Opinion brief

Procedural attorney for the plaintiffs

Kodama Koichi

1. Introduction

First of all, I am greatly appreciative for the opportunity to speak here on behalf of the plaintiffs today regarding the significance of this court case.

2. Violation of plaintiffs’ right to stand trial

I stand here today to call for responsibility to be taken for the heavy-handed way in which the plaintiffs of this case were deprived of their right to stand trial.

I have been a registered lawyer for thirteen years, during which time I have advised countless numbers of foreigners (as well as their families and close supporters) regarding matters of compulsory departure orders and special resident permission. I have also continued to share information with many legal colleagues involved with similar cases, as well as with staff from NGOs that are actively supporting foreigners.

In all of my years of practice, however, this case stands out as one that has been absolutely excessive in terms of the level of court enforcement applied.

The standard practice for issuing compulsory departure orders, for example, most certainly does not involve immediate expulsion from the country at the government’s expense, as was the case for these plaintiffs. Even in cases where people who have received suspended sentences for overstaying visas wish to return home right away at their own expense, it is still normally necessary to spend about one week in an immigration detention facility while logistics such as airline reservations and tickets are sorted out. Those who intend to initiate court proceedings and thus who do not intend to return home immediately, as well as those who do not have the funds to arrange for their return flight home, usually first undergo a period of stay at the Tokyo Immigration Bureau in Shinagawa, and are then transferred to the immigration center in the town of Ushiku, Ibaraki prefecture, which can accommodate longer stays.

In the present case, eight Bangladeshi nationals (including the six plaintiffs in this case) were sent home via a Biman Airlines flight that had been prearranged by the government only four-and-a-half hours following the issuance of a compulsory departure order, which was announced at 7 a.m. on January 21, 2005. Because this coincided with a Bangladeshi festival, meaning that flights were extremely crowded around this time, it is clear that this forcible, no-questions-asked departure was planned out well in advance. We were able to witness a video that records the events that occurred preceding this suit, from the time that the compulsory departure order was issued until the plaintiffs boarded the airplane, which has served as perpetuating evidence. After being told that their request for special resident permission had been denied, the plaintiffs were then given the shocking and completely unexpected order to return to their country immediately. At this time, some of the plaintiffs clearly expressed their desire to contact a lawyer or Mr. Yoshinari from their APFS support group. They were denied permission to do so, however, and were given excuses such as the fact that the decision was final, or that there was no time for such calls to be made, etc.

Despite the fact that these plaintiffs had spent over ten years living amongst Japanese society and working hard, the immigration bureau did not even see fit to provide them with the opportunity to say goodbye to their friends and colleagues.

Research reveals that the only other time a harsh incident of this nature occurred was in 1968, when a Taiwanese national involved in the Taiwanese independence movement went to renew their period of provisional release at 4 p.m., and was sent back to Taiwan at 9:40 a.m. the following morning. Even in this case, however, the immigration authorities contacted that person’s guarantor about two hours after that person was taken into custody, and that person was able to meet with the director of the immigration bureau from the Ministry of Justice that evening. That person was also able to petition for stay of execution at 8 a.m. the following morning, when contact was made with the immigration bureau from the courthouse.

In the present case, however, the plaintiffs were forcibly repatriated without any such opportunity.

Had they been able to petition for a stay of execution regarding the compulsory departure order, past precedent shows that in nearly every case, “emergency necessities in order to avoid damages that impair recovery” (Article 25, paragraph 2 of the former administrative litigation law) are granted, since the geographical and physical barriers to being able to stand trial are enormous after returning to one’s home country.

Due to the circumstances of the present case, therefore, these plaintiffs have been effectively deprived of their ability to stand trial?the illegality of which is plain for anyone to see.

3. Needless use of handcuffs, and inhumane, undignified treatment

In addition to the above, immigration authorities also took the appalling step of handcuffing the plaintiffs despite the fact that they offered no resistance whatsoever.

According to the rules for the treatment of inmates decreed by the Ministry of Justice, restraint instruments such as handcuffs are only to be used in cases whereby there exists a threat of harm to self or others, or where someone is likely to cause damage or attempt to escape.

Moreover, a document wherein the Japanese government describes its adherence to a torture prevention treaty states the following: “Restraints such as handcuffs will only be used in cases whereby inmates are likely to escape or commit violence. They will only be used to the minimum extent necessary, and when no other preventative means are available.”

Despite the fact that one glance at the video from this case makes it immediately obvious that these plaintiffs display none of these characteristics whatsoever, they were nevertheless chained together with handcuffs as if they were criminals.

On top of being exposed to one another in such an undignified manner, then, they were also forced to use the toilet in the presence of all of the others. We find this type of inhumane treatment to be absolutely unacceptable.

4. Personal responsibility of Sakanaka Hidenori

We have decided to hold Sakanaka Hidenori, the Tokyo Immigration Bureau Chief at the time, to be personally responsible for our claim against the state in this case.

Granted, it is not standard procedure to hold civil servants personally liable for infringements of the law committed while on duty.

Given the fact, however, that only three days prior to this case Mr. Sakanaka also immediately and forcibly repatriated a group of Kurdish nationals who had been given refugee status by the Office of the United Nations High Commissioner for Refugees, it is clear that he is intentionally working to consistently deprive plaintiffs of their right to stand trial. In this case, we feel it is appropriate to hold him personally liable.

The National Redress Law also maintains the principle of reciprocity, whereby which, for example, if a Japanese national was harmed in someway by a public official in Bangladesh but was unable to claim redress from the Bangladeshi government because no such regulation existed, then the Japanese government would take no responsibility even in an instance whereby a Japanese immigration official beat a Bangladeshi to death.

While this law seems to make no sense at all, if it is applied in this case, then the government will end up taking no responsibility whatsoever. Returning to the basic principle whereby someone should take responsibility for a crime being committed, then, we have decided to hold Mr. Sakanaka responsible.

5. Conclusion

The plaintiffs in this case committed no crime beyond that of overstaying their visas, and showed up of their own will in order to request special resident permission. Despite these facts, however, they were immediately taken into custody and handcuffed like criminals before being sent back to their country?and were not even permitted to say goodbye to their friends or to organize their belongings.

It is completely incomprehensible why these plaintiffs were singled out for such treatment, and we urge the court to award suitable compensation to the plaintiffs for the shameful way in which they were treated by the immigration bureau and Mr. Sakanaka.