The release of former Nissan Motor Co. Chairman Carlos Ghosn on ¥1 billion bail after he spent 108 days behind bars following his arrest last November should provide people with an opportunity to stop and think about Japan’s criminal justice system, in particular the phenomenon in which the accused can be detained for months, or even more than a year, before they stand trial.
Just as the charges — aggravated breach of trust and underreporting his executive income — against the man who successfully led the turnaround of a major automaker and headed the global Nissan-Renault-Mitsubishi Motors alliance drew heightened international media attention, the system that can keep the accused detained for extended periods after indictment — especially if they maintain their innocence — has been widely criticized as “hostage justice” aimed at forcing a confession.
After rejecting two previous bail requests by his lawyers, the Tokyo District Court this week granted bail to Ghosn under conditions meant to eliminate the chances of him fleeing the country or destroying evidence: Video monitors will be installed at the gate to his house and the recorded images will be submitted to the court; he will be prohibited from traveling overseas and his passport will be held by his defense counsel; his use of cellphones and computers for communications and accessing the internet will be restricted; and he will be barred from contacting people with links to the charges against him, such as Nissan executives. It is speculated that the court was influenced by the overseas criticism of his extended detention in responding favorably to the bail conditions offered by his new defense team.
Under the Criminal Procedure Law, bail requests can be rejected if there are substantial grounds to suspect that the accused might destroy evidence if released. In most past cases, courts turned down requests for bail after indictment if prosecutors opposed the release citing the risk of evidence being destroyed — especially when the accused had denied the charges. As of 2016, bail reportedly had been granted before trials in only 8.9 percent of the cases in which the accused had not already confessed.
There have been past cases in which detention has continued for more than a year. Former Lower House member Muneo Suzuki was detained for 437 days following his 2002 arrest for bribery before he was finally released on bail prior to the start of his trial, in which he was found guilty. Another former Lower House member, Toshio Yamaguchi, was detained for 388 days after his arrest in 1995 for suspected breach of trust and other allegations in connection with illicit lending involving credit unions. Yasunori Kagoike, who was arrested in 2017 for suspected fraud over government subsidies for his plan to build an elementary school in Osaka Prefecture — for which he obtained a tract of government-owned land at a suspicious discount — was detained along with his wife for 299 days before their release on bail last May.
Since bail is often rejected when the accused refuse to confess, people who are eventually acquitted in court still end up spending months behind bars before their trials begin. Atsuko Muraki, a former Health, Labor and Welfare Ministry director who was arrested and indicted in 2009 for suspected involvement in the falsification of public documents in connection with fraud, was jailed for 164 days before released on bail. She was found not guilty in court — and a prosecutor was subsequently arrested and convicted of tampering with evidence to falsely charge her.
In the case of Ghosn, whose charges include the allegation that he transferred private investment losses to Nissan during the global financial crisis in 2008, the Tokyo District Court did not necessarily follow all of the prosecutors’ requests. Former Nissan Director Greg Kelly, who was arrested and indicted along with Ghosn, was released after posting ¥70 million bail in late December as the court turned down prosecutors’ appeal against the decision to grant bail — even though Kelly denied the charges against him. In another move also deemed unusual, the court in December turned down the prosecutors’ request for extending the detention of Ghosn and Kelly over the initial charge of underreporting Ghosn’s executive pay in the automaker’s annual report to shareholders — before Ghosn was served a new warrant for the alleged breach of trust.
Detention by investigation authorities imposes a heavy physical and psychological burden on the accused. Whether or not they should continue to be held for an extended period after being indicted should be strictly examined by courts on the basis of the practical risk that they may escape or destroy evidence — instead of merely accepting the prosecutors’ argument.