The family of a Nepalese man who died in police custody in Tokyo was awarded 1 million yen ($7,150) in damages, an amount experts say highlights the discriminatory nature of the State Redress Law.

The redress law contains a “reciprocity provision,” meaning that such compensation cases involving foreign victims can depend largely on how their home countries would treat Japanese nationals in similar situations.

The Tokyo District Court’s ruling in March awarded the amount based on the compensation rules. But legal experts said the ruling was likely not only unprecedented but could have also violated the Constitution.

‘CRUSH SYNDROME’ IN CUSTODY

Shin Arjun Bahadur, 39, was arrested in 2017 by officers from the Metropolitan Police Department’s Shinjuku Police Station on suspicion of stealing lost property. He was found carrying someone else’s credit card.

A day after his arrest, Bahadur was placed in a protection room because of his disorderly behavior, police said.

He was restrained for about two hours, with his wrists and legs shackled with a nylon handcuff belt and other equipment. He lost consciousness and died.

His widow living in Nepal filed a civil lawsuit against the central and Tokyo metropolitan governments in 2018, seeking 61.82 million yen in damages.

The Tokyo District Court in March this year ruled that prolonged and intense pressure of the restraints on Bahadur caused “crush syndrome,” which led to kidney failure and other symptoms.

The court noted that police officers saw that Bahadur’s hands had become swollen and reddish black. The court also said Bahadur’s death could have been avoided if police had immediately taken him to a hospital.

Acknowledging the illegality of the police actions, the court ordered the metropolitan government to pay 1 million yen in compensation to the bereaved family.

The amount could have been tens of millions of yen for lost future earnings and consolation money if Bahadur had been a Japanese national.

‘IRRATIONAL AND DISCRIMINATORY’

Under the State Redress Law, the central and local governments are liable for compensation if unlawful actions of public servants cause damage to people.

But if the victim is a foreign national, his or her home country’s relations with Japan can determine whether a court will even hear the lawsuit.

The law does not cover foreign victims whose home countries do not allow Japanese nationals to claim compensation for damages caused by illegal civil servant activity in those nations.

The law’s provision is based on the “principle of reciprocity.”

Essentially, the idea is that Japan does not need to help people from a foreign country that does not help Japanese nationals.

Citizens of the United States, Britain, China, South Korea and other nations that “help Japanese victims” have the right to claim compensation under the State Redress Law.

Nepal has a law that requires the government to pay compensation for pain and suffering of detained individuals caused by public officials.

The Tokyo District Court ruled that the State Redress Law could be applied for Bahadur’s death because Nepal’s law is also applicable to foreign nationals, such as Japanese.

But the redress amount in Nepal is capped at 100,000 rupees (about $710) based on a fixed-rate compensation system under the law.

In the lawsuit, the metropolitan government claimed that this upper limit should be enough to compensate for Bahadur’s death.

However, the family’s lawyers had sought an unlimited amount, citing several cases in Nepal that exceeded the limit.

In one case, Nepal’s Supreme Court ordered the government to pay 200,000 rupees in damages. In some other cases, the Nepalese government paid 1 million rupees to a victim at the recommendation of Parliament.

The Tokyo court ruling said Japanese victims in countries like Nepal, with compensation fixed at a rate considerably lower than that of Japan, would receive less redress than what they could get in Japan.

Therefore, the court said it would be fair in Bahadur’s case to limit Japan’s compensation liability within the scope of the fixed-rate system in Nepal.

The court concluded that a sum of 1 million rupees was acceptable as the maximum compensation amount, citing precedents in Nepal that paid 1 million rupees.

The bereaved family has appealed the ruling.

Ryutaro Ogawa, one of the lawyers representing the family, said it is a “dangerous ruling that could create a hotbed of discrimination.”

“It is irrational from the standpoint of international human rights protection to reduce the compensation amount to an extremely low level because of the victim’s nationality,” Ogawa said. “Such irrationality is especially true when the ruling acknowledged that Bahadur’s death was caused by illegal actions committed by public officials.

“We want to contest the constitutionality (of the ruling).”

‘UNSUITABLE’ FOR ADVANCED NATION

Rikako Watai, a professor of administrative law at Keio University Law School, said the ruling could be unprecedented.

“What is usually brought into question (in lawsuits involving foreign victims) is whether the principle of reciprocity is established,” Watai said. “I think there are almost no precedents that raised the question of whether the compensation amount should be limited based on the laws of a foreign country.”

In two lawsuits filed in Kyoto and Nagoya nearly 50 years ago, South Korea’s state compensation law became a point of contention.

Although South Korea had fixed-rate compensation rules, the rulings in both lawsuits steered clear of setting an upper limit.

As for the Tokyo District Court ruling, Watai said that compensation totals exceeding the fixed amount stipulated under law have been paid in Nepal, while conditions for such payments have not been shown in the country.

“If that’s the case, I think there was no need to grant compensation in a fixed amount,” she said.

The professor noted with the increasing number of foreign nationals living in Japan, similar problems could occur in the future.

“We must gain a deeper understanding and re-examine the principle of reciprocity,” Watai said.

Article 17 of the Constitution states, “Every person may sue for redress as provided by law from the State or a public entity, in case he has suffered damage through illegal act of any public official.”

However, the State Redress Law imposes certain limits on non-Japanese people.

Masanori Okada, a professor of administrative law at Waseda University, said he was surprised by the ruling.

He said the court strictly applied the principle of reciprocity to calculate the compensation amount even after the principle has been criticized as inconsistent with the Constitution.

He said the ruling could force foreign victims seeking state compensation in Japan to research and show how much compensation Japanese nationals could receive in similar cases in the plaintiffs' home countries.

“It would impose an excessive burden on victims,” Okada said. “It could also lead to the exclusion of foreign nationals, which would contradict the purpose of Article 17 of the Constitution, which holds the state responsible for compensation also for foreign nationals. This is not a measure an advanced nation should take.”