For months, Carlos Ghosn, the deposed chairman of Nissan Motor Co., has found himself caught up in the peculiarities of Japan’s criminal justice system. A suspect can be ordered held for questioning for up to 20 days without charge after the initial arrest — far longer than in most other developed countries. The suspect is allowed to seek bail only after being indicted, and even then, the person can be immediately re-arrested for questioning on suspicion of new charges. That restarts the clock in what is a very common practice. A judge has to approve every extension, but almost always does, and the cycle can go on indefinitely. Legal experts say this is all a strategy to secure a confession and make a trial easier. Critics question whether the system has sufficient safeguards to protect human rights. In 2017, less than 1 percent of cases in Japan’s district and county courts resulted in an acquittal or the defendant’s release.
1. Why was Ghosn arrested?
Initially, it was on suspicion of falsifying his salary from Nissan by tens of millions of dollars in company filings to regulators. He was later indicted on that charge for the five fiscal years through March 2015. A subsequent indictment covered the three subsequent years, bringing the total allegedly unreported to $80 million. Those charges were related to a relatively arcane accounting point: whether retirement payments were properly booked. But he currently is being investigated on a potentially more serious charge of aggravated breach of trust for allegedly trying to transfer millions of dollars in personal trading losses to Nissan from 2009-2012.
2. Is that all?
Nissan also has accused Ghosn of misusing company funds, including over the purchase of homes from Brazil to Lebanon and hiring his sister on an advisory contract. Those allegations aren’t part of the criminal case but could be added if prosecutors decide it’s warranted. Prosecutors in Japan routinely arrest suspects on suspicion of relatively minor charges, hold them for questioning and add charges as they go.
3. What does Ghosn say?
Ghosn denies any wrongdoing, according to his chief lawyer, Motonari Otsuru. He has said the Securities and Exchange Surveillance Commission looked into the alleged transfer of Ghosn’s personal investment losses to the company in 2008 and didn’t file criminal charges. The lawyers have also said the charges related to Ghosn’s pay are flawed. The length of his detention (he was arrested Nov. 19) and the lack of clarity surrounding the case have drawn criticism from abroad. (Ghosn, 64, holds French, Lebanese and Brazilian passports.)
4. What do people say about Japan’s legal system?
Japan’s postwar criminal justice system is based largely on continental European law, with some characteristics of the Anglo-American system. Some researchers see it as focused more on a just result than due process. Critics say lengthy detentions and interrogations with limited access to an attorney can lead to false confessions, such as the recent case of a woman released after 20 years in jail. The UN Committee Against Torture has expressed concerns. Amnesty International said in 2017 that it had “raised concerns about the lack of rules or regulations regarding interrogations” during pre-trial detentions. The Japan Federation of Bar Associations has called for reforms, including recording of interrogations. In response, the Japanese government has noted its system requires “strict judicial reviews at each stage” to balance the human rights of suspects with the needs of investigators.
5. What about bail?
Ghosn can apply for bail once the latest detention period ends, but only about 30 percent of such applications succeed, lawyers say. If he doesn’t get bail just after the indictment, he may get it after the first day of the trial or after important witnesses are heard. Often, defendants who fight the charges are refused bail on the grounds that they may destroy evidence, said Yuichi Kaido, part of a group at the Japan Federation of Bar Associations working on the issue.
6. What punishment could Ghosn be facing?
Both filing a false statement to regulators and breach of trust carries a potential 10 years of imprisonment and a maximum 10 million yen ($90,000) fine. Prosecutors could combine the charges into one or seek to combine them. Ghosn’s case will likely be handled by a panel of three judges because juries are convened only for certain types of cases such as murder or manslaughter. The average duration for three-judge trials is a little over 13 months, and the judges will likely announce their verdict and any sentence on the final day of trial.
7. Who else is charged?
Nissan also has been indicted for under-reporting Ghosn’s income. The company said it would strengthen its corporate governance and compliance and file amended financial statements once it has finalized the corrections. Former Nissan executive Greg Kelly — known as Ghosn’s gatekeeper and confidante — was indicted for allegedly helping him under-report income but released on bail Dec. 25. Kelly has denied the allegations through a lawyer.
8. Where’s Ghosn been?
Ghosn is being held at a 12-story detention house in northern Tokyo where daily life for detainees begins at 7 a.m. and lights go out at 9 p.m., according to an archived and undated pamphlet from the ministry. There are three meals a day, including rice, sides of meat and vegetables, and soup. The Tokyo site began operations in the early 1900s and moved to its current location in 1971. It is normally off-limits to the public but the grounds open every September for a festival, according to the Japan Visitor website. Visitors are able to sample prison fare and buy products made by inmates. The website said the festival attracts such large crowds that automakers display car models there for marketing purposes. The detention house is also where Japan executes some of its prisoners on death row. In July 2018, the leader of the Aum Shinrikyo doomsday cult — the group that carried out a deadly sarin gas attack on the Tokyo metro in 1995 — was executed, various media reported.
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