Overstaying Your Visa And Double Jeopardy

[Mulboyne]

Asahi: Deja vu
Here's an anomaly that is again puzzling legal experts after a controversial court decision seven years ago in a high-profile murder case. The question is: When a foreign national without a valid visa is found not guilty in a district court and released, should the person be detained for a high court trial to prevent deportation by immigration authorities? The question surfaced again this summer when a Swiss woman was detained soon after her acquittal in a drug case... Under the Criminal Procedure Law, an acquittal nullifies a detention warrant. Thus, a Japanese national would go free. But when a non-Japanese defendant's stay in the country is illegal, immigration authorities are obliged to initiate deportation proceedings. If deportation goes ahead, it effectively stalls further trial proceedings in the event an appeal is lodged.

The latest case centers on a Swiss woman who was acquitted of drug smuggling charges at the Chiba District Court on Aug. 22...Court decisions on her ensuing detention have varied... The woman was released upon acquittal, but was then taken into custody by the Tokyo Regional Immigration Bureau. The Chiba District Public Prosecutors Office, meanwhile, appealed the ruling on Aug. 27 and filed a request with the court for permission to detain her... On the assumption she would be found guilty and the ruling finalized, prosecutors said there was little chance of being able to enforce the sentence if she lived overseas. That very same day, the district court decided she be detained. The woman was transferred to the Tokyo Detention House. Her lawyers filed a complaint with the Tokyo High Court, which on Sept. 5 nullified the district court decision. The high court's fourth criminal division said there were insufficient grounds for the Chiba court to allow the detention after it had just handed down a not-guilty verdict. It said such a detention would be allowed only when there was a decisive mistake in the ruling or when special circumstances had arisen... Two days later, however, the high court's fifth criminal division enforced her detention in response to a request by the Tokyo High Public Prosecutors Office. Her lawyer filed a complaint against the decision with the high court. By Monday, the high court's sixth criminal division had rejected the appeal to free her...It seems likely that the process will wind its way to the Supreme Court eventually.

A similar controversy rocked the judicial circles in 2000 when a Nepalese defendant was detained after a Tokyo District Court acquittal. The man was charged with robbing and killing a female employee of an electricity company, whose body was found in an apartment in Tokyo's Shibuya Ward in March 1997. He was acquitted in April 2000, but was immediately held by immigration authorities for overstaying his visa. Following an appeal by prosecutors, the Tokyo High Court decided the man should remain in detention during the court procedure, prompting his lawyers to file a complaint. After repeated requests, detention decisions and filing of complaints, the Supreme Court decided the man should remain in detention. The Nepalese was later found guilty by the high court, and his life sentence was finalized in November 2003 after the Supreme Court turned down his appeal...more...

[Mulboyne]

Kyodo via Japan Today: Supreme Court OKs detention of Swiss woman acquitted of smuggling

The Supreme Court has approved the detention of a Swiss woman after she was acquitted of smuggling stimulants, sources close to the trial said Friday. Presiding Justice Kohei Nasu dismissed an appeal by the 28-year-old woman against a lower court decision that accepted a request from public prosecutors that she be detained to prevent her from being deported, they said. Prosecutors requested that she be detained because if she was deported it would impossible for the prosecutors to appeal her acquittal in higher courts. The woman was arrested Oct. 24 last year at Narita airport after arriving on a flight from Malaysia carrying 2.2 kilograms of stimulants in a suitcase. She pleaded not guilty, saying she had not known about the drugs. The Chiba District Court acquitted her in August, citing reasonable doubt about her intent.

[Mulboyne]

Mainichi: Swiss woman's acquittal of smuggling stimulants into Japan upheld

An appeal court has upheld a lower court's acquittal of a Swiss woman indicted for smuggling stimulants into Japan. The Tokyo High Court thus dismissed an appeal by prosecutors against a district court ruling that found the 28-year-old defendant not guilty of violating the Stimulants Control Law. The woman was initially released shortly after the district court ruling, but was detained again. She was later freed following the appeal court's acquittal. Following the ruling, Presiding Judge Takao Nakayama expressed regret over her detention. "It was unfortunate that you were detained again (after the district court's acquittal). I feel sorry for you."

[Mulboyne]

[Catoneinutica]

What's odd about the Swiss woman's case is that her defense seems identical to Nick Baker's, yet she was acquitted. Is this recent spate of leniency (for Westerners, anyway) a bit of a reaction to the widespread criticism of Japan's criminal justice system prompted by Baker's case and so, so many others?

-catone
-Hey Sparkzilla! Looks like you and Baker are cellmates in Olde Blighty now!

[Mulboyne]

What's odd about the Swiss woman's case is that her defense seems identical to Nick Baker's. Is this recent spate of leniency (for Westerners, anyway) a bit of a reaction to criticism of Japan's criminal justice system vis-a-vis Baker's case and others?

Steve Bildermann pointed out some year's ago that Baker's lawyer did not produce evidence of "extenuating and exculpating circumstances" in the pre-trial or during the trial itself. Instead, they were introduced at appeal, by which time Steve believed they were inadmissible under Japanese law. It's possible that Japanese courts are becoming more lenient towards the "unknowing mule" but it could just be that the Swiss woman and this British guy had lawyers who made their excuses at the right time.

[Catoneinutica]

Steve Bildermann pointed out some year's ago that Baker's lawyer did not produce evidence of "extenuating and exculpating circumstances" in the pre-trial or during the trial itself. Instead, they were introduced at appeal, by which time Steve believed they were inadmissible under Japanese law. It's possible that Japanese courts are becoming more lenient towards the "unknowing mule" but it could just be that the Swiss woman and this British guy had lawyers who made their excuses at the right time.

Interesting. I've always felt a bit sympathetic to Baker, who seems to come from a humble background and consequently didn't have the connections, or the right lawyers, to secure a more lenient conviction. Murderers in Japan often get the same 14 years Baker got, it seems.

-catone
-Bildermann! Let us know how you're doing!

[Mulboyne]

Japan Times: Held despite acquittal, now barred from re-entry, woman slams legal system

A Swiss woman who was detained by Japanese authorities for seven months after being acquitted of a drug charge expressed anger over the Japanese legal system in a recent written message to Kyodo News. "I was put under continuous detention because of shortfalls in Japanese law and alien policies," wrote Klaudia Zaberl. "I have been filled with despair and anger." Upon arriving in Japan from Malaysia as a tourist in October 2006, Zaberl, 29, was arrested for allegedly smuggling about 2.2 kg of amphetamines hidden in a suitcase into Narita airport. She denied the allegation, saying she was not aware the suitcase she had been handed by a stranger in return for money contained the drugs, but was later indicted. The Chiba District Court cleared Zaberl of the charge in August 2007, saying there was reasonable doubt she was aware of the drugs. However, following the ruling she was transferred to an immigration facility instead of being freed, as her visa had expired during her detention.

Prosecutors soon appealed the ruling and obtained court permission to detain her again to block her deportation. In April, the Tokyo High Court ruled that she was not guilty of the charges, leading prosecutors to drop the case. She returned to Switzerland later in April. Recalling the court decision to send her back to a detention center, Zaberl wrote: "At first, I could not understand at all what would be happening. I screamed to myself: 'This should not happen because I was given a not guilty ruling.' "Without the love of my family and friends, I would have gone into an eternal sleep," Zaberl wrote, referring to her state of mind during the high court hearings. "If I were Japanese, I could have been able to wait for trials and a ruling (at the high court) while being in freedom. Despite being found not guilty, I was deprived of freedom because I was a foreigner," she wrote. "One day, I want to visit Japan and have a good time," Zaberl said. She is barred from entering Japan for five years because of overstaying her visa.

[Behan]

A Swiss woman who was detained by Japanese authorities for seven months after being acquitted of a drug charge expressed anger over the Japanese legal system in a recent written message to Kyodo News.

The Chiba District Court cleared Zaberl of the charge in August 2007

...However, following the ruling she was transferred to an immigration facility instead of being freed, as her visa had expired during her detention.

Prosecutors soon appealed the ruling and obtained court permission to detain her again to block her deportation. ...

She is barred from entering Japan for five years because of overstaying her visa.

They detained her for overstaying her visa which expired while she was being held on charges that she was later found innocent of? That's insane. They should have charged the prosecutors with conspiracy to overstay a visa or something.

It makes you think this is a police state when you can be found innocent of a crime and yet still be incarcerated.

Oh well, she's only a gaijin.

Amneysty International should get onto these kinds of cases.

[IkemenTommy]

Amneysty International should get onto these kinds of cases.

Imagine what kind of PR damage that would cause for the already-defunct Japan Yokoso! campaign if Amnesty International was involved.

[alicia454]

Yes it is clearly unfair, and immigration should make an exception in her case or better yet change the policy to include all others with similar circumstances that prevent them from renewing, including those that are hospitalized.

But I am just curious as to why didn't she have her lawyer renew her visa during her incarceration? I have a lawyer handles the visas applications for myself and a co-worker, so it would not have difficult to do so and it would have saved her a lot of grief. I guess with the trauma of being falsely charged and incarcerated, it would be hard to think straight in that situation. I know that I would likely have fallen to pieces if it happened to me. But her defence lawyer should have know her visa situation and should have helped to renew it. That's what you pay them for!

[wuchan]

She was here on a 90 day tourist visa. I believe the only way to renew it is to LEAVE and come back a few weeks later. Somehow I don't think that the visa office would issue, or renew, a visa for a person in jail.

[Mike Oxlong]

So, they need a new category of visa...the "inmate" category.

[amdg]

So, they need a new category of visa...the "inmate" category.

Funny as it sounds, yeah they do. But you could call it a special circumstances extended visa, or a bridging visa or something similar.

If they prevent you from fulfilling your obligation to leave the country by a certain date, then the culpability is theirs.

However, I can't see this being an issue soon addressed.

[Mulboyne]

Imagine what kind of PR damage that would cause for the already-defunct Japan Yokoso! campaign if Amnesty International was involved.

Very little. Amnesty International is already involved with the more serious case of Govinda Prasad Mainali mentioned in the original post. They were campaigning for him even before he had his not guilty verdict overturned.

[wuchan]

Funny as it sounds, yeah they do. But you could call it a special circumstances extended visa, or a bridging visa or something similar.

If they prevent you from fulfilling your obligation to leave the country by a certain date, then the culpability is theirs.

However, I can't see this being an issue soon addressed.

They do??? What is it called? The bigger question is, how much money do you need to have to get lawyers good enough to get you one?

[amdg]

They do??? What is it called? The bigger question is, how much money do you need to have to get lawyers good enough to get you one?

No. They DO NEED one.