The dramatic escape of Nissan’s former CEO tests Japanese Criminal Justice System

by Teppei Ono, Secretary-General, Center for Prisoners’ Rights Japan

With the world wondering if the Olympics will go ahead in Tokyo this summer, due to the impact of Coronavirus, Japan has found itself in the spotlight for a very different reason in recent months.  The country’s criminal justice system hit the headlines towards the end of 2019 when the former boss of Nissan, Carlos Ghosn, was indicted for falsifying financial reports and subsequently fled the country to Lebanon.  He immediately went on the offensive, alleging draconian criminal justice procedures, lengthy pre-charge detention periods and repeated interrogations.

Ghosn had been released on bail, on 25 April 2019 after a total detention of 129 days and total bail bond of 1.5 billion yen ($13.6 million).  His escape from Japan was a clear breach of his bail conditions which included a prohibition on overseas travel.  Ghosn held a press conference in Beirut on 8 January 2020, in which he stated that Japan’s legal system violates ‘the most basic principles of humanity’.  In response, Justice Minister Ms. Masako Mori held a press conference at midnight on the same day, commenting, “[H]e has been propagating both within Japan and internationally false information about Japan’s legal system and its practice.  That is absolutely intolerable”.  Much of the Japanese media criticised his escape as a ‘cowardly act’. Some have attacked his defence counsel and the court, which applied for and permitted bail.

Carlos_Ghosn

Carlos Ghosn’s escape tests the Japanese Government’s approach towards criminal justice, which has long avoided any dialogue with the international community.  This article looks back at how the Japanese Government has responded to advice from the international community and how the former Nissan chief’s case proceeded.

The coming years will be significant for Japanese criminal justice, as the United Nations Crime Congress, the largest UN conference in the field of crime prevention and criminal justice, will be held in Kyoto, Japan.  The conference was initially scheduled for April 2020 but has been reportedly postponed at the time of writing, due to the outbreak of Coronavirus.  In recent months, the Japanese criminal justice system has been attracting unprecedented attention from the international community.

 

Being proud of a ‘medieval’ legal system?

Japan’s ‘Hostage Justice’ system, in which suspects can be held for a long period of time (a maximum of 23 days) in harsh conditions, without the presence of defence counsel, has been internationally criticised.  The UN Human Rights Committee (HRC) and the Committee against Torture (CAT) have repeatedly expressed their concerns over the excessive reliance on custodial interrogations.  Their recommendations include that Japan guarantee the right to have a lawyer present during interrogations, and introduce legislative measures setting strict limits on the duration and methods of interrogation.  Nevertheless, investigating authorities have not implemented the recommendations, still relying heavily on interrogations and confessions, despite recent criminal justice reform.

Ministry of Justice Japan

Ministry of Justice Japan

The clinging of the authorities to established practices brings to mind a scene at the CAT panel review of Japan on 21 May 2013 in Geneva.  The video footage of the incident went viral.  The Committee members had raised a number of issues, such as suspects’ access to defence counsel and time limits on detention, which the Japanese delegation continued to brush off.  This then led a committee member to describe Japan’s legal system as ‘medieval’.  In rebuttal, Mr Hideaki Ueda, Japan’s Human Rights Envoy to the UN said, “Certainly Japan is not in the middle age. We are one of the most advanced countries in this field”.  His comment provoked laughter among the committee members, which prompted a furious response from the ambassador in which he shouted “Why are you laughing? Shut up! Shut up!”, surprising both the committee members and the audience. He asserted his pride in a legal system that relies heavily on interrogations and coerced confessions, and in a series of statements published on the Ministry of Justice website after Ghosn’s escape, it appears that little has changed.

 

How did Ghosn’s case play out in Japan?

Carlos Ghosn was arrested for the first time on 19 November 2018. He was then interrogated until his indictment on 11 January 2019.  According to his former defence counsel, with the exception of one day, he was interrogated every day from 19 November to 11 January, with each interrogation lasting anything up to 11 hours.  During this period, he was arrested three times and his detention was repeatedly extended.

After three requests, the court finally granted bail and set the bond at one billion yen with 10 bail conditions.  These bail conditions included, but were not limited to setting surveillance cameras at the entrances to his residence, staying at one of his defence counsel’s offices from 9:00 am till 5:00 pm on weekdays, reporting all phone calls and visitors to the court, and a prohibition of contact with related persons.  The former CEO was then released after 106 days of confinement at Tokyo Detention House on 6 March 2019.

The investigating authority, however, re-arrested him one month later for aggravated breach of trust.  Once again, the investigating authority began harsh interrogations.  From the 5th until the 21st April, the prosecutors interrogated Ghosn, his defence counsel keeping a record of all events on his blog.  His counsel expressed strong opposition to the daily interrogations but was ignored. Following an indictment for breach of trust on 22nd April, the defence counsel filed a petition for bail.

The court granted bail on conditions similar to those of the previous bail but this time with a prohibition of contact with his wife, because the judge considered her to be related to the charge.  The former Nissan CEO was released again after posting another 500 million yen on the 25th of April. The defence team filed an appeal to the bail condition prohibiting the defendant’s contact with his wife, as a violation of article 17 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees that no one shall be subject to arbitrary interference with family.  The Tokyo District Court and the Supreme Court, however, turned down the appeal without any mention of the ICCPR.

After fleeing Japan, Carlos Ghosn issued the following statement: “I am now in Lebanon and will no longer be held hostage by a rigged Japanese justice system where guilt is presumed, discrimination is rampant and basic human rights are denied in a flagrant disregard of Japan’s legal obligations under international law and treaties it is bound to uphold”.

 

Japanese Government’s response to the escape

In a series of statements made by the Justice Minister in the immediate aftermath of Ghosn’s escape, she said, “Japan’s criminal justice system sets out appropriate procedures and is administered properly to clarify the truth in cases, while guaranteeing basic individual human rights. Each nation’s criminal justice system has its roots in its history and culture, being formulated and developed over a long period of time. Therefore, there is no superiority or inferiority among legal systems of different countries”. Her comments reflect the Government’s stance in dismissing the recommendations of international bodies such as the UNHRC.

Masako Mori press conf

A history of wrongful convictions in Japan tells us that prolonged interrogations have the effect of mentally exhausting suspects and forcing their confessions.  Protracted interrogations, such as those used against Carlos Ghosn, potentially threaten the right to remain silent, which is why UN treaty bodies recommend the Government guarantee a right to have a lawyer present during interrogations and set strict time limits.  Despite the framework laid out in International Law, the Government has remained deaf to advice from the international community.  The Justice Minister was also forced to back-track on comments she made at a press conference that Carlos Ghosn should come to Japan to “prove his innocence”, turning the ‘presumption of innocence’ on its head.  She later clarified the statement by saying she meant to say he should ‘assert’ rather than ‘prove’ his innocence.

The Justice Minister has since promised to deal with his escape and is working closely with the relevant countries, International Organisations and other stakeholders in order to fulfil this promise.  If the Government is sincere in asking for cooperation from the international community, they surely need to be sincere in following up on international recommendations.   Japan’s human rights status will be reviewed at the UNHRC’s reporting procedure in October.  Let’s hope that the Japanese Government have learned from their rather undiplomatic outburst in 2013, to listen carefully to any recommendations and consider them seriously.

ABOUT THE AUTHOR

Teppei_Ono_photo

Teppei Ono is a staff lawyer at the Japan Legal Support Center.  His main area of practice is prison law, criminal defence, immigration/refugee law and legal aid.  He has served as Secretary General of the Center for Prisoners’ Rights Japan since 2019.

HIGHLIGHTS OF THE 166TH PERIOD OF SESSIONS OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

By Paola Limón

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Paola Limón, Senior Research Officer at the Human Rights Centre/School of Law of the University of Essex, was present at the 166th Period of Sessions of the Inter-American Commission on Human Rights (IACHR) as part of the research activities under the ESRC-funded Human Rights Law Implementation Project (HRLIP). The blog refers to the two main public activities that took place during these sessions: the Forum of the Inter-American Human Rights System and the IACHR’s public thematic hearings. At both these activities, domestic implementation of international human rights obligations came across as a central concern for all relevant actors, with the HRLIP presenting its preliminary findings on this matter in relation to Canada.

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