Article 127（1）of the Act on Penal Detention Facilities and the Treatment of Inmates and Detainees prescribes that; "When it is deemed necessary for the maintaining of discipline and order in a penal institution or for the adequate implementation of correctional treatment for a sentenced person, or for any other reasons, the wardens of penal institutions may have a designated staff member examine the letters the person sentenced sends and receives". However, Paragraph（2）of this article limits the examination of letters as follow;"With regard to the letters set out for the following reasons, designated staff members are to examine them to the extent necessary to ascertain that the letters fall under any of the following items; ……（iii）letters a sentenced person sends to or receives from an attorney ……who conducts duties prescribed in Article 3, Paragraph （1）of the Attorney Act with regard to the measures taken by wardens of penal institutions toward the sentenced person, or for any other treatment the sentenced person receives."The letters a sentenced person receives from their representative attorney-at-law are covered by Item（iii）of Paragraph（2）. The reason why the examination of such letters is limited is to enable a sentenced person to obtain effective assistance from his or her attorney concerning any legal matters. In practice, however, the content and the appearance of the letters are completely examined by the staff of penal institutions The reason for this is the insistence by staff that complete examination is required to determine accurately whether the letter falls under the stipulations of Item（iii）. This paper will examine whether this practice contravenes the purpose of Article 32 of the Constitution which guarantees the right to access to the court. The current practice raises serious doubts about whether free and full communication can actually occur between a sentenced person and his or her attorney. With the current situation, the person sentenced is unable to obtain effective assistance from his or her attorney to prepare or to proceed with any lawsuit against wardens or other staff of a penal institution. Clearly, if the person sentenced has no effective legal assistance, he or she is unable to obtain sufficient access to the court, and the purpose of Article 32 of the Constitution is therefore frustrated. It is for these reasons that this paper concludes that the current practice of complete examination should be abolished.

一橋大学大学院法学研究科

2019-11-10

Japanese(jpn)

departmental bulletin paper

VoR

10.15057/30905

1347-0388

AA1161370X

一橋法学

18

3

57

106

18巻3号(2019.11)

https://hdl.handle.net/10086/30905