Acquittal highlights legal loophole

Criminal trial procedures at odds with Japan's immigration policy

by Setsuko Kamiya

The recent murder acquittal of a Nepalese man overstaying his visa highlights how criminal trial procedures can be at cross-purposes with immigration policy, both of which are under the jurisdiction of the Justice Ministry.

But legal experts say the problem is nothing new.

The Tokyo District Court on April 14 acquitted Govinda Prasad Mainali, 33, of the March 1997 murder of a female employee of Tokyo Electric Power Co.

The court said it could not deny the possibility that someone else may have committed the crime, ruling there was sufficient reasonable doubt to acquit Mainali.

Following the ruling, Mainali was released from custody but was immediately handed to immigration authorities because he had also been convicted of overstaying his visa. He now faces deportation.

While deportation procedures were under way, the Tokyo District Public Prosecutor’s Office on April 18 filed an appeal against the murder acquittal with the Tokyo High Court and asked the district court to detain Mainali.

The court rejected that request the following day.

The Tokyo High Public Prosecutor’s Office later the same day made the same request to the high court, which rejected it on April 20.

Although prosecutors claim Mainali’s deportation will make further trial proceedings difficult, the high court said that technicalities prevented it from detaining Mainali.

The high court said it would not receive the necessary documents from the lower court until May 1, adding that the acquittal should be respected.

Even if such detention is permitted, it can only be done if appeal hearings merit it, the high court said.

The high court criticized the prosecutors, saying they should have tried harder to get a conviction by the district court, adding that they should have anticipated difficulties in appealing the case because the defendant faces deportation.

Legal professionals say appeal hearings can be held without the presence of the accused as long as they are informed of the appeal and its proceedings.

As of Wednesday, Mainali had received documents from the Nepalese Embassy requiring him to return home and he had obtained a plane ticket. He will leave as soon as immigration authorities execute a deportation warrant, sources said.

An immigration official said that although immigration authorities give priority to criminal procedures if over-stayers are on trial and are taken into custody, they will execute deportation procedures once the accused is released from confinement.

A further complication is that a person who is deported is not allowed back into Japan for five years, making it difficult to not only question an acquitted deportee during an appeal, but also to subsequently incarcerate the person here if found guilty.

Over-stayers who are convicted of crimes but given suspended sentences also face deportation, hampering any appeal attempt to clear their name.

“As far as immigration policy goes, once over-stayers are released from custody in criminal trials, we will go ahead with deportation procedures,” the official said.

This apparent inconsistency between criminal prosecutions and immigration policy has been recognized for years, said Akira Goto, a professor of law at Hitotsubashi University.

When visa over-stayers are found guilty of crimes but given suspended sentences, they cannot exercise their right to be present during an appeal, he said.

“In these cases, although the defendants appeal to a higher court in a bid to prove their innocence, they have no choice but to be deported,” Goto said. “This particular case probably stood out because it was the other way around.”

Mainali’s case may have attracted attention because it was an acquittal — a rarity in Japanese courts, where more than 99 percent of the accused are convicted, he said.

Some legal professionals claim prosecutors’ repeated requests for an acquitted defendant to be detained show criminal trial principles such as “presumed innocence” are not being respected.

Lawyer Kazuyuki Azusawa notes that trying to detain a person who has been acquitted violates the International Covenants on Human Rights.

“An acquittal is stronger than ‘presumed innocence,’ and there is no reason for the state to stop the man from leaving the country,” he said.

Goto said the current system in which prosecutors can appeal an acquittal is a fundamental problem with the criminal trial system.

“But even with the current system, exceptionally strict conditions must be necessary to detain a person after an acquittal,” he said.