Freedom is easy to take for granted — at least until it is taken away from you without warning.
Carlos Ghosn, chairman of the alliance between Nissan Motor Co., Renault SA and Mitsubishi Motors Corp., was arrested on Nov. 19 for alleged financial violations.
Two days later, the Tokyo District Court ordered Ghosn to be held for a further 10 days as prosecutors investigate allegations the 64-year-old underreported his pay package. On Friday, the same court approved a request from prosecutors to keep Ghosn until Dec. 10 for further investigation.
Ghosn’s arrest provides an opportunity to examine issues relating to the legal process that suspects face once they are taken into custody, where prosecutors have up to 23 days to decide whether or not to press formal charges.
Foreign suspects are more likely to be held in custody for the full term, with prosecutors often believing them to be a flight risk.
Criminal defense attorney Makoto Endo once said that Japan’s criminal courts operate on a presumption of “guilty until proven guilty.” Endo said the goal of the system wasn’t to dispense justice, it was to obtain a conviction.
After an arrest, police officers initially have 48 hours to decide what to do with a suspect. In practice, officers will always fingerprint a suspect and take a statement.
The police could decide not to pursue the case and let a suspect go. They could also release a suspect but still send the case to the prosecutors. More likely, they will continue to detain a suspect and press charges.
The next 24 hours are crucial to any case, with prosecutors using this time to decide whether or not to indict a suspect.
Japan’s criminal justice system is famous for its 99 percent conviction rate, although this figure is only correct insofar as it reflects those who have been indicted. Prosecutors routinely drop around 50 percent of the cases they receive.
“Japan’s prosecutors tend to only take slam-dunk cases,” says David Johnson, author of “The Japanese Way of Justice.”
In that first 24 hours, prosecutors typically ask for a suspect to be held for an additional 10 days to ensure evidence isn’t destroyed or the accused doesn’t flee. The court almost always grants this request. During this time, prosecutors can question suspects up to eight hours a day with no lawyer present. Many suspects are kept in a cell at a police station, although women in Tokyo usually end up at a police station in Harajuku that has heating and air-conditioning.
Mobile phones and personal belongings are confiscated after an arrest and suspects are not given any access to a computer while in custody. They have no way to communicate with the outside world other than talking to their lawyer or visitors.
Suspects are allowed up to three visitors at once, but only one visit each day. Visits are only granted on weekdays and typically limited to 20 minutes. They are monitored by authorities and conversation during a visit can only be conducted in Japanese.
Suspects are generally allowed to shower every other day. The food served in detention has been described as bland and almost inedible.
If suspects don’t confess within the first 13 days, prosecutors will typically ask for an additional 10 days. Bail is seldom granted.
“A suspect’s lawyer can ask for bail but the request is usually denied unless there’s a confession,” defense attorney Hiroyuki Kawai says. “If a suspect doesn’t confess, prosecutors assume there’s a risk that the suspect will tamper with evidence that would convict them, presuming that they’re guilty in the first place. A confession may get a suspect out earlier, but then they’re certainly going to be prosecuted and convicted.”
At the end of the 23 days, prosecutors must decide whether to indict a suspect or release them.
And even if a suspect is released, the police can re-arrest them on different charges and the 23-day process starts from the beginning.
Such practice is standard in murder cases, where suspects are initially placed in custody on charges of “improperly disposing of a corpse,” interrogated for 23 days, indicted and then re-arrested on homicide charges.
This technique is also used in high-profile corporate cases. Mark Karpeles, former CEO of Mt. Gox, was re-arrested at least twice in 2015 after he refused to confess. He maintained his innocence and is still on trial … three years later.
On Dec. 10, one wonders which path prosecutors will take in Ghosn’s case. Only time will tell.
Dark Side of the Rising Sun is a monthly column that takes a behind-the-scenes look at news in Japan.