Japan: A “Hostage” Criminal Justice System?

By: Dominick Cortez

Carlos Ghosn was the chairman of Nissan, chief executive of Renault, and chairman of the board at Mitsubishi.[1] His leadership was largely accredited as the reason that Nissan pulled itself back from the brink of bankruptcy and is now one of the largest autogroups in the world.[2] With this success came money.[3]

Japan’s corporate culture believes in its executives having humility and keeping the income gap inequality at lower levels than most other free market countries.[4] Carlos Ghosn was a foreign national in Japan and one of its most successful executive officers.[5] His success directly impacted Japanese corporate culture as he was consistently one of the highest compensated executive officers in Japan.[6] This may have led to the situation that will be described below.

Carlos Ghosn was arrested in November 2018 on charges that he underreported his income.[7] He was detained for over 100 days based on these charges while being investigated.[8] He was finally released and then rearrested on charges of using Nissan business funds to offset his personal losses.[9] Mr. Ghosn claimed that this was Nissan and Renault, his former employers, trying to silence him.[10] The police were attempting to keep him in custody because they believed that he would destroy evidence or tamper with witnesses.[11]

Carlos Ghosn was finally released on house arrest after nearly six months of pre-conviction detention.[12] After being placed on house arrest, Carlos Ghosn and his wife devised a plan to escape what they considered to be injustice at the hands of a country Ghosn had served for seventeen years.[13] Ghosn arranged for a private airplane to be waiting at the Kansai International Airport.[14] This private airplane transported Ghosn to Turkey.[15] After a little while in Turkey, Ghosn made his way to Lebanon where he is currently staying as they have no extradition treaty with Japan.[16]

The situation described above involving Carlos Ghosn is typical of the contemporary Japanese criminal justice system. A modern arrest in Japan would involve the police approaching a suspect.[17] After surrounding the suspect, they would ask the suspect to accompany them “voluntarily” to the police station and “voluntarily” answer some questions.[18] Once there “voluntarily,” the suspect is asked to stay “voluntarily.”[19] Since the person is there “voluntarily,” the rights guaranteed to them by the Japanese Constitution do not apply.[20] This person cannot see their counsel because they are there “voluntarily.”[21] No warrant is needed because they are there “voluntarily.”[22]

This “voluntary” stay can normally only last three days before an arrest warrant must be had.[23] The arrest warrant allows the police to detain a suspect for ten days in order to investigate their alleged crimes and can be extended another ten days optionally.[24] This means that a person can be detained in twenty-three day increments without any formal indictments.[25] After each twenty-three day increment, new charges must be brought, or another arrest warrant must be obtained.[26] This whole time, the suspect is being held in either a detention prison or a substitute prison.[27] After the charges are brought, there is a 99% conviction rate.[28]

People in the international community, and the Human Rights Watch especially, have taken to calling the criminal procedure in Japan a type of “hostage criminal justice system.”[29] Japan’s Ministry of Justice chose to respond.[30] A FAQ document was posted to their website in both Japanese and English that answered fourteen pointed questions about the criminal justice system in Japan.[31] One of these questions was, “Wouldn’t it be fair to describe the Japanese criminal justice system as a ‘hostage justice’ system?”[32] Their answer included:

Critics of the Japanese criminal justice system often use the term “hostage justice” to describe the Japanese system based on their claim that the Japanese system seeks to force confessions out of suspects or defendants by detaining them for an extended period of time and by refusing to easily grant bail as long as they deny allegations or remain silent. To the contrary, the Japanese criminal justice system does not force confessions by unduly holding suspects and defendants in custody. It is therefore not accurate at all to criticize the Japanese system of being a “hostage justice” system. In Japan, there are strict requirements and procedures stipulated in law with regard to holding suspects and defendants in custody, with due consideration given to the guarantee of human rights.[33]

 The answer goes on to specifically mention that an independent judge evaluates detention arrests for probable cause and, after charging, whether a defendant receives bail.[34] Each of these is qualified with the fact that the judge can extend the term of the detention or deny bail if there is suspicion that a person will flee or destroy evidence.[35] Japan believes that its criminal justice system protects suspects and defendants who find themselves as the subjects of an investigation or trial to the necessary extent.[36]

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[1] Amy Chozik & Motoko Rich, The Rise and Fall of Carlos Ghosn, N.Y. Times (Dec. 30, 2018), https://www.nytimes.com/2018/12/30/business/carlos-ghosn-nissan.html.

[2] See id.

[3] Id.

[4] See Tara Law, Who Is Carlos Ghosn, the Businessman Who Fled House Arrest in Japan and Turned Up in Lebanon?, Time (Jan. 2, 2020), https://time.com/5758075/carlos-ghosn/.

[5] Id.

[6] Id.

[7] Ghosn: Former Nissan Chief Arrested in Japan on New Claims, BBC (Apr. 4, 2019), https://www.bbc.com/news/business-47808730.

[8] Id.

[9] Id.

[10] Id.

[11] Carlos Ghosn and Japan’s ‘Hostage Justice’ System, BBC (Dec. 31, 2019), https://www.bbc.com/news/world-asia-47113189.

[12] Tara Law, Who Is Carlos Ghosn, the Businessman Who Fled House Arrest in Japan and Turned Up in Lebanon?, Time (Jan. 2, 2020), https://time.com/5758075/carlos-ghosn/.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Colin P.A. Jones & Frank S. Ravitch, The Japanese Legal System 251-52 (2018).

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] See id. at 254.

[24] Id. at 254-55.

[25] See id.

[26] Id.

[27] See id. at 251-55.

[28] Mariko Oi, Japan Crime: Why do Innocent People Confess?, BBC (Jan. 2, 2013), https://www.bbc.com/news/magazine-20810572.

[29] Japan Events of 2019, Human Rights Watch, https://www.hrw.org/world-report/2020/country-chapters/japan (last visited Aug. 30, 2020).

[30] Elaine Lies, 'Hostage Justice'? Japan Fights Back with an Internet FAQ, Reuters (Jan. 21, 2020), https://www.reuters.com/article/us-japan-ghosn-justice/hostage-justice-japan-fights-back-with-an-internet-faq-idUSKBN1ZK0L2.

[31] Id.; see also Frequently Asked Questions on the Japanese Criminal Justice System, Japanese Ministry of Justice, http://www.moj.go.jp/EN/hisho/kouhou/20200120enQandA.html#Q3 (last visited Aug. 30, 2020).

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.