In March of 1997 a female employee of a Japanese electric company, the Victim, who worked at night as a prostitute was murdered by strangulation in Tokyo. Based on semen evidence collected from the crime scene the police concluded that Mr. Gobinda, the Defendant in this case, had been one of the victim's customers the night of the murder.
Mr. Gobinda, the Defendant, who is a Nepali citizen, and was residing illegally in Japan and was initially arrested, charged and found guilty on immigration grounds. Mr. Gobinda's sentence on the immigration grounds was suspended, and he was released in May 1997. Immediately upon his release however, the Defendant was arrested on charges for the March 1997 strangulation of the Victim as described above. The Defendant was subsequently held in detention prior to the initiation of the trial and for the duration of the trial for approximately two years
On May 8, 2000 the Tokyo High Court, the court of first appeal, ordered the detention of Mr. Gobinda (the Defendant) a Nepali citizen, in spite of the acquittal of the Defendant by Tokyo District Court. This ruling is considered unreasonable and in contravention of article 14 sub 1 of the Constitution of Japan, the anti discrimination clause, that provides for equal treatment of individuals under the laws of Japan, among others, irrespective of race. Furthermore, the High Court’s ruling is considered contrary to article 26 of the International Covenant on Civil and Political Rights. In light of the above the May 8th ruling of the High Court should be reconsidered.
The Tokyo District Court reviewed the case for a period of two years and a half and during this period convened regarding the case in thirty-four separate court sessions. After what is considered to have been lengthy and careful consideration of the case the court of first instance ruled that the Defendant was innocent on April 7, 2000. The Defendant was handed over to the Regional Immigration Bureau of the Ministry of Justice for the examination of his possible deportation.
In principle, where the district court rules that a defendant is innocent, the detention must be terminated and the defendant is released even if the acquittal judgment has not been finalizd. It is exceptionally rare that the defendant is detained again thereafter for the same charge that has been tried in the district court. The Tokyo District Court which acquitted the defendant, ruled against the prosecutor’s motion for discretionary order for renewal of detention.
The Tokyo High Court, however, issued a ruling to continue the Defendant’s detention. The Tokyo High Court issued this ruling based on the same facts reviewed by Tokyo District Court. After only summary review of the records of the first instance, the Tokyo High Court concluded that the facts were sufficient to find that the Defendant had committed a crime and there was risk that the Defendant would either conceal or erase evidence or escape, thereby providing grounds for the continuation of Defendant's detention. Its order was as hasty as the one that a single judge typically gives to detain a defendant awaiting trial.
The Tokyo High Court should recognize the modern reality of the movement of individuals across borders in this internationalized era and the related need to insure and secure the human rights of all individuals irrespective of nationality. The present order, however, shows lack of recognition of the above. The Tokyo High Court put undue emphasis on the fact that the defendant is a foreign resident in Japan. It has to be concluded that the Tokyo High Court treated the Defendant of a foreign national discriminatorily in order to enforce the possible judgment to reverse the acquittal judgement of the first instance.
The JCLU sincerely hopes that the Defendant, who was acquitted in the district courtl, will be given a just trial regardless of his nationality. A just trial would include the guarantee of freedom of the defendant’s person regardless of his or her nationality. The Defendant’s attorney has requested the reversal of the Tokyo High Court’s ruling in a special appeal to the Supreme Court against the High Court’s order. The JCLU sincerely hopes that the Supreme Court will make a fair and just decision in this case.