ROUGH JUSTICE FOR OUTSIDERS?

Detention of acquitted prompts legal cross fire

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The Tokyo High Court has recently ordered the detention of a 23-year-old Chilean man acquitted of robbing a jewelry shop and stealing a car.

Having been cleared in May by a court in Nagano Prefecture, Yokohama resident Moraga Reyes Alejandro Andres has been locked up at the Tokyo Detention House, following an appeal against his acquittal.

In explaining its decision, the high court cited concerns that the former electrical engineer could flee or destroy evidence in the leadup to the Oct. 2 start of appeals proceedings.

This is the third confirmed case in the past three years in which an acquitted foreigner has been locked up in the wake of an appeal by prosecutors.

During his three-month period of freedom after his lower court acquittal, Moraga applied to renew his visa, which was slated to expire on Sept. 2.

He came to Japan with his parents when he he was elementary-school age and has since lived here under a legitimate visa.

On Aug. 22, he was summoned to the Yokohama branch of the Tokyo Immigration Bureau and was told that his visa could not be renewed. The bureau then placed him in custody by showing him the detention order from the court. Moraga has since never been allowed to visit his home.

Lawyer Kenzo Akiyama, a former Tokyo High Court judge, said he has never heard of such action being taken against a Japanese defendant following an acquittal by a lower court.

The Criminal Procedure Law allows for the detention of defendants in criminal trials only when there are sufficient reasons to suspect their guilt, and if they are either of no fixed address, or pose a risk of fleeing or attempting to destroy evidence.

“A defendant is supposed to be cleared of suspicion when he is acquitted by a lower court, and the recent decisions by the high court imply that it does not respect lower court rulings,” he said.

“Such a decision could undermine the authority of lower courts and thus jeopardize the entire judicial system in Japan.”

Japan is a rare case among industrialized nations in that it allows prosecutors to appeal acquittals.

In a widely criticized decision in May 2000, the same high court ordered the detention of a Nepalese man during appeals proceedings, even though the Tokyo District Court had cleared him of murdering a woman in 1997.

The court issued the order after prosecutors, who have no legal rights to demand the detention of defendants following their indictment, repeatedly asked it to exercise its power to detain the acquitted Nepalese man for the appeals proceedings.

At that time, the man, who had overstayed his visa, was set to be deported.

In locking up the Nepalese man, the court said it was empowered to place acquitted defendants in custody ahead of appeals trials as long as there was a chance they could escape or destroy evidence.

In October 2001, a Brazilian man who was acquitted by a district court of killing his 3-year-old daughter in 2000, was ordered by the same high court to return to a detention house.

In both cases, the high court eventually overturned the lower court acquittals and sentenced the defendants to prison terms.

Moraga was indicted in January 2002 on charges of stealing jewels and other items worth 750,000 yen from a recycling shop in Adachi Ward, Tokyo, in August 2001.

Moraga allegedly had a Brazilian accomplice.

He was also indicted on a separate charge of stealing a car worth 600,000 yen from a parking lot in Suwa, Nagano Prefecture, with two other Brazilians in the same month.

In May, the Suwa Summary Court acquitted Moraga, saying that there was not sufficient evidence to prove his involvement in the crimes.

No direct evidence was presented by prosecutors, other than testimony given by three Brazilian acquaintances of Moraga’s.

The three acquaintances were convicted by the same court.

Prosecutors, who had demanded a 2 1/2-year prison term for Moraga, appealed his case to the Tokyo High Court in June.

Despite the rules laid out by the Criminal Procedure Law, prosecutors customarily request the pretrial detention of defendants who do not admit to the charges leveled against them.

Courts routinely approve these requests.

If defendants plead not guilty in court, their requests for release on bail are often rejected.

Such protracted detention periods are often accused by legal experts of being cases of “hostage justice.”

Still, defendants are immediately released once they are acquitted, with the law stipulating that detention orders expire when defendants are cleared.

Kuniaki Harayama, a lawyer representing Moraga, lambasted the high court’s latest decision, stating that it is discriminatory to view a defendant as a potential escapee just because he is a foreigner.

Harayama also said that the court’s decision appears to be especially strange in light of the fact that Moraga’s charges are relatively minor.

He warned that anyone accused of a crime, regardless of nationality, could face a protracted detention period even in the event of a lower court acquittal.