Japan’s legal obligations on the use of the death penalty
hand and therefore allowing a defense lawyer to have an interview with his or her client would probably hinder the commencement of such interrogation or inspection.” (Tird Petit Bench of the Supreme Court, 10 May 1991)
In these ways, restrictions on meetings between defence counsel and their clients have expanded in Japan, both as a matter of law and as a matter of judicial opinion. As a matter of practice, defence counsel in Japan are generally somewhat more able to meet with their clients at present than they were in the past, but in cases deemed critical to investigating authorities – especially cases in which the suspect has not confessed – meetings can still be prohibited, and meetings are often prohibited or abbreviated as a matter of fact.
4. Moreover, the right to secret communications between defence lawyers and suspects or defendants is guaranteed before a defendant’s sentence has been finalised, but once the sentence becomes finalised the circumstances change. In particular, in the case of inmates with a finalised sentence of death, private meetings with a defence lawyer are usually impossible.
The right to be brought promptly before a court Article 9(3) of the ICCPR states:
Anyone arrested or detained on a criminal charge shall be brought promptly before a judge… and entitled to trial within reasonable time or to release…
Te length of permitted detention in police custody before a first appearance in court has practical implications for the effective enjoyment of other rights of the detainee. All international human rights instruments therefore provide that anyone arrested or detained must be brought promptly before a judge or other officer authorised by law to exercise judicial power. While no time limits are expressly stated within the standards, and they are to be decided on a case by case basis, the HRC has stated that ‘…delays should not exceed a few days’ (UNHRC General Comment 8(2))40
. In a Caribbean
death penalty case, the HRC ruled that a delay of one week from time of arrest before the detainee was brought before a judge was incompatible with Article 9(3) of the ICCPR41 Kennedy v. Te Republic of Trinidad & Tobago42
. Likewise, in Rawle , the HRC considered that a six-day delay in bringing
the applicant before a judge was a violation of Article 9(3). Te HRC held that the word promptly in Article 9(3) should not exceed a few days. Te ECtHR has ruled that detaining a person for four days and six hours before bringing him before a judge was not prompt access (Brogan and others v. UK).43
All states have an obligation to ensure that the judicial control mechanisms articulated in Article 9(3) and 9(4) of the ICCPR are accessible and effective in order that these provisions are operative. Te basic principle in relation to police custody and detention pending trial is that restriction to the right to liberty must be exceptional and the initial judicial control of the lawfulness of the deprivation of
40 41 42 43
CCPR General Comment no.8, Right to liberty and security of persons (art.9), 30/06/82 McLawrence v. Jamaica, CCPR/C/60/D/702/1996, 29 September 1997 CCPR/C/74/D/845/1998, 26 March 2002 [1988] 11 EHRR 117
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