As Japan’s legal system faces international scrutiny over its treatment of defendants amid the Carlos Ghosn saga, there is a silver lining to be found for critics: the rising number of suspects being granted bail.
The 65-year-old former Nissan Motor Co. chairman was released late Thursday night after posting bail of ¥500 million.
Ghosn’s prolonged detention — 108 days between Nov. 19 and March 6, when he was released on bail for the first time — and treatment, including interrogation without his lawyers present, have unleashed international criticism toward the country’s legal system, with some critics labeling it “hostage justice.”
Historically, if a suspect didn’t plead guilty courts were unlikely to grant bail, usually siding with claims by prosecutors, including those in the Ghosn case, that the individual was likely to tamper with evidence.
Critics have slammed such a practice, saying it creates an environment that leads to false confessions.
But if anything, Ghosn’s conditional release follows a larger trend, with courts increasingly likely to approve bail.
The rate of bail approval in Japan has increased from roughly 15 percent in 2007 to about 32 percent in 2017, according to the Japan Bail Support Association, an organization that helps those who have difficulty securing bail payments.
Mikio Miyoshi, a law professor at Sophia University in Tokyo and a former judge at the Tokyo High Court, attributed the increase in the rate of bail approval to the legal system overhaul that started in 1999.
The country was experiencing a shortage of criminal defense attorneys at the time, Miyoshi said, but because of the reform, the number of defense lawyers dramatically increased, and there are now more cases of them presenting clear, detailed bail conditions to the court. Such a trend has made it easier for the court to grant bail, Miyoshi explained.
The number of lawyers swelled to more than 40,000 in 2018 from about 25,000 in 2008, according to the Supreme Court.
“Back in those days, not many lawyers wanted to take criminal cases because they were hard and not profitable,” he said.
But as the number of lawyers has gone up, it has prompted younger and efficient lawyers to take on such cases due to a more competitive environment, he said. “So for instance in a criminal case, more lawyers are willing to work hard to secure one’s freedom by applying for bail,” he said.
Yasuyuki Takai, an attorney and a former prosecutor, told The Japan Times when Ghosn was released for the first time in March that him being granted bail is a reflection of the country’s changing legal system.
Japan, like many advanced democracies, used to release a suspect on bail shortly after arrest, he said. But protracted detention became an issue in the late 1970s amid a major political scandal, establishing the questionable practice, he said.
However, in recent years, judges have been more prone to grant bail because they specifically focus on determining whether there is a significant risk that the accused will destroy evidence, instead of whether the suspect is admitting guilt or not, he said.
Nobuo Gohara, a lawyer and a former prosecutor at the Tokyo District Public Prosecutor’s Office, explained that in a 2014 lawsuit, the Supreme Court ruled it was illegal to reject a request for bail merely based on the possibility that a suspect may tamper with evidence.
After that decision, the rate of bail being granted has gone up, he said.
Gohara says the country’s justice system is slowly but finally catching up to the international norm.
“The country has no choice,” Gohara said. “The system has been abnormal up until now.”
Still, bail conditions can be strict.
In addition to the conditions of his release in March, which restricted phone and computer use, Ghosn is now not allowed to see his wife, Carole, without court permission. Domestic media reports have suggested her involvement in the latest accusation against him, an allegation that Ghosn’s defense team denies.
Carole Ghosn has not been subjected to any charges, and Ghosn described the restriction as “cruel and unnecessary.”
“We love each other very much, she answered all of the prosecutors’ questions in court, and she has done nothing wrong,” Ghosn said in a statement shortly after his release.