On the afternoon of Dec. 23, 2004, Mr. Yosei Arakawa, a 58-year-old Buddhist monk, entered a seven-story condominium building in Katsushika Ward, Tokyo, to drop political flyers of the Japan Communist Party into the door mailboxes of residents. He had done this before, but this time an angry resident telephoned police, who took him into custody.
A 23-day detention of Mr. Arakawa was followed by his indictment on a charge of trespassing. After a 1 1/2-year-long trial, he was acquitted by the Tokyo District Court on Monday.
Mr. Arakawa’s case represents the fourth one in Tokyo since February 2004 in which ordinary citizens or civil servants engaged in distributing political leaflets have been indicted on a charge of either trespassing or violating the national public servant law. Although the court in Mr. Arakawa’s case did not cite Article 21 of the Constitution, which guarantees freedom of speech and other forms of expression, in handing down the “not guilty” ruling, we hope the ruling will deter police and prosecutors from making liberal use of trespassing and other charges to prevent citizens from distributing political leaflets.
The ruling first of all pointed out that since the corridors, elevators and staircases of a condominium building connect with residents’ apartments, entering them without good reason constitutes trespassing. Then, pointing out that the defendant did not enter the building to commit a crime or conduct other harmful activities, it based its judgment of whether Mr. Arakawa’s entry constituted trespassing on two criteria: (1) the shape of the condominium as well as the entrant’s purpose, behavior and actions, and (2) the existence of a socially accepted consensus with regard to allowing or prohibiting such entry.
The ruling noted that the constitutional guarantee of the right to distribute political leaflets does not necessarily mean that entering a condominium building for such purpose is unconditionally permitted. But it listed several mitigating factors, including the fact that the leaflets distributed by the Buddhist monk, which told of JCP members’ activities in the Tokyo Metropolitan and Katsushika assemblies, were unlikely to have given residents reason to fear that their peace and privacy were about to be violated; that nobody stopped the monk when he entered the building; and that he stayed in the building for only seven or eight minutes.
Although a notice in the first-floor lobby did prohibit the posting of ad leaflets and entry by outsiders, it read as if it applied only to commercial flyers, and people could easily walk by without noticing it, the court pointed out.
In sum, the court said even if the defendant entered the building against the will of the residents’ association, his action cannot necessarily be regarded as “entry without good reason.” It went on to emphasize that it is difficult to say whether there is a socially accepted consensus against someone entering a corridor or staircase in the daytime for a short time, even though people, especially in urban areas, have developed a strong sense of privacy and crime-prevention awareness as evidenced by the spread of auto-lock systems at building entrances and “no entry” notices.
Although the ruling did not refer to the constitutional guarantee of freedom of expression in acquitting the defendant, it appears the court carefully weighed that right as well as people’s general unease over outsiders’ entering their buildings.
The situation behind the Buddhist monk’s arrest, however, raises a common-sense question: What did Mr. Arakawa do to deserve arrest? According to the Tokyo Shimbun, Mr. Arakawa left one corridor when a resident got angry. Wishing to avoid future trouble, Mr. Arakawa came back and asked the resident, “Please tell me your room number so that I don’t leave leaflets at your door in the future.” The resident again got angry and called police. Mr. Arakawa waited on the first floor for police to come as he was told to do.
In February 2004, three citizens were arrested for distributing flyers at housing for Self-Defense Force members in Tachikawa, Tokyo. The flyers expressed opposition to sending a Ground Self-Defense Force unit to Iraq. Although the defendants were acquitted in the first trial, the Tokyo High Court last December found them guilty of trespassing, pointing out that they repeatedly distributed leaflets despite protests from residents.
Actions by police and prosecutors in this and other cases against citizens who distribute political leaflets have already intimidated people engaged in an array of civic and political activities. Higher courts, and especially the Supreme Court, must not slight the constitutional guarantee of freedom of expression.
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