2019.08.09

2018 (Gyo-Hi) 299

Minshu Vol. 73, No. 3

Judgment concerning the case where a letter that an inmate sentenced to death sends to or receives from a person other than his/her relatives contains a description which is not considered necessary for carrying out business as prescribed in Article 139 paragraph (1), item (ii) of the Act on Penal Detention Facilities and the Treatment of Inmates and Detainees, regarding the propriety of determining that the inmate is not permitted to send or receive the description and deleting or erasing it

Case seeking revocation of a measure, etc.

Judgment of the Second Petty Bench, quashed and decided by the Supreme Court

Osaka High Court, Judgment of April 26, 2018

Where a letter which an inmate sentenced to death sends to or receives from a person other than his/her relatives contains a description which is not considered necessary for carrying out business as prescribed in Article 139, paragraph (1), item (ii) of the Act on Penal Detention Facilities and the Treatment of Inmates and Detainees, in addition to descriptions necessary therefor, the warden of a penal institution may determine that the inmate is not permitted to send or receive the description under paragraph (1) of the same Article and delete or erase the description, except for the cases where the inmate should be permitted to send or receive the description pursuant to item (iii) of the same paragraph or paragraph (2) of the same Article.

Article 139 of the Act on Penal Detention Facilities and the Treatment of Inmates and Detainees

Act on Penal Detention Facilities and the Treatment of Inmates and Detainees
(Letters Permitted to Send or Receive)
Article 139 (1) The warden of the penal institution is to permit an inmate sentenced to death (except those having the status as an unsentenced person; hereinafter the same applies in this Division) to send or receive the letters under the following items except where it is prohibited by the provisions of this Division, paragraph (3) of Article 148, and the next Section.
(i) Letters the inmate sentenced to death sends to or receives from his/her relative;
(ii) Letters which the inmate sentenced to death sends and receives in order to carry out a business pertaining to personally, legally, or occupationally important concern of the inmate sentenced to death, such as reconciliation of marital relations, pursuance of a lawsuit, or maintenance of a business;
(iii) Letters deemed to be instrumental to help the inmate sentenced to death maintain peace of mind.
(2) The warden of the penal institution may permit an inmate sentenced to death to send or receive letters other than those set forth in the preceding paragraph in cases where it is deemed that there is a circumstance where the sending or receiving is necessary for the maintenance of good relationship with the addressee, or for any other reasons, and if it is deemed that there is no risk of causing disruption of discipline and order in the penal institution.

Of the judgment in prior instance, the part against the appellant of final appeal is quashed.
Regarding the part mentioned in the preceding paragraph, the appeal to the court of second instance filed by the appellee of final appeal is dismissed.
The costs of the appeal to the court of second instance and the final appeal shall be borne by the appellee.

Concerning the reasons for a petition for acceptance of final appeal stated by the counsels for final appeal, TATEUCHI Hisashi, et al. (except for those excluded)

1. In this case, the appellee, who is an inmate sentenced to death, argues that the measure taken by the warden of a detention house of determining that the appellee is not permitted to receive part of a letter addressed to the appellee and deleting the part is illegal, and demands that the appellant revoke the same measure and compensate damages under Article 1, paragraph (1) of the State Redress Act.

2. The outline of facts lawfully determined by the court of prior instance is as follows.

(1) The appellee is an inmate sentenced to death and has been committed to the Osaka Detention House since June 3, 2009.

(2) A letter addressed to the appellee which was prepared by A (hereinafter referred to as the "Letter") arrived at the Osaka Detention House on August 10, 2015. The Letter contained a description of compliments of the season on the first line and descriptions of acknowledgment and encouragement to the appellee on the fourth to ninth lines (hereinafter, parts in which the aforementioned descriptions of compliments of the season, acknowledgement, and encouragement are stated in the Letter are referred to as the "Descriptions"), in addition to a description to the effect that the originals and copies of litigation documents, for which the appellee requested copying, are included.

(3) The warden of the Osaka Detention House (hereinafter referred to as the "Warden") released Notice No. 16 dated March 12, 2015, titled "Regarding Enactment of the Rules on the Treatment of Inmates Sentenced to Death." Article 16 of the "Rules on the Treatment of Inmates Sentenced to Death" attached to the notice provides that an inmate sentenced to death should be requested to report persons who are expected to visit, or send a letter to or receive a letter from the inmate and that the competent overall correctional treatment officer should receive approval from the Warden with regard to the policy concerning whether to permit contact with the outside world between the inmate sentenced to death and the aforementioned reported persons. Under the same Article, the Warden adopted the policy of permitting contact with the outside world between the appellee and 38 relatives, 14 attorneys at law, and one friend of the appellee as of July 31, 2015. However, A is neither the appellee's relative nor was included in other persons with whom the Warden adopted the policy of permitting the appellee's contact with the outside world.

(4) On August 11, 2015, the Warden determined as follows: The Descriptions do not fall under the items of Article 139, paragraph (1) of the Act on Penal Detention Facilities and the Treatment of Inmates and Detainees (hereinafter referred to as the "Penal Detention Facility Act") that provides for letters which inmates sentenced to death are permitted to send or receive, and there are also no circumstances where the inmate sentenced to death should be permitted to receive the Descriptions pursuant to paragraph (2) of the same Article; however, other parts in the Letter fall under paragraph (1), item (ii) of the same Article. Therefore, on August 11, 2015, the Warden determined that the inmate sentenced to death is not permitted to receive the Descriptions and took a measure of deleting them (hereinafter referred to as the "Disposition"), and then delivered to the appellee the Letter after the deletion. Incidentally, deletion means physically cutting off part of a letter.

(5) At the Osaka Detention House, many letters are sent and received between inmates and outside parties on a daily basis, and the number of letters received per day for the period from August 3 to 14, 2015, was 249 to 548 while the number of letters sent per day for the same period was 350 to 505.

(6) Unlike letters sent by inmates, letters which inmates receive from outside parties are not limited in terms of usable writing utensils and paper. Therefore, in the case of determining part of a letter as not being permitted to be received and erasing it, in order to make the part completely illegible, it is not sufficient to fill in the part to be erased by using a writing utensil of the same color as the text of the part, and it is necessary to fill in the part by using several different types of writing utensils.

3. The court of prior instance determined as summarized below based on the aforementioned facts, and thus upheld the appellee's claim for revocation of the Disposition and partially upheld the appellee's claim for compensation for damages.

Article 139, paragraph (1), item (ii) of the Penal Detention Facility Act provides the following as the requirement for permission for sending or receiving a letter: The purpose of sending or receiving a letter is to carry out business of personal, legal, or occupationally-important concern, such as reconciliation of marital relations, pursuance of a lawsuit, or maintaining a business (hereinafter these are referred to as "carrying out important business"). The aforementioned purpose should be determined in light of the entire content of the letter and the other party to the sending or receiving of the letter. Regarding a letter whose purpose is recognized as carrying out important business, the entire letter should be permitted to be sent or received, and it is reasonable to consider that even if the letter includes a description that cannot be considered necessary for carrying out important business, the description can be neither deleted nor erased unless it falls under any of the items of Article 129, paragraph (1) of the same Act.

The Letter states that the originals and copies of litigation documents, for which the appellee requested copying are included, and it is recognized as being sent or received for carrying out important business. The Descriptions contain compliments of the season as well as acknowledgment and encouragement to the appellee, and thus cannot be considered necessary for carrying out important business. However, the Descriptions do not fall under any of the items of Article 129, paragraph (1) of the Penal Detention Facility Act. Therefore, the Warden is not permitted to delete or erase the Descriptions.

4. However, the aforementioned determination of the court of prior instance cannot be upheld for the following reasons.

(1) The Penal Detention Facility Act provides as follows: An inmate sentenced to death should be permitted to send a letter to or receive a letter from his/her relative (Article 139, paragraph (1), item (i)) but provides that an inmate sentenced to death should be permitted to send a letter to or receive a letter from a person other than his/her relatives only where the letter is sent or received for carrying out important business (item (ii) of the same paragraph) or where sending or receiving the letter is deemed to be instrumental in helping the inmate sentenced to death maintain peace of mind (item (iii) of the same paragraph); In cases other than these, an inmate sentenced to death may be permitted to send or receive a letter when it is deemed that there are circumstances where the sending or receiving is necessary for maintaining a good relationship with the other party to the sending or receiving, or for other reasons, and if it is deemed that there is no risk of disrupting discipline and order in the penal institution (paragraph (2) of the same Article). These provisions are considered to stipulate that an inmate sentenced to death should be permitted to send a letter to or receive a letter from a person other than his/her relatives only in the cases that fall under paragraph (1) item (ii) or (iii) or paragraph (2) of the same Article, taking into account that the object and purpose of detention of an inmate sentenced to death are to bring him/her into custody by isolating him/her from society, including blocking of contact with the outside world, until his/her death penalty is conducted in consideration of the maintenance of his/her peace of mind.

Then, it should be said that there is no reason for permitting an inmate sentenced to death to send or receive even a description which is not considered necessary for carrying out important business pursuant to Article 139, paragraph (1), item (ii) of the Penal Detention Facility Act in light of the fact that the same item is considered to be based on the idea that even an inmate sentenced to death should not be precluded from carrying out important business.

For the reasons described above, it is reasonable to consider that where a letter which an inmate sentenced to death sends to or receives from a person other than his/her relatives contains a description which is not considered necessary for carrying out important business, in addition to descriptions necessary therefor, the warden of a penal institution may determine that the inmate is not permitted to send or receive the description under Article 139, paragraph (1) of the Petal Detention Facility Act and delete or erase the description, except for the cases where the inmate should be permitted to send or receive the description pursuant to paragraph (1), item (iii) or paragraph (2) of the same Article.

(2) When this determination is applied to this case, the Letter is one which a person other than the appellee's relatives addressed to the appellee, and the Descriptions contain compliments of the season as well as acknowledgment and encouragement to the appellee, and cannot be considered necessary for carrying out important business. There are also no circumstances where sending or receiving of the Descriptions should be permitted under Article 139, paragraph (1), item (iii) or paragraph (2) of the Penal Detention Facility Act.

As shown in the aforementioned facts, many letters are sent and received between inmates and outside parties on a daily basis at the Osaka Detention House, and the work of partially erasing letters which inmates receive from outside parties involves considerable burden. In light of the above, the Warden's act of deleting the Descriptions after determining that the Descriptions are not permitted to be sent or received cannot be considered to contain illegality of either deviating from the scope of discretion or abusing discretion vested in him/her.

For the reasons described above, the Disposition is legitimate, and the Warden's act of executing the Disposition is not evaluated as illegal in terms of application of Article 1, paragraph (1) of the State Redress Act.

5. The determination of the court of prior instance that is different from the above contains violation of laws and regulations that obviously affects the judgment. The counsels' arguments are to the same effect and are well-grounded, and the part against the appellant in the judgment in prior instance should inevitably be quashed. According to the explanations made above, all the appellee's claims are groundless, and the judgment in first instance that dismissed these claims is legitimate. Therefore, the second instance filed by the appellee shall be dismissed with regard to the aforementioned part.

Accordingly, the Court unanimously decides as set forth in the main text.

Justice MIURA Mamoru

Justice YAMAMOTO Tsuneyuki

Justice KANNO Hiroyuki

Justice KUSANO Koichi