In the extremely rare case (more than 99 percent of all criminal cases that go to trial result in conviction) where the prosecution loses (meaning and the accused is adjudged innocent and goes free), the prosecutors can appeal. Unfortunately, as you can see in the article below, the rights of the accused differ by nationality.
If you are a Non-Japanese, and even if you are judged innocent by a lower court, you are still incarcerated for however many months it takes for the higher court to deliver a verdict (in the case below, innocent again). Because foreigners aren’t allowed bail in Japan. Unlike Japanese: When Japanese defendants appeal guilty verdicts, they are not detained (see Horie Takafumi and Suzuki Muneo; the latter, now convicted of corruption twice over, is still on the streets, even re-elected to the Diet!).
The logic for detaining the Swiss woman in the article below is even more stupefying. The usual argument given for continuing to imprison foreigners is because they are assumed to be a flight risk (the same logic applied to denying foreigners home loans, credit cards and cell phones)–i.e. they might leave the country! (whereas Japanese are chained to these islands, of course). However, in the Swiss woman’s case below, the prosecution argued for her detention because she might overstay her visa and be deported! (I wonder if she was then counted as an “overstayer”…)
Finally, note that the innocent Swiss defendant below still is in custody, despite two innocent verdicts. Expect more months (if not years!) of detention if the prosecution decides to appeal to the Supreme Court! Read on and shake your head in noncomprehension….
Let’s launch a series on the Debito.org Blog on how fucked up Japan’s judiciary is–and start with this case of “hostage justice”. Debito in Sapporo
Swiss woman acquitted of drug smuggling again; questions raised about her detention
04/10/2008 THE ASAHI SHIMBUN
Courtesy of TPR
A Swiss woman on Wednesday was again found not guilty of drug smuggling, but she had to remain in detention for nearly eight months after being acquitted the first time.
The decision by the Tokyo High Court raises further questions about the practice of incarcerating foreign defendants during the appeals process after they are found innocent.
Lawyers representing the 28-year-old woman said she is a “victim of defects in Japanese laws” and called for new legislation to deal with the problem.
In the ruling, Presiding Judge Takao Nakayama brushed aside prosecutors’ arguments that the Swiss woman intentionally tried to smuggle about 2.3 kilograms of methamphetamines hidden in a suitcase in 2006, saying there was “room for reasonable doubt” about her guilt.
The woman said she was asked to carry the suitcase by an acquaintance and did not know what was inside.
The woman was arrested in October 2006 and later indicted on charges of trying to smuggle methamphetamines from Malaysia.
In August 2007, the Chiba District Court ruled the woman was innocent. But prosecutors appealed, and were granted permission from the district court to detain the woman.
Her detention, including the period spent in an immigration facility, lasted for more than 11/2 years.
After reading the ruling Wednesday, Judge Nakayama told the woman that her detention could not be avoided.
“Even this court cannot help but feel sympathy,” Nakayama said. “But you imprudently brought methamphetamines into Japan even though you said you were not aware.
“Please understand there was ample reason to assume a criminal act,” he said.
Her lawyers said there is a double standard concerning Japanese and foreign defendants.
“If the defendant were Japanese, she would not have been detained,” one lawyer said. “Now that she has been found not guilty, the rationale behind her detention has become even more unclear.”
Under the Criminal Procedure Law, a Japanese defendant found innocent would be immediately released from detention. But it is not the same for foreigners.
Prosecutors have argued that if foreign defendants are deported because their permits to stay in the country have expired, it would be difficult to continue with an appeals trial.
The twice-acquitted woman could end up back in detention if prosecutors decide to appeal once again.
Kazuhiro Suzuki, deputy chief prosecutor of the Tokyo High Prosecutors Office, issued a statement Wednesday, saying the ruling was “very disappointing” and that prosecutors will “study the ruling carefully and take appropriate measures.”
The woman was taken into custody at an immigration facility after Wednesday’s ruling.
The woman’s lawyers sought her release after her first acquittal, but the Supreme Court in December ruled in favor of the prosecutors.
The top court said there was sufficient reason to suspect a crime had occurred and saw no problem in detaining the woman for the appeals trial.
However, two of the five justices on the panel said the detention was the result of flaws in the Criminal Procedure Law and the Immigration Control and Refugee Recognition Law.(IHT/Asahi: April 10,2008)