maintain discipline and order in the penal institution.

2. On the other hand, in cases where a request to visit a detainee awaiting a judicial decision is made by his/her Defense Counsel, etc. while the detainee awaiting a judicial decision is under confinement in an observation cell on the grounds that he/she falls under Article 79, paragraph (1), item (ii) of the Act on Penal Detention Facilities, the warden of the penal institution must decide whether or not to permit the visit by taking also into account that detainees awaiting a judicial decision under confinement in an observation cell include persons who are able to control their own behavior, such as shouting, in order to receive a visit by their Defense Counsel, etc. as described in section 1 above. For this reason, I consider that the warden of the penal institution must immediately inform the detainee awaiting a judicial decision of the fact that the aforementioned request has been received, unless there are exceptional circumstances which obviously make the detainee awaiting a judicial decision still fall under the same item after being informed of the fact that such request has been received (let me add that I consider that these “exceptional circumstances” are not limited to those arising from the mental state of the detainee awaiting a judicial decision but refer to cases where informing the detainee awaiting a judicial decision of the fact that the such request has been received is substantially meaningless, because, even if he/she is informed of such fact, it is extremely difficult for him/her to understand the content of, or to appropriately respond to, such information, just like “when he/she is in a state of confusion due to extreme excitement” as given as an example in the Court’s opinion. It would then be fair to say that the warden of the penal institution must: (a) immediately after receiving such request, not only check the movement of the detainee awaiting a judicial decision through the indoor security monitor but also go down to the observation cell and directly check his/her condition; (b) unless there are exceptional circumstances mentioned above, first inform the detainee awaiting a judicial decision of the aforementioned fact and check his/her response, etc. thereto; and (c) decide whether or not to permit the visit by judging whether or not the detainee awaiting a judicial decision still falls under the same item at the time, based on the specific circumstances so checked that are related to the detainee awaiting a judicial decision ).

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya