1983.06.22

1977 (O) 927

Minshu Vol. 37, No. 5, at 793

Judgment concerning whether or not the provisions of Article 31(2) of the Prison Law and of Article 86(1) of the Prison Law Enforcement Order are in violation of Article 13 or 19 of the Constitution in cases where pre-judgment detainees' freedom to read newspapers or books is restricted in order to maintain prison discipline and order

Case to seek damages

Judgment of the Grand Bench, dismissed

Tokyo High Court, Judgment of May 30, 1977

1. In cases where pre-judgment detainees' freedom to read newspapers or books is restricted for the purpose of maintaining prison discipline and order, Article 3(2) of the Prison Law and Article 86(1) of the Prison Law Enforcement Order are not in violation of Articles 13, 19 or 21 of the Constitution because these provisions should be construed that they are intended to permit restriction on freedom of reading only when there is a high likelihood that problems would occur to the extent that should not be left unsolved for the purpose of maintaining prison discipline and order if reading were permitted under specific circumstances, and only within the limit that is necessary and reasonable to prevent the occurrence of such problems.

2. Under the circumstances in which the detainees involved in public safety cases very frequently committed violent actions against the discipline and order in the detention house as the judgment of the second instance held, the decision made by the head of the detention house to delete all articles in the newspaper available in the detention house that addressed the hijack case, which was committed by the students belonging to the Red Army, cannot be deemed to be illegal.

(Concerning 1) Article 31(2) of the Prison Law, Article 86(1) of the Prison Law Enforcement Order, Articles 13, 19, and 21 of the Constitution; (Concerning 2) Article 1(1) of the Law Concerning State Liability for Compensation

Article 31(2) of the Prison Law
The restriction on reading books or seeing pictures shall be provided by order.

Article 86(1) of the Prison Law Enforcement Order
Reading books or seeing pictures shall be permissible if it is not against the purpose of detention or detrimental to prison discipline.

Article 13 of the Constitution
All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.

Article 19 of the Constitution
Freedom of thought and conscience shall not be violated.

Article 21 of the Constitution
1. Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.
2. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.

Article 1(1) of the Law Concerning State Liability for Compensation
When a governmental official who is in a position to exercise the public authority of the State or of a public body has, in the course of performing his duties, illegally caused damage to another person either intentionally or negligently, the State or the public body concerned shall be liable to compensate such damage.

The jokoku appeal shall be dismissed.
The jokoku appellants shall bear the cost of the jokoku appeal.

Concerning Ground 1 for the jokoku appeal argued by the attorneys for jokoku appeal KONDO Masaru, KOIZUMI Seiichiro, FURUSE Shunsuke, and KAWABATA Yoshiharu
The jokoku appellants argue that Article 31(2) of the Prison Law and Article 86(1) of the Prison Law Enforcement Order providing that pre-judgment detainees' freedom to read newspapers may be restricted, and the Ministry of Justice Decree dated December 13, 1966, and the Ministry of Justice Correction Bureau Notification by Order dated December 20, 1966, are all in violation of Article 19 of the Constitution providing for freedom of thought and conscience and Article 21 of the Constitution providing for freedom of expression and therefore are null and void.
Pre-judgment detention is to limit, under the Code of Criminal Procedure, the residence of the suspect or the accused to a prison for the purpose of preventing them from escaping or destroying evidence. Persons under pre-judgment detention shall not only be subject to the restriction on freedom of physical movement to that extent but also inevitably be subject to the restriction on freedom in other activities to the limit that is necessary and reasonable to prevent escape or destruction of evidence, and it should be considered that such restrictions form a part of pre-judgment detention. A prison is a facility to accommodate a number of detainees in isolation from the outside world, and in order to control a group of such people in this facility, it is necessary to maintain discipline and order and keep the inner conditions normal. Therefore, if necessary to achieve this goal, it is inevitable that pre-judgment detainees are also subject to the restriction on freedom of physical movement and freedom of other activities to a certain limit (it is basically a different argument that such restriction may be restrained by reason of the right of defense). In this case, whether or not such restriction on freedom can be accepted as necessary and reasonable should be determined by taking into consideration the degree to which the restriction is required in order to achieve the goal as well as the contents and nature of the freedom to be restricted and the manner and the degree to which the restriction is specifically imposed (1965 (O) No. 1425, judgment of the Grand Bench of the Supreme Court of September 16, 1970, Minshu Vol. 24, No. 10, 1410).
The point of issue in this case is whether or not the restriction on the jokoku appellants' freedom to read newspapers, which was imposed under the disposition given by the Head of the Tokyo Detention House to delete the newspaper articles, is in violation of the Constitution. Having opportunities to freely access and absorb various opinions, knowledge, and information is indispensable for any person to form and develop his/her own thought and personality and to reflect them in social life, and it is also necessary in order to truly realize the basic principles of democratic society--to secure free communication and exchange of thought and information. Therefore, it is naturally derived from the purport and purpose of Article 19 of the Constitution providing for inviolability of freedom of thought and conscience and of Article 21 of the Constitution guaranteeing freedom of expression, that the Constitution guarantees the freedom to read newspapers or books as media by which people can obtain opinions, knowledge, and information, and this is in conformity with the purport of Article 13 of the Constitution providing for personal dignity of all people. However, as freedom of reading relates to various aspects of life and extends to an extremely wide range, it cannot be said, as alleged by the jokoku appellants, that restricting freedom of reading is absolutely impermissible, and therefore it may inevitably be subject to a reasonable restriction in individual aspects of life out of the necessity to promote paramount public interest. This also applies when what is read is a newspaper. From this viewpoint, restriction on pre-judgment detainees' freedom to read newspapers or books to a certain limit must be permitted when it is necessary not only for the purpose of achieving the goal of detention--preventing escape and destruction of evidence--but also for the purpose of maintaining prison discipline and order. However, while pre-judgment detention is a measure to restrict individuals' freedom to a certain limit out of necessity to achieve the goal of criminal justice, whereas persons under pre-judgment detention should be, in principle, allowed to enjoy freedom as ordinary citizens outside the scope of restriction needed for such purposes of detention. Therefore, when pre-judgment detainees' freedom to read newspapers or books is restricted for the purpose of maintaining prison discipline and order, such restriction must be limited to the extent that is truly necessary to achieve it. Consequently, in order to permit restriction on freedom to read newspapers or books, it is not sufficient to establish that there is a general or abstract fear that prison discipline and order would be impaired if reading were permitted, but it must be recognized, in light of the predisposition and behavior of the detainees, the conditions of prison management and security, the contents of the newspapers or books concerned, and other specific circumstances, that there is a high likelihood that problems would occur to the extent that should not be left unsolved for the purpose of maintaining prison discipline and order if reading were permitted, and in this case, the restriction should be within the limit that is necessary and reasonable to prevent the occurrence of such troubles.
Article 31(2) of the Prison Law provides that prisoners' freedom to read books and see pictures may be restricted, while leaving specific contents of restriction to be decided by order. According to this provision, Article 86(1) of the Prison Law Enforcement Order provides for the requirements for restriction, and the Minister of Justice Decree and the Ministry of Justice Correction Bureau Notification by Order specify the limit and method of restriction. The language of these provisions seems to permit restriction under relatively lenient requirements, but it is reasonable and possible to construe that these provisions are intended to permit restriction on reading only under the requirements and within the limit mentioned above. For this reason, these provisions can be recognized as being not in violation of the Constitution and therefore effective.
The jokoku appellants' argument cannot be accepted.

Concerning Ground 2
The facts determined by the court of the second instance challenged by the jokoku appellants can be accepted in light of the evidential materials listed in the judgment of the second instance, and therefore the process of fact-finding does not contain such illegality as argued by the jokoku appellants. The issues that would arise when applying the legal provisions mentioned above in specific cases, i.e. whether or not there is a high likelihood that troubles would occur to the extent that should not be left unsolved for the purpose of maintaining prison discipline and order if reading of newspapers or books were permitted, and the contents and degree of the restriction measure to prevent such troubles, should largely depend on a discretionary decision made on a case-by-case basis by the head of the prison who is well versed in the actual conditions within the prison and directly in charge of prison management. Therefore, if a reasonable ground can be found for the prison head's determination that there is a high likelihood of the occurrence of troubles, and the head's decision that the restriction measure is necessary to prevent the occurrence of troubles is reasonable, it is appropriate to construe that the measure taken by the head can be accepted as legal. According to the facts of this case, the detainees involved in public safety cases had very frequently committed actions disturbing the discipline and order in the Tokyo Detention House especially before the disposition to delete the newspaper articles was made, and the newspaper articles deleted by disposition related to the hijack case committed by the students belonging to the Red Army. Considering these circumstances, reasonable grounds can be found for the determination made by the head of the Tokyo Detention House that there was a high likelihood that if the jokoku appellants detained as the accused in the public safety cases were permitted to read the newspaper articles, peace in the detention house would be disturbed and troubles would occur to an extent that should not be left unsolved for the purpose of maintaining discipline and order in the detention house. Furthermore, in light of the circumstances at that time, the head's decision to delete all the newspaper articles concerning the hijack case out of necessity to prevent the occurrence of troubles cannot be deemed to go beyond the bounds of the discretion allowed to the head in deciding the contents and degree of necessary restriction or constitute an abuse of such discretion. The judgment of the second instance that goes along with this reasoning can be accepted as justifiable. The judgment of the second instance does not contain such illegality as alleged by the jokoku appellants, and therefore the jokoku appellants' argument cannot be accepted.
Therefore, according to Articles 396, 384, 95, 89, and 93 of the Code of Civil Procedure, the judgment was rendered in the form of the main text by the unanimous consent of the Justices.

Justice TERADA Jiro
Justice DANDO Shigemitsu
Justice FUJISAKI Masato
Justice NAKAMURA Jiro
Justice YOKOI Daizo
Justice KINOSHITA Tadayoshi
Justice SHIONO Nobuyoshi
Justice ITO Masami
Justice MIYAZAKI Goichi
Justice TANIGUCHI Masataka
Justice OHASHI Susumu
Justice KIDOGUCHI Hisaharu
Justice MAKI Keiji
Justice WADA Seiichi
Justice YASUOKA Mitsuhiko