Japan’s legal obligations on the use of the death penalty
Moreover, communications between a detainee and his lawyer must be confidential. In S v. Switzerland, the ECtHR noted that:
“…an accused’s right to communication with his advocate out of the hearing of a third person is one of the basic requirements of a fair trial in a democratic society … If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness…”.37
Te ECtHR accepted that confidentiality could be restricted if, for example, there was a risk of collusion between a client and his lawyer. However, the mere risk of collaboration between defence counsel is not enough.
Japanese law and practice
1. Article 203(1) of the Code of Criminal Procedure states: “When a judicial police officer has arrested a suspect upon an arrest warrant or has received a suspect who was arrested upon an arrest warrant, he/she shall immediately inform the suspect of the essential facts of the suspected crime and the fact that the suspect may appoint defense counsel and then, giving the suspect an opportunity for explanation, he/she shall immediately release the suspect when he/she believes that it is not necessary to detain the suspect, or shall carry out the procedure of referring the suspect together with the documents and articles of evidence to a public prosecutor within 48 hours of the suspect being placed under physical restraint when he/she believes that it is necessary to detain the suspect”.
Regarding the word “immediately” in Article 203(1), court standards in Japan are unclear because there are almost no decisions clarifying what time period this word implies and because one cannot find cases in which delay in informing the suspect of the essential facts of the crime has been adjudicated. In these senses, Japanese courts have done little to define what this important time-oriented provision requires.
At the same time, there is a court decision about delay in the notification of the suspect’s right to a defence lawyer and about the suspect’s right to provide an explanation to the persons conducting the investigation – a decision of the Morioka District Court on 5 January 1988. In this case, the police informed the suspect of his rights to appoint defence counsel and to provide an explanation to the police, but they did so 23 hours and 50 minutes after he was arrested. In an appeal against an earlier judicial decision to reject the request for detention of this suspect because of the long delay, the Morioka District Court overturned the original decision and held that there were no illegalities in the police’s arrest procedures. Tus, on the rare occasions when Japanese courts have considered Article 203(1), they have tended to interpret “immediately” in ways that benefit law enforcement.
2.Te right of defence counsel to attend criminal interrogations is not clearly provided for in Japan’s Code of Criminal Procedure, and Japan has received repeated recommendations from the United Nations Human Rights Committee about this point. Here is what Japan’s
37 (1992) 14 EHRR 670 at [48] 15
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