FREEDOM FLEETING AMID DOUBLE JEOPARDY

Foreigners locked up despite acquittal

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Roberto Tokunaga was freed in May 2001. The 26-year-old Brazilian was acquitted by a district court in Nagano Prefecture of fatally abusing his 3-year-old daughter.

But what happened to him five months later — when prosecutors appealed his acquittal before the Tokyo High Court — came as a shock: The court allowed the prosecutors to lock him up in the Tokyo Detention House.

He stayed there for 10 months. Then the court last July overturned the lower court acquittal and sentenced him to five years. And his detention was extended by four months until the Supreme Court rejected his appeal in November.

“The court took us by surprise by allowing an acquitted man to be detained further, and in a manner akin to being abducted,” said lawyer Tsuyoshi Kamijo, chief of Tokunaga’s defense trial team.

“The defendant later said he thought it was a setup by the court, prosecutors and even us (his defense lawyers),” Kamijo said.

He said Tokunaga’s detention was the second involving an acquitted foreigner, following that of a Nepalese man who, after being cleared of a woman’s murder in Tokyo, was returned to detention in 2000 while prosecutors appealed that acquittal, only to eventually be sentenced to life.

The detention decisions have raised questions about the way the courts treat non-Japanese, especially those from developing countries.

The Criminal Procedure Law stipulates that defendants should not be held unless there are sufficient reasons to suspect their guilt. Thus their detention would end if they are acquitted.

Defendants can be detained only when they have no fixed address, they pose a flight risk or may attempt to destroy evidence.

But courts usually do not explain which of these conditions apply in each case.

In a heavily criticized decision in May 2000, the Tokyo High Court allowed prosecutors to continue holding the Nepalese man, Govinda Mainali, 36, despite his lower court acquittal in the 1997 slaying. The court only said there were sufficient reasons for the detention.

No explanation was given for Tokunaga’s detention either.

Tokunaga had a job and a registered address “just like an ordinary Japanese citizen,” said Kyohei Imai, a freelance journalist who covered both trials.

The court did not tell Tokunaga in advance that it planned further detention. So he did not bring any daily necessities with him to court, his lawyers said.

The high court sentence came only after a few sessions, and no new evidence was presented.

The Supreme Court then rejected Tokunaga’s appeal in November, and since then he has been serving his sentence at Fuchu Prison in western Tokyo, according to his supporters.

Kamijo said Tokunaga’s detention is a breach of the constitutional principle that laws should be applied to all in an equal manner.

Detaining the acquitted also implies that the higher courts consider lower court rulings to be just worthless pieces of paper, he added.

Tokunaga came to Japan in October 1993, married a Brazilian in 1995 and had a daughter in 1997.

In June 2000, he was arrested on suspicion of fatally abusing the girl, whose body was found in their apartment in the village of Hodaka, Nagano Prefecture, earlier that month.

When interrogated by police, he confessed that he struck and kicked her several times to quiet her. Then during the district court trial, he withdrew the confession, claiming he made it only to protect his wife, who, he said, actually killed their child.

The Nagano District Court’s Matsumoto branch acquitted him in May 2001, judging that his initial confession contradicted other evidence. He was immediately freed from the Matsumoto Detention House.

Tokunaga then found a job at a laundry factory in Nagano Prefecture.

His wife was never charged, and his lawyers said they do not know her whereabouts.

While Tokunaga’s case has drawn less attention than Govinda’s, experts say his detention after acquittal poses a larger problem.

When Govinda was acquitted, he was placed in the custody of immigration authorities because he faced deportation for visa violations. Prosecutors had him returned to the detention house so they could keep him in Japan for the appeal trial.

There is no law spelling out how foreigners without proper visas who have been acquitted of crimes should be handled if prosecutors seek an appeal.

Because of his Japanese ancestry, Tokunaga had a valid visa through January 2003 allowing him to work.

“The Japanese public should be more aware of these cases, because anyone accused of a crime could face such detention after an acquittal,” journalist Imai said.

The Supreme Court is currently examining Govinda’s appeal of his life sentence. He remains in the Tokyo Detention House, where he has languished for nearly six years.

Like Govinda, Tokunaga dreamed of returning to his country with his earnings from Japan and building a house for his family. It appears neither dream will come true. He most likely faces deportation as soon as he finishes his term.