Protection of Prisoner-Lawyer Confidential Communications and Japanese Prison Law

Abstract

Ten years have passed since the Act on Penal Detention Facilities and Treatment of Sentenced Persons (2005 Prison Act) enacted on 24 May 2006. The Act, which includes landmark provisions such as the establishment of “the Board of Visitors for Inspections of Penal Institutions”, imposed major changes on the administration of Japanese prisons. However, ten years of prison practice under the new law have revealed various flaws, especially those regarding the protection of confidential communications between prisoners and lawyers.

While all prisoners, namely un-sentenced persons, sentenced person and inmates sentenced to death, may be visited by their lawyers, it is often in the presence of monitoring guards. Correspondence from lawyers is, in practice, censored without exception. This article examines the legality of such restrictions, applying the international human rights standards expressed by relevant international instruments. After an overview of how the new law provides for visits and correspondence for sentenced persons, un-sentenced persons and death row inmates, the article concludes that the 2005 Prison Act does not meet the human rights standards recognized by the UN Human Rights Committee as well as other international instruments. In particular, the newly revised UN Standard Minimum Rules for the Treatment of Prisoners (SMR) enunciate that protection of the right to communicate with a lawyer in private should be expanded to cover “any legal matter” and not be limited to criminal matters. It would thus be difficult to deny that the 2005 Prison Act and the practice under the new law are far below the higher standard established by the SMR.

Given that the importance of confidential communication between lawyers and prisoners has been repeatedly affirmed by both the HRC and other international instruments, it would be excessive to impose restraints on confidentiality solely on account of a vague threat to the aims of incarceration. Legal and practical reform is required in accordance with these international standards, and prison administration in Japan should pave the way toward protecting the confidentiality of prisoner-lawyer communications.