再審請求人たる受刑者と再審請求弁護人との面会をめぐる法的問題

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タイトル別名
  • Prisoners' Right to Confer Privately With Counsel Concerning Application for Retrial
  • サイシン セイキュウジン タル ジュケイシャ ト サイシン セイキュウ ベンゴニン ト ノ メンカイ オ メグル ホウテキ モンダイ

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説明

This article will discuss the question of whether sentenced prisoners have the right to confer privately with counsel when they are preparing applications for retrial or after they have applied for retrial. This article will answer the question in the affirmative. Article 440 (1) of the Law of Criminal Procedure declares that a person applying for retrial must be given the right to counsel. Article 39 (1) states that the accused person in custody may, without an official present, have an interview with, or send to/receive documents or articles from counsel or prospective counsel upon the request of a person entitled to appoint counsel. According to the official interpretation, the latter provision does not apply to a sentenced prisoner applying for retrial. In practice, a prison officer attends to listen to any interview between a prisoner applying for retrial and his/her counsel. Communication is essential for effective applications for retrial and this practice obstructs free communication between the prisoner and their counsel. In 2013, the Supreme Court held that prison officers may not attend to listen to interviews between death row inmates applying for retrial and their counsel, without special circumstances justifying the officers' attendance. According to Article 440 (1) of the Law of Criminal Procedure, death row inmates have the right to effective assistance from counsel concerning their application for retrial, and having a prison officer present during the interview could hinder that right. Even after the decision of the Supreme Court was rendered, prison officers continue to be present during interviews between the sentenced prisoners applying for retrial, with the exception of death row inmates. This article argues that the Supreme Court's decision should apply to all interviews between prisoners applying for retrial and their counsel. Private interviews will ensure that prisoners have effective assistance from counsel, a right guaranteed by Article 440 (1) of the Law of Criminal Procedure.

収録刊行物

  • 一橋法学

    一橋法学 14 (1), 41-80, 2015-03-10

    一橋大学大学院法学研究科

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