Japan in Their Own Words (JITOW)/日本からの意見

Overseas Criticism of Japanese Investigation Techniques in the Case of Ex-Nissan Chairman Carlos Ghosn
TAKAO Yoshihiko / Journalist

January 22, 2019
Carlos Ghosn, former Chairman of Nissan Motor Corporation, was arrested for the second time on suspicion of aggravated breach of trust, and spent the start of 2019 locked in a cell at the Tokyo Detention Center in Kosuge. He was originally arrested on November 19 last year by the special investigation unit of the Tokyo District Public Prosecutor’s Office for allegedly violating the Financial Instruments and Exchange Act by failing to report approximately 5 billion yen in earnings. Since then, he has remained in detention for more than fifty days.

The shock of the arrest immediately gave way to criticism, primarily from outside Japan, which can be summarized into two points – the method adopted by Japanese investigators of grilling suspects over an extended period of detention, and the Japanese system of not allowing lawyers to be present during questioning. There are historical and other differences between the judicial systems in Japan on the one hand and the United States and Western Europe on the other. With respect to taking suspects into custody, the Japanese system provides oversight by having the courts decide whether or not to allow detention, so unilateral criticism seems unreasonable. However, questions raised here serve as valuable pointers to inherent issues in the Japanese system that should be addressed by those in the legal profession.

Here is a quick review of how things developed. The special investigation unit arrested former Chairman Ghosn and former Nissan executive Greg Kelly on November 19 for allegedly submitting an annual securities report stating that Mr. Ghosn had received around 4.987 billion yen in compensation for the period between 2011 and 2015, when the actual amount was around 9.998 billion yen. On December 10, they were re-arrested for under-reporting about 4.2 billion yen more in compensation for the nearest three years. The Tokyo District Court denied the prosecution’s request to keep the two detained for another ten days based on this allegation, and on December 21, only former Chairman Ghosn was arrested yet again for aggravated breach of trust, while Mr. Kelly was granted bail and released on December 25.

Under the Japanese legal system, the prosecution can file a request for ten days of detention within 48 hours of arresting a suspect, and an additional ten days as needed. In the current case, the prosecutors and the court had played by the book, but the charges for the first and second arrests were the same except for the period cited, and the court may have denied the second extension also in consideration of criticism from overseas. Meanwhile, the third arrest was based on a completely new charge, so the court granted a total detention period of twenty days until January 11.

As for judicial systems in other countries, in France for example, suspects can be detained without a warrant, for a period of one day in principle to a maximum of four days, while a maximum of six days’ detention is granted for terrorist charges. The difference with Japan is that in France investigations are also conducted by a magistrate, in which case the suspect can be detained for as long as four years and eight months. In the United States, the maximum period of detention is thirty days from arrest to indictment by a grand jury, and an extension of another thirty days may be granted as an exception. As in France, arrests are mostly made without a warrant. In any case, no simple comparisons can be made with the Japanese system.

Considering this premise, why then has this case been criticized as a “human rights violation” and “bizarre inquisition” by the foreign media? Such criticism has been extended even to the way Japanese suspects are treated during detention. As a journalist with a longstanding interest in the judicial system, when I come across criticism of Japan’s extensive detention periods, my thoughts turn to the evils of “hostage justice.”

Usually, a suspect can seek bail after being charged. But when a suspect denies the charges, the prosecution can submit its opinion against granting bail, which is often accepted by the court. In recent cases, the former chairman of school operator Moritomo Gakuen and his wife remained in detention for 299 days. Suzuki Muneo, who was a member of the House of Representative when he was accused of influence peddling, was detained for 437 days from 2002 to 2003, while Horie Takafumi, former CEO of Livedoor, spent 95 days in detention.

And there was Muraki Atsuko, a former bureau chief at the Ministry of Health, Labor and Welfare, who was arrested in 2009 in connection to a postal abuse scandal. Before being acquitted, she spent 164 days in detention, and during this time the special investigation unit of the Osaka District Public Prosecutors Office went so far as to fabricate evidence against her, which subsequently came to light and led to the arrest of public prosecutors.

In the Lockheed Scandal I covered in 1976, the special investigation unit of the Tokyo District Public Prosecutors Office arrested former Prime Minister Tanaka Kakuei on July 27 for allegedly violating the Foreign Exchange Control Law. Tanaka was slapped with an additional charge of taking bribes and released after only 20 days in detention. The former prime minister denied receiving 500 million yen in bribes, but his denial had been factored in by the special investigation unit. The term “hostage justice” didn’t exist at the time I was reporting this scandal, and it wouldn’t be completely inaccurate to say that that the Japanese judiciary became tainted by corrupt practices deserving of criticism from around the turn of the 20th century.

In financial cases such as bribery scandals and the latest case involving Nissan, it was customary for the special investigation unit to collect enough incriminating evidence before detaining major suspects for questioning. “Hostage justice” became rampant as the nature of the special investigation unit within the prosecution changed from that of a low-profile group of professionals sniffing after the trail of evidence to that of a gateway to promotion for prosecutors. In the current case, prosecutors have turned to the use of plea bargaining, but even with this new weapon in hand, I am concerned that their investigative capabilities are on the decline.

Japanese Bar Associations and others have strongly demanded reforms against the practice of “hostage justice.” The courts have also come under fire for acting in unison with prosecutors by giving consent in favor of the prosecution’s intentions.

It is doubtful if observers outside voicing their criticism are fully aware of the issues faced by the Japanese judicial system. Even so, we should recognize the gravity of the fact that the Tokyo District Court’s unusual decision to deny a further extension to Mr. Ghosn’s detention was hailed as epoch-making by some. Regardless of the validity of foreign criticism, as a country with such a judicial system, I hope Japan will take this opportunity to return to the basics of democracy and give consideration to the human rights of suspects.

On a further note, current issues raised by denying the presence of a lawyer during questioning offer an opportunity to address the criticism against questioning suspects behind closed doors. Since writing my book “Tsuyoki wo Kujiki – Shiho Kaikaku eno Michi (Breaking the Powerful – The Road to Judicial Reform, Mainichi Shimbun, 1999),” I have followed the actions taken by Nakabo Kohei, the former chairman of the Japan Federation of Bar Associations. Nakabo was instrumental in establishing the Justice System Reform Council, which eventually led to the introduction of a jury system in 2009. Concurrently, measures were implemented to increase the number of applicants who pass the bar exam as a means to expand the role of lawyers in Japanese society.

The rise in the number of lawyers was mostly limited to the area of civil law and had little effect on criminal law. However, work is under way to ensure transparency as an alternative measure; in major cases, audiovisual recordings are being required to check the process of questioning by prosecutors. It has taken a long time for the Japanese judiciary to get here. And while lawyers are not expected to be allowed to sit in on questioning any time soon, we must continue to seek a better way as we struggle between uncovering the truth and ensuring suspects’ human rights.

Yoshihiko Takao is a former legal affairs reporter for the Mainichi Shimbun newspaper, and has written books including “Yoki na Piero-tachi - Tanaka Kakuei Genso no Genba kensho (Cheerful Clowns – On-site Investigation of the Illusion of Tanaka Kakuei, Shakai Shishousha) and “Nakabo Kohei no Shura ni Iru (Nakabo Kohei – Into the Scene of Carnage, Mainichi Shibun).
The English-Speaking Union of Japan

カルロス・ゴーン日産前会長事件 —日本の捜査手法に対する海外の批判を考える
高尾義彦 / ジャーナリスト

2019年 1月 22日
特別背任容疑で再々逮捕された日産のゴーン前会長は2019年の正月を小菅の東京拘置所で迎えた。前年の11月19日、公表すべき報酬 約50億円を隠ぺいしたとして金融商品取引法違反容疑で東京地検特捜部に逮捕されて以来、勾留日数は50日を超えた。












もう一点、被疑者の取り調べに弁護士が立ち会えないことに対する問題提起では、密室での取り調べに対する批判を考える契機になる。拙著『強きをくじき 司法改革への道』(毎日新聞社、1999年)以来、その活動をフォローしてきた中坊公平・元日弁連会長らが提唱して司法制度改革審議会が発足、その成果として裁判員制度が導入された(2009年)。並行して弁護士の社会的役割を広げるため司法試験合格者の人数を増やす施策がとられた。


筆者は元毎日新聞司法記者。著書は『陽気なピエロたち 田中角栄幻想の現場検証』(社会思想社)『中坊公平の 修羅に入る』(毎日新聞社)など。
一般社団法人 日本英語交流連盟

English Speaking Union of Japan > Japan in Their Own Words (JITOW) > Overseas Criticism of Japanese Investigation Techniques in the Case of Ex-Nissan Chairman Carlos Ghosn