Lawyers have lodged an appeal with the Supreme Court against a high court judge’s decision to detain a Nepalese man who was cleared of murder and robbery charges by a lower court.
The counsel for Govinda Prasad Mainali, 33, argued Tuesday that the detention of an acquitted suspect requires new evidence or information that would lead the court to question the earlier decision.
In Mainali’s case, “there are no prerequisites that allow for such detainment,” one of his lawyers said, adding that international conventions would allow an extradition request if he is found guilty by an appellate court following his departure from the country.
They added it is unconstitutional to take advantage of the detention order — issued May 8 by Judge Toshio Takaki of the Tokyo High Court — to prevent Mainali from being deported from Japan so as to enable prosecutors to continue his prosecution.
The Tokyo High Court last week upheld a decision by Takaki to detain Mainali, pending the appeal of his acquittal on murder and robbery charges.
Judge Shogo Takahashi decided Friday to reject an appeal by Mainali’s lawyers, who had argued that Takaki’s decision to detain Mainali was based solely on a dossier from the Tokyo District Court and that Takaki did not deliberate the case.
They argued that detaining Mainali before beginning deliberations violated the Constitution and the Criminal Procedure Law, which guarantees due process.
Takahashi disagreed, however, saying the lawyers’ argument does not recognize that the Criminal Procedure Law allows prosecutors to lodge an appeal in most cases. He said Mainali’s acquittal was only one of several factors that determined the court’s decision to detain him.
Mainali, a former restaurant employee, had been detained by Tokyo immigration authorities following his acquittal in mid-April pending deportation procedures for overstaying his visa. He came to Japan in February 1994 on a tourist visa.
He was moved to the Tokyo Detention House after Takaki’s ruling. Immigration authorities then suspended deportation procedures.
On April 14, the Tokyo District Court acquitted Mainali of murdering Yasuko Watanabe, an employee of Tokyo Electric Power Co., and of stealing her belongings in 1997.
The prosecutors appealed and asked the district court and later the high court to detain Mainali, saying deportation would make it impossible to continue his prosecution.
Judges in both courts rejected the request, but the prosecutors went back to the high court a second time to secure the detention order.
Takahashi said it is necessary to detain Mainali because he has no fixed address and may flee. He also said Mainali might destroy evidence.
Mainali’s lawyer Hiroshi Kamiyama said, “There are two conflicting opinions in the high court, and we expect the Supreme Court to come up with a practical decision to settle the matter.”