List of Issues:

1. Are prisoners allowed to appear in court for a civil suit in which they are plaintiffs or defendants? If not, please provide the concrete reason and legal basis for not allowing them to do so.
   
   
2. Co-defendants under criminal detention and their lawyers are not allowed to meet to discuss their defense together in a detention center. Does this not contravene Article 14, Paragraph 3(b) of the Covenant which guarantees everyone adequate time and facilities for the preparation of one's defense?
   
   
3. In Japan, a suspect can be detained as long as 23 days after arrest. During this period, the police interrogate the suspect to produce a document of confession, sometimes for over 10 hours a day, and lawyers are not entitled to attend the interrogation. Does this practice not constitute coercion of testimony against oneself that is prohibited under Article 14, Paragraph 3(g) of the Covenant?

Background:

1. The procedure of oral testimony in civil lawsuits limits the right of prisoners to attend a trial in which they are either plaintiffs or defendants. Under exceptional cases, such as when they are to testify, defendants awaiting trial may be present at an open trial. However, even in the case of their own testimony, convicted prisoners cannot be present at trial, and their testimony is taken in the prison.
   
   Furthermore, even when a court allows a prisoner to testify in an open trial, it may not be possible due to the strong objections of the detention center. This is exactly what happened in a case filed by a journalist along with a prisoner who was in prison under sentence of death. They were bringing a suit together, seeking annulment of the administrative disposal and damages for the authority's decision not to let the journalist meet the prisoner, a decision which had been made before the death sentence became final. Because of the strong opposition of the authority in charge of his detention, even though the court had given permission for the prisoner to testify in open court, the prisoner was forced to testify in the detention center and was not allowed to appear in court.
   
   In a recent suit as well, a detention center has presented a request to avoid the testimony of a prisoner in open court, and the request is very likely to be accepted.
   
   If they have legal counsel, prisoners may not need to be present in court at every stage of a trial. Still, when they testify as plaintiffs, they should testify in an open court, just as in regular lawsuits. It is treatment that meets the provision of Article 14, paragraph 1 of the Covenant which stipulates "All persons shall be equal before the courts and tribunals. ... everyone shall be entitled to a fair and public hearing by a[n] ... impartial tribunal."
   
   
2. In a case where two or more people are indicted as accomplices, they often have a common legal counsel and common issues that they must discuss together in order to cooperate in their defense. In such a case, it should be an essential requirement that the whole party, accomplices and lawyers, discuss their defense together. However in Japan, lawyers are allowed to interview only one individual accomplice at one time, but not to discuss defense with all the accomplices at the same time. This restriction is based on a formalistic concept of defense activities which holds that they are satisfied simply by giving suspects an opportunity to communicate with lawyers. The practice falls short of Article 14, Paragraph 3 (b) of the Covenant, which provides that everyone charged with a criminal offense shall be entitled "to have adequate time and facilities for the preparation of his defense."
   
   
3. While the right to remain silent and the right to counsel are guaranteed under the Constitution of Japan, for criminal suspects they are not effectively safeguarded in practice. Most criminal suspects are detained in daiyo kangoku, the substitute prison generally located in the police station, for the convenience of the investigative authorities to conduct interrogations.
   
   There is no time limit placed on interrogations and it is not rare for a suspect to be interrogated for over 10 hours a day. As a general theory, it is acknowledged that arrest and detention on different charges is illegal. However, in practice, detention under a charge apart from that of arrest is not held to be illegal, thus there are many cases in which detention lasts more than the statutory limit of 23 days as a prisoner is interrogated on a different charge under the pretense of "voluntary examination." Even if suspects are told of their right to remain silent, they are in fact most likely to be compelled to testify against themselves and to sign a confession when they are detained for interrogation by an investigative authority for a long period of time. Furthermore, there is no mechanism to arrange for court-appointed counsel for suspects before indictment. They can only be interviewed by lawyers on duty dispatched from bar associations. Even when they have hired their own lawyer, these lawyers are not allowed to attend the interrogations and therefore it is impossible for them to see or raise objections when the suspect is compelled to confess. If lawyers are not entitled to be present at interrogations, a system should be established to check de-facto coercion to testify against oneself, such as, in the very least, videotaping the interrogation as is done in Australia.
   
   Unless a surveillance mechanism and the lawyers' right to attend interrogations are provided in Japan, its long detention of suspects should be seen without a doubt as a means of compelling suspects to testify against themselves.