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Wednesday, June 20, 2012

If Mainali retrial fails, extradition not likely

Kyodo

The legal status in Japan of Govinda Prasad Mainali, a Nepalese man granted a retrial that is expected to clear him of the 1997 murder of a woman in Tokyo, remains obscure after he was freed from prison and deported home Friday.

News photo
Back home: Govinda Prasad Mainali, a Nepalese man granted a retrial over the 1997 murder of a woman in Tokyo, hugs his mother after arriving at Katmandu airport Saturday. KYODO

Even if the court reverses its decision for a retrial — prosecutors have appealed — the 45-year-old Mainali would probably not be sent back because Japan and Nepal do not have an extradition treaty.

The Tokyo High Court decided June 14 to reopen the murder case, citing a DNA test conducted last year that indicated another man was at the crime scene. The court suspended Mainali's sentence 15 years after his arrest in 1997. Prosecutors had pursued Mainali even after he was acquitted at his first trial.

In addition to filing an appeal against a retrial, the prosecutors also sought to repeal the suspension of his sentence. The high court decided to let the suspension stand.

Mainali was released from prison but was immediately placed in immigration custody because he was convicted May 20, 1997, of overstaying his visa. That ruling came on the same day he was arrested for the murder.

If a retrial is held and he is acquitted, all subsequent legal proceedings will likely be conducted without his presence in Japan. He will be eligible for criminal compensation, but a lawyer can serve as his proxy to start the proceedings for claiming damages. There will be no need for him to visit Japan again.

The objection against the high court's June 14 decision for a retrial has been passed on to an appeals panel. The prevailing view among legal experts is that new evidence is unlikely to emerge to reverse the court's decision to reopen the case.

If, however, the decision for a retrial and that for the halt of his sentence are both revoked, law enforcement authorities will seek to imprison Mainali again.

Because of the absence of an extradition treaty, even if the government requests Mainali's extradition via diplomatic channels, Katmandu will most likely not respond.

"Japan, if placed in the reverse position, would not send one of its own citizens (to another country)," a source at the Justice Ministry said about typical procedures in the absence of an extradition treaty.

There have been many instances where foreign nationals have been deported, or allowed to leave Japan at their own expense, immediately after they were convicted but given a suspended sentence in the trial of first instance.

Even if a higher court subsequently renders a sentence that requires imprisonment, they will effectively remain free as sending them to prison is impractical.

"The suspension of the sentence this time might look like a unique case because it comes along with a decision to start a retrial, but the suspension of a sentence itself is not uncommon," Osaka University Law School professor Norio Mizutani said. "So long as the decision is made, there are no legal grounds to stop Mr. Mainali from exiting the country."

For Mainali, who has throughout pleaded not guilty to the murder, a retrial is supposed to be a stage to clear his name, but there is no legal obligation for him to appear before the high court when the trial reopens.

In principle, he will also be denied re-entry to Japan because he has been deported.

Should he still wish to come, he will need special permission to re-enter at the justice minister's discretion.

In the event he is acquitted in the retrial, proceedings for criminal indemnity can be started by a proxy. A court will be tasked with computing such damages, limiting them to a maximum ¥12,500 per day. He was detained and imprisoned for roughly 15 years.

The government paid approximately ¥80 million to Toshikazu Kasuga, who was acquitted in 2010 in a retrial over the 1990 murder. He was held for 17½ years.



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