Ousted chairman’s ‘early’ release unusual case

The March 6 release of former Nissan Motor Co. Chairman Carlos Ghosn on bail took place at an unusually early stage in his case, compared with other cases handled by the special investigation squad of the Tokyo District Public Prosecutors Office in which the accused deny the allegations.

Will his release on bail have an impact on Japan’s much-criticized system for bail in the future?

“Japan’s detention system is called ‘hostage justice,’ which lasts forever if the accused person doesn’t confess. It’s extremely unfair,” Junichiro Hironaka, a lawyer representing Ghosn, told reporters on March 4. Hironaka was criticizing Japan’s current legal system, in which accused persons who deny the allegations against them often have difficulty getting out on bail.

Overseas media reporting on Ghosn’s case have touched on this practice of “hostage justice.” A BBC article posted online on March 6 said: “The case has attracted global attention and drawn criticism of Japan’s criminal justice system, which allows for lengthy detention periods.”

It is true that among cases handled by the special investigation squad, defendants who continued to deny the charges have tended to be detained for a long time. Former House of Representatives member Muneo Suzuki, who was indicted for bribery and other charges in 2002, was detained for 437 days, the longest-ever detention for a lower house member in the postwar period.

Former Health, Labor and Welfare Ministry bureaucrat Atsuko Muraki, who was indicted in 2009 over a postal abuse case and eventually acquitted, was detained for 164 days.

Prosecutors usually oppose bail for accused persons who deny the allegations, on the grounds that they may cover up evidence through such means as making secret arrangements with people involved. Long-term detention was the result of the courts’ approval of such arguments.

In recent years, courts have begun reviewing the bail system, a move prompted by the introduction of the lay judge system in 2009 and by the pretrial conference procedures introduced in 2005 ahead of the start of the lay judge system. With criminal trials now under public scrutiny, judges’ mind-sets have changed.

During pretrial procedures, the point at issue and evidence are narrowed down prior to a first hearing. It has therefore become necessary to create an environment in which lawyers can prepare for court proceedings with defendants by having them released on bail at an early stage.

In 2006, an Osaka District Court judge in charge of deciding on bail presented a research paper that stressed the importance of “actively granting bail as long as specific possibilities of destroying evidence is examined.” In 2014, the Supreme Court made a decision that supported the trend of actively allowing bail.

As a result, bail is currently being accepted more often. According to the top court, the percentage of cases where district courts accepted requests for bail before the first trial rose from 48 percent in 2000 to 66 percent in 2017.

“Ghosn’s bail is an extension of this recent trend,” a veteran criminal trial judge said.

Stringent conditions have been established for Ghosn’s bail. Among other requirements, security cameras are set up at the entrance to his home, his defense team must check images taken by the cameras before submitting them regularly to the court, and Ghosn must use a mobile phone and personal computer that are not connected to the internet.

“Prosecutors will keep watching [Ghosn] to check if he is following the conditions for bail — such as a ban on contact with people involved in the case — and the accused may forfeit their bail if they are suspected of destroying evidence,” said lawyer Yasuyuki Takai, a former prosecutor with the special investigation squad of the Tokyo District Public Prosecutors Office.