In addition to the politics of alliances of industrial „national champions“, the case of Carlos Ghosn has again shed light on the Japanese criminal justice system. So much so, that the UN Working Group on Arbitrary Detention has issued a report in which it condemns the legal and executive practices used by prosecutors in the Ghosn-case. The fact that the UN is weighing in also stresses the high-profile nature of the case itself and its international relevance.
A Comment by Lars Feyen and Paul Guthmann
Part 2: The legal side
Part 1: The business side was published on 6 May
To analyse the various legal dimensions and implications of the Ghosn affair, it might thus be helpful to focus on some of the main accusations that Ghosn presented during his multilingual press conference in Beirut after escaping from Japan in January 2020. He claims to have been the victim of a conspiracy against his person. His alleged aides, Greg Kelly and Michael Taylor, accuse Japan of “hostage justice” due to its prolonged detention practices that aim at extracting a confession from the accused. Ghosn further alleges the involvement of both executives at Nissan but also Japanese government officials in this conspiracy plot. In his words, he did not escape justice, but fled injustice.
The international perspective
In its report on the case, the UN Working Group on Arbitrary Detention built on long-standing criticism of Japan’s criminal justice system and stated that Ghosn’s rights – as laid out in the International Covenant on Civil and Political Rights (ICCPR) which Japan ratified, were violated with regards to Category I (lack of a legal basis of deprivation of liberty) and Category III (grave violation of the right to fair trial, giving the deprivation of liberty arbitrary character) of the Working Group. In customary understanding of the ICCPR, the accused should be brought before a judge “promptly” to review the legal basis of pretrial detention (Art 9 III ICCPR).
Additionally, every accused should have the right to challenge pretrial detention immediately after the arrest (Art 9 IV ICCPR). Generally, pretrial detention should thus be an exception rather than the norm. During pretrial detention in Japan, it is also impossible to request bail or other alternatives to pretrial detention. By repeatedly releasing and immediately re-arresting Ghosn on different charges, the prosecutors prolonged pretrial detention, effectively arresting Ghosn four times and only bringing him before a trial at the end of subsequent periods of detention. Building on Ghosn’s own testimony, the Working Group ruled the pretrial detention of Carlos Ghosn to be in violation of Art 9 III and Art 9 IV ICCPR and a Category I violation, as he was not afforded the right to challenge his detention and was not promptly charged.
Furthermore, the Working Group contended that the repeated arrests of Carlos Ghosn constituted a Category III violation. In dividing the charge of under-reporting earnings into two time periods, the prosecutors used a legal construct to allow for a repeated detention of Ghosn (the first two arrests were based on these charges). Furthermore, a court ruling by a Tokyo court that prohibited the prolongation of detention by splitting sentences on 20 December 2018, was circumvented by another release and rearrest of Ghosn the following day (later charged with a different offense).
The Working Group considered the statements made by Ghosn that he was put under severe psychological pressure to force a confession as credible prima facie evidence for a violation of Art 14 II ICCPR (presumption of innocence) and Art 14 III (g) ICCPR (right not to be compelled to testify against himself or confess guilt), leaving the burden of proof to the Japanese government which has as of now not provided evidence to the contrary. Thirdly, Ghosn accused the Japanese officials of restricting his access to legal counsel by initially allowing only supervised 30-minute conversations, thus violating his right to appropriate legal counsel (Art 14 III (b)).
The Working Group further does not rule out the possibility that the sensationalist coverage of Ghosn’s fourth arrest by the media (on 4 April 2019) could constitute a further violation of the presumption of innocence. Ghosn accuses the prosecutors of leaking information to the media before arresting him, the Japanese government has denied the charges. Notwithstanding the final contested claim, the Working Group ruled the violations of the right to fair trial to be of such gravity as to constitute a Category III violation. In reinforcing Ghosn’s position, the Working Group echoed two common Western criticisms of the Japanese criminal justice system, the first regarding the 23-day pretrial detention, the second regarding the supposedly harsh conditions and the psychological pressure to force confessions.
In early 2021, the critique of the Japanese criminal justice system also reached U.S. courts. After their return to the U.S. (which has an extradition agreement with Japan), the Taylors, who helped to facilitate Ghosn’s escape, were arrested on an extradition request from Japan and tried in a district court in Massachusetts. In this case, however, the judge ruled that “although prison conditions in Japan may be deplorable and […] may not satisfy American notions of due process, those allegations do not constitute the `severe physical or mental pain or suffering´ contemplated by the enacting regulations.”
Thus, the district court ruled that an extradition of the Taylors to Japan was legal and possible. Subsequently, the case went to the U.S. Supreme Court. In February 2021, Justice Breyer greenlighted the extradition of the Taylors to Japan. This separate case of the Taylors and other collaborators offers us additional insights into the cross-cultural legal minefield that the courts are navigating. That the ripples of the Ghosn case have now even reached the SCOTUS further stresses its international dimension and the ongoing relevance of the legal debates around the Japanese judicial system.
In addition to the critique voiced by the UN, Ghosn and the Taylors, scholars in Europe and the U.S. have highlighted flaws in Japan’s judicial system more broadly. Specifically, scholarly criticism addresses the police detention practices, the bail system, and the high conviction rate of over 99 percent once a case is brought to court. These are, in essence, findings that coincide with the outside opinions of the Ghosn affair. Nevertheless, given the differences between legal systems and the language barriers, a comparison between, say the U.S. system and the Japanese system, is not as trivial as one might think.
In exploring these lines of criticism from a deeper and historical perspective, the explanations presented below will focus strictly on the criticism (advanced inter alia by Ghosn) of the system and not address the substance of the crimes he has been accused of or the alleged conspiracy as it is difficult to establish the merits of these claims.
“It will get worse for you if you don’t just confess”, the prosecutor told me repeatedly” (Carlos Ghosn Press Conference, Euronews 2020)
The issue of the so-called Japanese “hostage justice” has been called out over the past decades. Such criticism has focused mainly on the period of time that suspects in criminal cases can be held by prosecutors and subjected to interrogations without legal counsel. Indeed, the right to have a defense counsel present during interrogation is only granted once charges are officially filed.
It is apparent that Japan fares rather badly in comparison with most other developed nations on this issue. While the European Union recommends law enforcement agencies in its member states hold a suspect no longer than two days before either releasing the suspect or filing official charges, the number of days is significantly higher in the Asia-Pacific. Australian investigators can hold suspects for up to twelve days, South Korean ones for a maximum of twenty days. Japan leads all OECD countries with a limit of 23 days.
This limit appears problematic, since it can sometimes be used for continuous detention without charges, as is also reflected in the UN report on the Ghosn case. In the case at hand, Carlos Ghosn was thus further detained before a trial was set to start. While critics of the system do not consider the time frame itself to be a violation of human rights, in their opinion the prolonged duration offers more opportunities for investigators to abuse human rights through extended and repetitive interrogations. There are several other examples of foreign nationals that were targeted by Japanese prosecutors and that have described their ordeals going through the alleged abuses they experienced while in police custody.
Commentators in the Japanese media, such as lawyer and politician Yoneyama Ryuichi, recommend changes to the system. If the police confiscate all relevant evidence in a case and restrict the suspect’s interaction with possible collaborators, there is in Yoneyama’s opinion no reason for further detention because a suspect is not willing to confess. Other legal experts, such as criminal law scholar Wang Yunhai, consider the international criticism “unreasonable”. Talking to conservative daily Mainichi Shimbun, he cited similar standard proceedings in the French legal system.
According to him, some preliminary investigations in France could take up to four years, leaving the accused under similar conditions as in Japan. Additionally, says Wang, hygiene and food in Japanese prisons were really not that bad. He, on the other hand, also demanded significant changes allowing for the presence of a defense counsel during interrogations.
Reliance on confession and the issue of bail
The problem might arguably be exacerbated by the typical structure of a Japanese criminal investigation. For several institutional reasons, prosecutors rely almost exclusively on confessions as evidence in court. Only if a suspected criminal confesses their guilt will their case be brought before a judge. Unlike other jurisdictions in the West, in Japan a case stands and falls with the prosecutor’s ability to get the subject to incriminate themselves before the trial.
Another issue is the bail system in Japan. Bail can only be granted by a court once an indictment takes place. Ghosn was denied such leniency, as it is within the discretion of the court to do so. Such a decision, according to the law, must be based either on serious charges against a defendant which could justify either death penalty or prison terms of more than ten years. Bail is also denied when there is probable cause to believe an accused might flee.
High conviction rate
However, while the reliance on a confession and the length of police detention without the filing of charges is a problem in the Japanese criminal justice system, another criticism might be missing the point. Many critics denounce Japan’s high conviction rate of over 99 percent and would like to see it as evidence that Japan has no “rule of law”, which is a foundation for a free and open democracy.
The high conviction rate, however, needs to be put into the context of Japanese legal practices. As a handful of quantitative studies over the past decades made clear, Japanese prosecutors only file charges when they have what is commonly known as “waterproof evidence”. Cases in which the prosecution cannot preemptively prove the guilt of an accused beyond reasonable doubt do almost never end up in court. Johnson calls this a “strategic use of leniency”. By that he means that in international comparison Japanese prosecutors tend to drop charges more readily than their counterparts in other jurisdictions. Prosecutors in EU countries or the US have to fear less repercussions if a case they brought before a court ends in acquittal.
For Japanese prosecutors, on the other hand, such a not-guilty verdict can have serious consequences for their career path. They need to account for the undesired outcome, and if the acquittal is considered the result of a “mistake,” the responsible person is unofficially rebuked by superiors and assignments received thereafter may reflect the error. At the same time, the practice of “collective deliberation” over case dispositions targets and eliminates acquittal-risky cases. Thus, case selection seems to be an important factor contributing to the seemingly high conviction rate, which in reality is closer to Western democracies if compared by the same parameters.
Would it not be better to open ways for prosecutors to indict defendants even if there is a chance that they might be found innocent in court? There are voices that support changes in that direction. In a healthy legal system, such cases could help to change practices and allow for new interpretations.
No rule of law?
Many observers, too, have claimed that there is no such thing as “the rule of law” in Japan. This assertion calls for a well-founded rebuke. First, historians focusing on Japanese legal traditions have come to the conclusion that the modern legal system resembling the West was not introduced into a pure vacuum. Tokugawa Japan and even earlier periods had strong legal structures based on both Chinese legal concepts and Buddhist thought imported from India and other parts of Asia. The modern criminal justice system was introduced to Japan during the early decades of modernisation after 1869.
Japanese administrators were keen to adapt laws from France, as French legal tradition relied mostly on the idea of natural law. Japanese officials saw thus the possibility to establish a legal framework that ignored factors like race. They subsequently, however, turned their attention to German law. Legal scholars in Japan admired the Prussian state for its ability to combine modernity with an authoritarian streak that could also be used to cement the reestablished imperial order in Japan. The Japanese Penal Code of 1907, still used today after several revisions, is in part a relic of that phase.
Second, these centuries of Asian and European legal imports have to be seen in a specifically Japanese context that has evolved its own legal practices over time. As Steenstrup puts it, there has never been a revolution of public order, but rather a sometimes “rapidly changing continuity of practices”. One of these practices could be highlighted by the way in which state prosecutors go about indicting alleged perpetrators, based on the chance of success in court.
Criticism of Japan’s high conviction rate is thus not completely unfounded, but certainly exaggerated. Such claims allow for the dangerous assertion that there was no rule of law in the country. Western legal systems might not have the exact institutional issues, but they certainly are not free from substantiated criticism and historical inconsistencies either. Aronson and Johnson even argue that the Ghosn case could have fared similarly in the U.S. criminal justice system.
Other criticisms, such as prolonged interrogations and the absence of legal counsel during early phases, appear more valid and should allow for improvement in the Japanese criminal justice system. This has been recognised by scholars and legal observers in Japan as well. It should be remembered that there are quite a few disagreements among Western countries about what the “rule of law” exactly means. As demonstrated above, a consistent approach could also put the US legal system under scrutiny and at the same time does not dismiss issues that European democracies face.
As the dismissive approach of U.S. courts in this affair has shown, American judges have shown a certain trust in Japan’s criminal justice system. They acknowledge the need for due process for U.S. citizens abroad but display no fears regarding Japan’s commitments to a fair process. While the Ghosn case has raised controversies in France and the UN, a less sensationalist perspective should be maintained in Europe as well.
The Ghosn case thus presents a twofold conundrum
On the one hand, there is the industrial background of the Renault-Nissan-Mitsubishi alliance which Ghosn contends was the reason for his downfall. While this question will remain unresolved, the case indeed sheds light on the inner workings of the industry and its political dimension. More important, however, is the legal aftermath of the case. With a plethora of responses from various actors (the UN, SCOTUS, Ghosn himself, legal scholars), the case has reinvigorated a polarised debate on the Japanese judicial system. While some criticism is certainly justified, this debate also highlights potential Western biases.
Nevertheless, Carlos Ghosn’s escape might constitute less of an issue for the criminal justice system in Japan, despite the embarrassment endured by Japanese law enforcement and prosecutors. The upset might arguably be bigger for human rights campaigners that have fought for decades to reform Japanese criminal trials and the bail system. Ghosn’s escape while out on bail will raise the stakes for courts to grant such a leniency in future cases. Not every defendant has the vast financial resources of an international top manager; nor a network of personal contacts allowing for a James Bond-esque escape smuggled into their private jets and then heading to one of the three countries where they hold citizenship, for that matter.
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Paul is a student of International Relations with a focus on East Asia. He graduated from King’s College London in the field of Conflict Studies. His research interests include Japanese foreign policy, East Asian regional disputes and US foreign policy. Paul has been involved with the Connecting Asia programme since late 2020.
Lars has studied International Relations and Romance Languages in Erfurt and East Asian Studies in Groningen. He also spent one year studying at Sophia University in Tokyo and worked in audio journalism. He currently writes a weekly newsletter called Ausblick Ost about East Asian politics on Substack. Interested in the intersection of public law, policy decisions and history, Lars has been involved with Connecting Asia since late 2020.