Comment on the Supreme Court's Decision in the Compensation Suit against the State over Photography at the Interview Room of the Tokyo Detention Center
On June 15, 2016, with regard to the case of Takenouchi vs. Japan in which the plaintiff, Ms. Takenouchi, was seeking compensation from the state, the 2nd Petty Bench of the Supreme Court dismissed the appeal and the petition for acceptance of appeal against the decision of second instance at the Tokyo High Court (handed down on July 9, 2015) which had rejected all the claims overturning the decision of first instance which was partially in favor of the plaintiff.
This case is about an incident which took place in the interview room of the Tokyo Detention House when detention house personnel prevented Ms. Takenouchi, a defense counsel, from taking photos of her client and called off the interview, while she attempted to take photos of her client, whom she had found in bad health, for the preservation of evidence as part of her duties as a defense counsel.
In light of the right to counsel being constitutionally guaranteed, the Tokyo District Court ruled that an interview with a defense counsel shall not be stopped unless a reasonable possibility is recognized, under the specific circumstances, that the detainee awaiting a judicial decision may flee, conceal or destroy evidence, or violate any other purposes of the facility. Thus, the district court ordered the national government to pay 100,000 yen in compensation, stating that the act of the counsel taking photographs did not give rise to any such possibility.
The Tokyo High Court, however, held that, on the grounds that: (i) the term "interview (sekken)" can be interpreted as "meeting (menkai)"; and (ii) recording devices such as cameras and video cameras were not prevalent at the time when the Code of Criminal Procedure was established, and the act of taking photos, videos, etc. by defense counsel was not assumed under the Code of Criminal Procedure, such acts of photography, etc. are not included in the “interview” as communications to be guaranteed for performing the duties of attorneys, and the presentation of evidence shall be made not by photos, etc. but in accordance with Article 179 of the Code of Criminal Procedure. Thus, the Tokyo High Court dismissed the claims by ruling that an “interview” can simply be stopped if any act violating the rules stipulated by the penal institution is detected without having to consider the possibilities of fleeing or concealing/destroying evidence, and by ruling that the act of stopping photography or taking a step to call off an interview does not unduly restrict the professional duties of attorneys.
In the first place, attorneys have the right to speak in defense of their clients. Thus, they should take every possible action in order to fulfill the procedural rights of suspects or defendants under physical restraint in relation to criminal proceedings. The act of defense counsel taking photos and videos should be regarded as being equivalent to taking notes or making sketches for securing evidence, including securing the details of the suspects' claims. This is indeed a necessary tool for fulfilling the right to counsel, and should therefore be guaranteed under the right to counsel. In the case of Goto vs. Japan (a case in which the plaintiff was seeking compensation), the Osaka High Court held, on January 25, 2005, that an “interview” was not limited to verbal communication alone. Accordingly, interference in the act of a defense counsel taking photographs in an interview room without specific reason can and should be regarded as impermissible. In this regard, we have to say that the ruling handed down by the Supreme Court was entirely unreasonable.
Although the ruling of Tokyo High Court set forth that acts such as photography, etc. are not guaranteed under the right to counsel due to the non-existence thereof under the Code of Criminal Procedure at the time of its establishment, the scope of rights should be changed and broadened along with the advancement of technology. In a situation where there is rapid change in terms of technology, as well as the ways in which facilities are administered, applying such a narrow interpretation of the right to counsel in a manner that rigidly adheres to the circumstances at the time when the law was established, and that disregards the changes in the time and the current situations of legal practice is equivalent to a denial of the right to counsel which is derived from the Constitution. The Supreme Court clearly should have set forth its view concerning these points.
The JFBA has been consistently calling on penal institutions, detention facilities, and juvenile correctional facilities to end restrictions on (i) counsels bringing in devices equipped with audio/video recording functionality, and (ii) the act of taking photographs (including video-recording) in interview rooms, and also to end inspections of photos (including videos) taken in such circumstances, because such restrictions may violate the right to counsel as well as the legitimate activities of defense counsel.
The JFBA hereby wishes to reiterate that it strongly urges the institutions concerned to guarantee the freedom of communication between suspects/defendants and their defense attorneys.
June 17, 2016
Japan Federation of Bar Associations