Editorials

What's at stake in the Ghosn trial

The high-profile case involving former Nissan Motor Co. Chairman Carlos Ghosn — indicted on charges of aggravated breach of trust and underreporting his executive pay — will move to the judiciary stage when the court, prosecutors and his defense team begin pre-trial proceedings later this month to sort out the points of contention and evidence. Since Ghosn and his lawyers deny all of the charges filed against him, however, the proceedings are expected to take longer than anticipated, and it is now believed that the opening of the trial, which was earlier speculated to begin as early as this fall, will be delayed possibly into next year.

Ghosn has been indicted on charges that he underreported his remuneration by some ¥9 billion over eight years in the automaker’s annual financial reports and transferred some ¥1.8 billion in private investment losses to Nissan. He is also accused of misappropriating company money for personal use by having a Nissan subsidiary pay some ¥1.7 billion to a distributor in Oman, and siphoning off about ¥560 million from that amount and sending it to a Lebanese investment firm that he effectively controlled.

Since he has denied any wrongdoing, these charges will be contested in the trial. It will now be up to the court to determine whether Ghosn — who until his arrest last November led Nissan for 20 years after saving the major carmaker from the brink of collapse and headed the international auto alliance involving Mitsubishi Motors Corp. and France’s Renault SA — engaged in the alleged wrongdoing. If so, it will have to determine how and why he did these things and how Nissan — which is also under indictment over the underreporting of Ghosn’s executive pay — allowed its former charismatic leader to engage in the suspected acts for so long.

Ghosn’s trial will also be the first case in which the charges established by prosecutors based on a plea bargain will be contested in court. The plea bargain system, introduced in Japan last June as a new tool for investigators to collect evidence, allows a suspect to strike a deal with prosecutors to cooperate with the investigation on an alleged accomplice in exchange for leniency or having his or her case dropped. In the investigation into Ghosn’s case, two former close aides to the accused reportedly reached a plea bargain with the special investigation squad of the Tokyo District Public Prosecutor’s Office, and Nissan itself is believed to have fully cooperated with the prosecutors in the probe.

In its talks so far with the prosecutors and Ghosn’s defense team, the Tokyo District Court reportedly said that it intends to make a careful judgment on the credibility of the testimony of witnesses who agreed to the plea bargain. It is likely that in court Ghosn’s defense will challenge the objectivity of the testimonies of the former aides to the ex-chairman, who are said to have been persuaded by Nissan’s top management to enter a plea deal with the prosecutors. The trial should serve as a first real test of plea bargaining in Japan’s criminal justice system.

As the arrest of the top leader of the Renault-Nissan-Mitsubishi Motors alliance drew strong international attention, overseas media and experts highlighted what was widely criticized as “hostage justice” in which criminal suspects are placed under an extended detention, denied the presence of a lawyer during interrogations and often denied bail unless they have confessed to the charges. Following his arrest, Ghosn was placed under detention for 108 days until his release in March on bail of ¥1 billion — before he was arrested again in early April on a fresh warrant on the allegation of misappropriating the company funds paid to the Oman distributor — and was released late last month for the second time on a ¥500 million bail.

Whether or not its decision has been influenced by overseas criticism of the various practices in the Japanese criminal justice system, the Tokyo District Court in this case repeatedly turned down the prosecutors’ calls for extending Ghosn’s detention. Its decision to grant bail the first time was made even as the former Nissan chairman continued to deny the charges — although it was accompanied by conditions that restricted his use of personal computers and installed video monitors at the gate of his residence. When he was released on bail for the second time in late April, the court recognized the risk of Ghosn destroying evidence but reportedly put priority on averting a disadvantage on the part of the accused of not being able to sufficiently prepare for the trial due to protracted detention.

The Criminal Procedure Law stipulates that aside from considering the risk of escape or destruction of evidence, the court can grant bail to suspects or the accused in view of disadvantages in terms of their health, social life or defense. Whether these decisions by the court reflect the changes in its policy or made as an exception in response to the criticism against “hostage justice” needs to be closely watched.