1999.03.24

1993 (O) 1189

Judgment on the right of the suspect in criminal procedure to communicate with the defence counsel

Judgment of the Supreme Court, Grand Bench, March 24, 1999

Sendai High Court (Judgment of April 14, 1993)

The main text of Article 39, paragraph 3 of the Code of Criminal Procedure is not against Article 34, first part, Article 37, paragraph 3, and Article 38, paragraph 1 of the Constitution.

The Constitution, Article 34, first part, Article 37, paragraph 3, Article 38, paragraph 1
Code of Criminal Procedure, Article 39, paragraph 3

The second point of the grounds for the jokoku appeal is unfounded.

Re: the second point of the jokoku appeal

1 The main text of Article 39, paragraph 3 of the Code of Criminal Procedure and the first part of Article 34 of the Constitution
The gist of the appellant's argument is that the main text of Article 39, paragraph 3 of the Code of Criminal Procedure which allows imposition of ex-parte restrictions by the public prosecutor, the clerk of the Public Prosecutors' Office, or a police officer (hereinafter investigating agencies) on the interview between a suspect in custody and the defence counsel, or a person who is to be a defence counsel upon request of a person who is empowered to appoint a counsel for the suspect (hereafter defence counsel), is against the first part of Article 34 of the Constitution.
1) The first part of Article 34 of the Constitution provides that no one shall be detained or confined without immediately being given the reason and immediately given the right to retain a defence counsel. This right to defence is designed to enable a suspect in custody to seek assistance from the defence counsel in order to defend his freedom and rights for purposes such as exonerating him/herself from the charge which serves as a basis of his detention, and to be released. Therefore, this provision does not merely prohibit the obstruction by officials of the appointment of the defence counsel by the suspect, but also in substance, guarantees that the suspect, upon appointment of the defence counsel, is granted opportunities to consult the defence counsel, seek advice from the counsel and thus be assisted by the counsel.
The aim of Article 39, paragraph 1 of the Code of Criminal Procedure, which provides that 'a suspect or defendant in custody is entitled to meet the defence counsel, or a person who is to be a defence counsel upon request of a person who is empowered to appoint a counsel (if this person is not a qualified attorney, this is limited to cases where the permission as provided by Article 31, paragraph 2 has been granted) without the presence of any person, or receive documents and other things' and thus grants the right to have contacts with the defence counsel is, in accordance with the meaning of Article 34 of the Constitution, to ensure that suspects in custody are given opportunities of consulting the defence counsel and to receive advice and thus be assisted by the counsel; in this sense, this provision of the Code of Criminal Procedure emanates from constitutional guarantee(Judgment of the Supreme Court, The First Petit Bench, July 10, 1978; Minshu 32-5-820, The Third Petit Bench, May 10, 1991; Minshu 45-5-919, the Second Petit Bench, May 31, 1991; the defence counsel, or a person who is to be a defence counsel upon request of a person who is empowered to appoint a counsel 163-47).
2) However, since the Constitution presupposes the exercise of the power to penalise people or the enforcement of investigative power for the exercise of such power to be a function of the state as a matter of course, it cannot be concluded from the fact that the right of the suspect to consult and communicate with the defence counsel originates from constitutional guarantee, that this right has by its nature, absolute priority to the right to penalise people and the right to investigation. In order to exercise investigative power, there may be instances where it is necessary to hold the suspect in custody and interrogate the suspect. The Constitution does not deny such interrogations, and therefore, a reasonable balance must be struck between the exercise of the right to consult and communicate with the defence counsel and the exercise of investigative power. It should be acknowledged that Article 34 of the Constitution does not deny the possibility of enacting a provision which strikes such a bala nce by law, provided that the goal of the Constitution to guarantee opportunities for suspects in custody to be assisted by the defence counsel is not harmed in a substantial way.
3) While Article 39, paragraph 1 of the Code of Criminal Procedure provides for the right to consult and communicate with the defence counsel as mentioned above, in the main part of paragraph 3, it provides that 'public prosecutors, clerks of the Public Prosecutors' Office, or police officers (i.e. police officers and sergeants) may, when it is needed for investigation, and provided that it is before indictment, designate the place and time of the consultation and the reception of documents' and acknowledges the possibility of investigation agencies to impose restrictions on the exercise of the right to consult and communicate with the defence counsel. This provision was introduced in order to balance the necessity of investigation such as interrogating the suspect and the exercise of the right to consult and communicate with the defence counsel by taking into consideration that by the Code of Criminal Procedure, it is allowed to interrogate a suspect who is held in custody (Art.198, para.1), and tha t in restricting the right of the suspect in preparing the defence, there is a strict limit on the length of custody, i.e. maximum 23 days (for internal strife, 28 days) (Arts.203-205,208,208-3) Furthermore, the final part of Article 39, paragraph 3 provides that 'however, this designation shall not be of a nature that unreasonably restricts the right of the suspect in preparing the defence,' and makes it clear that the designation of the place and time etc., is a necessary and indispensable, but exceptional measure, and that it is not allowed to restrict the right of the suspect in preparing the defence in an unreasonable way.
In the light of such legislative purpose and the content of Article 39, as a rule, the investigating agency is under obligations to provide opportunities for interviews etc., when so requested by the defence counsel. 'Necessity for investigation,' as provided in the main text of Article 39, paragraph 3 should be limited to instances where, if an interview is allowed, an obvious obstruction to investigation emerges, such as an obstruction by interruption of interrogation. If these conditions are met and the place and time etc. of the interview etc. are to be designated, the investigating agency should designate the time which is as early as possible upon consultation with the defence counsel and take measures to ensure that the suspect is able to prepare the defence with the defence counsel and others. If, at the time of the request by the defence counsel for an interview, the investigation agency is actually interrogating the suspect, the suspect is attending an on site investigation, or where t here is a fixed schedule to interrogate the suspect shortly and if an interview is allowed in accordance with the request of the defence counsel, the scheduled interrogation would not be able to start as planned, as a rule, these should be understood as instances as cited above, where, 'if an interview is allowed, an obvious obstruction emerges, such as obstruction by interruption of interrogation' (supra, Judgment of the Supreme Court, The First Petit Bench, July 10, 1978, The Third Petit Bench, May 10, 1991, The Second Petit Bench, May 31, 1991).
The appellant argues that since Article 38, paragraph 1 of the Constitution provides for the right against self-incrimination, suspects who are arrested or detained are under no obligation to endure interrogation, and therefore, the qualifying proviso of Article 198, paragraph 1 of the Code of Criminal Procedure is unconstitutional, if it provides for the duty of the suspect to endure interrogation; if the suspect chooses to do so, the interrogation has to be suspended any time, and therefore, interrogation of the suspect cannot serve as a ground for restricting the right to consult and communicate with the defence counsel. However, the interpretation that the suspect in custody has a duty to be present for interrogation and to stay for interrogation does not necessarily mean that the suspect is deprived of the right against self-incrimination. This is obvious, and thus, the appellant's argument in this respect is without premise and cannot be accepted.
4) As mentioned above, the Code of Criminal Procedure allows the interrogation of suspects who are held in custody, but sets the limit of the time in custody to a maximum of 23 days (or 28 days). It is necessary to balance the need for the investigation such as interrogation, and the exercise of the right to consult and communicate with the defence counsel. The following points should be taken into consideration; (1) restrictions on the interview etc. as provided by the main text of Article 39, paragraph 3 of the Code of Criminal Procedure do not allow the total rejection of the request of the defence counsel for an interview etc., but only allow the designation of a time which is different from the time proposed by the defence counsel, or shortening the interview, and therefore, the level of restriction should be regarded to be low. Also, as mentioned above, (2) designation by the investigating agency is possible only when, by allowing an interview, there would be an obvious obstruction to the inve stigation, such as in cases where, at the time an interview was requested by the defence counsel, the investigation agency was actually interrogating the suspect. Furthermore, (3) if these conditions are met and the place and time etc. of the interview etc. are to be designated, the investigating agency should designate the time which is as early as possible upon consultation with the defence counsel and take measures to ensure that the suspect is able to prepare the defence with the defence counsel. In view of these considerations, the main text of Article 39, paragraph 3 of the Code of Criminal Procedure is, in substance, not against the guarantee of the right to defence as provided by the first part of Article 34 of the Constitution.
In addition, the fact that the main text of Article 39, paragraph 3 of the Code of Criminal Procedure grants the power of designation to investigating agencies, which are on the opposite side to the suspect, is not against the first part of Article 34, since Article 430, paragraphs 1 and 2 of the Code of Criminal Procedure provides that those who do not agree with the designation based upon Article 39, paragraph 3 have recourse to the court in order to have the decision revoked or altered and thus provides a simple and expedient means of judicial review against restrictions imposed on interviews.
5) Based upon the above, the main part of Article 39, paragraph 3 of the Code of Criminal Procedure is not against the first part of Article 34 of the Constitution. The argument of the appellant cannot be accepted.
2 The main part of Article 39, paragraph 3 of the Code of Criminal Procedure and Article 37, paragraph 3 of the Constitution
The appellant argues that Article 37, paragraph 3 of the Constitution covers not only defendants after indictment, but also suspects before indictment, and based upon this understanding, claims that the main part of Article 39, paragraph 3 of the Code of Criminal Procedure is against Article 37, paragraph 3 of the Constitution.
However, considering the fact that Article 37, paragraph 3 uses the term 'criminal defendant,' paragraphs 1 and 2 of the same provision evidently provide for the right of defendants after indictment, and that Article 37 as a whole can be understood to provide for the rights of defendants after indictment, paragraph 3 of the same provision should also be construed to cover defendants after indictment, and there is no room to understand that it is applicable also to suspects before indictment. The appellant's argument claims unconstitutionality based upon a unique view and cannot be accepted.
3. The main part of Article 39, paragraph 3 of the Code of Criminal Procedure and Article 38, paragraph 1 of the Constitution
The appellant argues that Article 38, paragraph 1 of the Constitution also guarantees the right of the suspect held in custody to consult and communicate with the defence counsel in order to ensure the prohibition against forcing a statement of self-incrimination in an effective way, and based on this view, claims that the main part of Article 39, paragraph 3 of the Code of Criminal Procedure is against Article 38, paragraph 1 of the Constitution.
However, by what means the prohibition against forcing a statement of self-incrimination should be effectively guaranteed is basically left to the legislative policy, based upon the actual practice of investigation and other matters. Guarantee of the right of the suspect held in custody to consult and communicate with the defence counsel cannot be automatically derived from the prohibition against forcing a statement of self-incrimination by Article 38, paragraph 1 of the Constitution. The appellant's argument claims unconstitutionality based upon a unique view and cannot be accepted.
Conclusion
As discussed above, the appealed judgment which found that Article 39, paragraph 3 of the Code of Criminal Procedure was not against the first part of Article 34, Article 37, paragraph 3, and Article 38, paragraph 1 of the Constitution is justifiable. The appealed judgment is not against the law as claimed by the appellant, and the arguments in point 2 of the reasons for appeal are all without grounds.
Therefore, the justices unanimously decide as stated in the main text of the judgment.

Justice Shigeru Yamaguchi
Justice Itsuo Sonobe
Justice Motoo Ono
Justice Hideo Chikusa
Justice Yukinobu Ozaki
Justice Shinichi Kawai
Justice Mitsuo Endo
Justice Kazutomo Ijima
Justice Hiroshi Fukuda
Justice Masao Fujii
Justice Toshifumi Motohara
Justice Takao Ode
Justice Toshihiro Kanatani
Justice Hiroharu Kitagawa
Justice Tsugio Kameyama