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The 99.9%: Japan’s justice system under scrutiny after Ghosn arrest

Issei Kato, Reuters | The Tokyo Detention Centre, where Nissan's arrested chairman Carlos Ghosn is being held, in Tokyo, pictured on November 30, 2018.

The shock arrest and prolonged detention of former Nissan chief Carlos Ghosn, who was indicted on December 10 after being held for three weeks without charge, have sparked questions over the idiosyncrasies of Japan's criminal justice system.

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His fall from grace couldn’t have been more dramatic. Carlos Ghosn was taken into custody straight from his corporate jet; and was arrested on suspicion of under-reporting his pay as head of Nissan by some €40 million over five years. After being held without charge for three weeks at the Tokyo Detention Centre, the French-Lebanese-Brazilian businessman was indicted for financial misconduct on Monday, and was immediately re-arrested for similar wrongdoing over three additional years.

Not coming clean about his salary in annual corporate filings was the only allegation that has been made public since his arrest on November 19. Nevertheless, Japanese media were quick to publish uncorroborated reports of other acts of financial misconduct, painting a picture of a greed-driven foreigner who pursued a lavish lifestyle using Nissan as his personal piggy bank, while relentlessly cutting costs at the carmaker. Following his arrest, Nissan and Mitsubishi also swiftly removed him as their chairman.

Later news reports said that the amount Ghosn failed to report was in “deferred compensation” to be paid out in the future, and that he and Greg Kelly, another executive arrested alongside him, both denied they had any criminal intention in not disclosing it.

The all-powerful 'Tokuso' prosecutors

The conditions in which Ghosn is being held have sparked concern. He has been cut off from the outside world and has only been allowed to see his lawyer and a handful of people from the French, Brazilian and Lebanese consulates. The Wall Street Journal described the situation as a “bizarre inquisition”. In Beirut, billboards supporting the businessman have popped up.

At a press conference shortly before a court granted a second extension to Ghosn’s detention, Shin Kukimoto, Deputy Chief Prosecutor for the Tokyo District Public Prosecutors’ Office, responded to criticisms: “Each country has its own system based on its history and culture. I doubt if it’s appropriate to criticise another jurisdiction just because it runs on a different system.”

In Japan, arrests are generally made by police and handed to prosecutors who examine whether there is enough evidence to indict and try the suspect. But prosecutors also have the power to investigate, arrest and indict on their own. There are three “Special Investigation Units” or “Tokuso-bu’’, which deal with high-profile, complex cases of financial crimes and corruption – based in Tokyo, Osaka and Nagoya. It was the Tokyo team who arrested Ghosn.

Almost all indictments lead to guilty verdicts – Japan’s criminal conviction rate stands at a staggering 99.9 percent. This is partly because prosecutors only pursue cases when they are extremely confident the suspect will be proven guilty. When they make their own arrests, they will have already decided to indict, and win, the case.

Nobuo Gohara, a lawyer and former prosecutor specialising in corporate governance, tells France 24: “The extraordinarily high conviction rate indicates that in Japan, whether a suspect is guilty or not is almost solely decided by prosecutors. Even if the prosecutors wrongly indict a suspect, it is extremely difficult to reverse that decision in court. Few judges are willing to deliver an innocent verdict. And this has led to some false convictions. “

One such case came to prominence in 2014, when a 77-year-old man was granted a re-trial for lack of evidence and was freed, after spending 44 years on death row.

Under Japanese law, prosecutors can detain a suspect for up to 23 days without charge and can repeatedly extend this detention by filing new accusations.

Lawyers are not allowed to be present during interrogation sessions. Some former suspects have accused prosecutors of coercing them into giving confessions that fit their preconceived scenarios.

While relying heavily on confessions and testimony in building cases, prosecutors often strategically leak information to the media that could sway public opinion in their favour.

Thus, a suspect is prosecuted by the media before any formal charges are filed, raising questions whether the presumption of innocence, a principle enshrined in Japan’s constitution, is respected.

Failures and reforms

For a long time, the Tokuso investigators have enjoyed strong public confidence for bringing greedy politicians and corporate giants to justice. They famously went after former prime minister Kakuei Tanaka in the Lockheed-Martin bribery case in the 1970s (he died while appealing the verdict), and arrested another ex-premier, Shin Kanemaru, for tax evasion in the 1990s.

The prosecutors’ unchecked discretionary power, and the pressure they are under to deliver a guilty verdict, have also left room for abuse. In 2010, an ace prosecutor in Osaka was arrested for tampering with evidence and two of his superiors – including the former head of the Special Investigation Unit – were arrested for covering up his crime.

The senior government official indicted on corruption in that case was acquitted of all charges in a court ruling that prosecutors decided not to appeal.

But the case shocked the nation and tarnished the prosecutors’ reputation, eventually leading to some reforms like videotaping interrogations. Ironically, the reforms made prosecutors more cautious in pursuing cases, losing them public support. A 2016 decision by Tokyo prosecutors not to press charges against a prominent conservative former minister involved in a corruption scandal disappointed many and further eroded public trust.

‘’Perhaps the tokuso prosecutors wanted to draw positive attention from the public through a new, high-profile case,” Gohara says.

As well as criticism over his treatment, speculation has been mounting that prosecutors may have jumped the gun in arresting Ghosn, with some suggesting the charges are merely part of an elaborate boardroom coup.

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