The Death Penalty in Japan
government says to deny a defence lawyer’s right to attend the criminal interrogations of his or her client:
“Because of the limited means to obtain evidence, interrogation of suspects is the most important investigation method to bring out the truth. Terefore, Japan noted that the issue of the presence of Defense Counsel requires a cautious consideration. Japan also noted there are currently no limitations for detainees to access Defense Counsel in police detention facilities.”38
Tis reply clearly reflects the government’s position that confessions obtained from criminal suspects are the most important kind of evidence. Tis over-reliance on confessions is the central cause of many of the most troubling wrongful convictions in Japanese criminal justice.39
3. Japan’s government also claims that there are no limitations on meetings between suspects who have been detained and their defence lawyers. However, in reality, and regardless of whether the place of detention is a police facility or not, Article 39(3) of Japan’s Code of Criminal Procedure permits meetings between suspects and their defence counsel to be restricted as follows:
“A public prosecutor, public prosecutor’s assistant officer or judicial police official (‘judicial police official’ means both a judicial police officer and a judicial constable; the same shall apply hereinafter) may, when it is necessary for investigation, designate the date, place and time of the interview or sending or receiving of documents or articles prescribed in paragraph (1) only prior to the institution of prosecution; provided, however, that such designation shall not unduly restrict the rights of the suspect to prepare for defence.”
Moreover, the following two Supreme Court decisions apply to efforts to restrict meetings between defence lawyers and their clients:
“In principle, investigative institutions must always give a defense lawyer the opportunity to meet with his or her client when the defense lawyer makes application for such a meeting. In cases where the suspect is in the middle of an interrogation or the suspect’s presence at a crime-scene search or inspection is needed and therefore interruption of the investigation would cause a conspicuous obstacle, the investigative institutions must take measures to allow the suspect to consult a defense lawyer by designating the earliest possible date and time for the interview.” (First Petit Bench of the Supreme Court, 10 July 1978)
“Cases where there is a conspicuous obstacle due to the interruption of the investigation include instances not only where a suspect is in the middle of interrogation or he or she is attending the inspection of a crime scene, but also instances where interrogation of a suspect or a suspect’s attendance at the inspection etc. is firmly scheduled very close at
See, for example, David T. Johnson, Te Japanese Way of Justice: Prosecuting Crime in Japan (Oxford University Press, 2002), ch. 8; and Daniel H. Foote, “Confessions and the Right to Silence in Japan”, Georgia Journal of International and Comparative Law, Vol.21 (2001), pp.415-488
38 39
16 Presentation by the government of Japan at the Working Group on the Universal Periodic Review in October 2012
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