The Nov. 19 arrest of ousted Nissan Motor Co. Chairman Carlos Ghosn, his 23-day detention, his subsequent arrests and lengthy stay in detention has resulted in international scrutiny of Japan’s criminal justice system. Is that fair?
Shin Kukimoto, deputy public prosecutor at the Tokyo District Public Prosecutor’s Office, defended the practice at a news conference in the capital last year.
“Each country has its own history, culture and systems,” Kukimoto told reporters. “I wonder if it’s appropriate to criticize our system just because it’s different.”
Attempts to dismiss criticism of Japan’s criminal justice system as Western prejudice really only work if one ignores numerous voices of dissent that have been raised by criminal defense lawyers in addition to opposition from prosecutors and judges.
Nobuo Gohara, a former prosecutor, believes the criminal justice system in Japan is based on a hostage mentality.
“If you admit to the crime you’re arrested for, you’re released on bail relatively quickly,” Gohara says. “However, if you dispute the charges or claim innocence, you will be detained longer. You won’t be released on bail and your detainment will last weeks. You’re basically held hostage until you give the prosecutors what they want. This is not how a criminal justice system should work in a healthy society.”
Not only does the application of such a system fly in the face of the widely accepted notion of being innocent until proven guilty, it encourages false confessions. It also punishes those who have the audacity to deny any charges laid against them and even if you are released from detention without an indictment, the odds that your job will still be there 23 days later are rather slim.
So long as the police and the prosecutors are correct, Gohara believes “hostage justice” can work. “However, no sooner than they make a mistake and grab an innocent person,” he says, “the whole system becomes a terrifying weapon.”
In the past, backroom deals have been struck to elicit a confession. On Nov. 24, 2015, the Tokyo High Court ruled that a 51-year-old fraud suspect had been coerced into confession by the police who promised him a lighter sentence if he confessed. He had been charged with multiple counts of fraud, allegedly because he refused to confess to the initial charges. The defendant later retracted his confession and pleaded innocent. His lawyer asked to cross-examine the police officers who had interrogated the subject, but the court rejected the request.
The defendant was sentenced to five years in jail; the sentence was appealed. The suspect then called the arresting officers and recorded them admitting to making a deal with him. On that basis, the Tokyo High Court ruled that the case should be retried and sent it back to the lower courts.
In the summer of 2012, a hacker used compromised computers to have four people wrongfully arrested on charges of making online death threats. All of those arrested initially denied the crimes, but two eventually admitted guilt after being held in detention for a number of days. They were all released in October 2012, when the real culprit sent emails to authorities containing details that could only be known by the actual criminal.
The prosecutors had coerced a false confession from one suspect, while another believed he was covering up for a crime that his girlfriend might have committed. The Japanese media, which relies on being drip-fed scoops by prosecutors, didn’t delve deeply into the matter.
In 2011, the Tsuchiura branch of the Mito District Court delivered a verdict of not guilty to Shoji Sakurai and Takao Sugiyama, both 64, who were sentenced to life in prison in 1970 for the robbery and murder of Shoten Tamamura, a 62-year-old carpenter. The pair had already served nearly 30 years in prison before the court ruled that their confessions had been forced.
Once you’re in the system, you’re in trouble. Japan has a 99 percent conviction rate, but this is because prosecutors drop roughly half the cases they are given. Once you’re indicted, however, you have a slim chance of being released.
Hiroshi Segi, a former Supreme Court judge, wrote in a book titled “The Hopeless Court” that judges who dare to find people not guilty get punished professionally.
Hiroshi Ishikawa, a former prosecutor, wrote in detail about the abuse of prosecutorial power and the ability to detain suspects in a book titled “Kenji Shikaku.”
Ishikawa himself had been implicated in a case of false confessions before resigning. He says there’s enormous pressure on police and prosecutors to obtain a guilty verdict by any means.
“I was taught that foreigners and gang members have no human rights,” he once told me. “I was taught that winning is everything. And with the de facto power to detain someone who insists they’re innocent all the way up to their trial, we usually win. However, that doesn’t always mean that justice is served.”
Dark Side of the Rising Sun is a monthly column that takes a behind-the-scenes look at news in Japan.
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