This is a paper I wrote for Asian Law and Society Association's Annual Meeting held in Osaka on December 14, 2019.




I have been working as a criminal defense attorney for more than 35 years in Japan and am now defending Mr. Carlos Ghosn, who was detained and interrogated for 130 days before released on bail under a variety of harsh conditions including complete prohibition of contact with his wife. I would like to describe the reality of Japan’s pretrial detention system.

Timeline of Mr. Ghosn’s Case
Timeline of Mr. Ghosn’s case focusing on major events concerning his confinement is as follows:

On November 19, Mr. Ghosn was arrested by prosecutors of Tokyo District Prosecutors’ Office Special Investigation Division with arrest warrant issued by a Judge of Tokyo District Court for violation of Financial Instruments and Exchange Act (“FIEA”), i.e., under-reporting his unpaid compensation from FY2010 through FY2014 along with another Nissan representative director Mr. Greg Kelly.

Two days later, a Tokyo D.Ct. Judge, accepting prosecutor’s request, ordered to detain Mr. Ghosn and Mr. Kelly until November 30, because, the judge said, there were reasonable grounds to believe (1) that the suspects may hamper evidences, and (2) that the suspect may flee; the judge also ordered them not to communicate with persons except their legal counsels and embassy personnel until prosecutor’s filing of indictment.

On November 30, a Tokyo D.Ct. judge granted prosecutor’s request for extension of the detention another 10 days (until December 10), stating as reasons for extension such as “analysis of evidences is incomplete”, “many related persons”, “interrogations of related persons are incomplete”, and “interrogations of the suspect as well as accomplice are incomplete”.

On the last day of this extended detention period, Toko D.P.P.O. indicted both Mr. Ghosn and Mr. Kelly for under-reporting Mr. Ghosn’s unpaid compensation FY2011-FY2014. At the same time, Mr. Ghosn and Mr. Kelly were re-arrested for under-reporting Mr. Ghosn’s unpaid compensation for FY2015-FY2017 by warrant issued by Tokyo D.Ct. judge.

The next day, December 11, a Tokyo D.Ct. Judge, accepting prosecutor’s request, ordered to detain Mr. Ghosn and Mr. Kelly until December 20, stating its reasons: (1) that the suspects may hamper evidences, and (2) that the suspects may flee; the judge also ordered them not to communicate with persons except his legal counsels and embassy personnel until prosecutor’s filing of indictment.

On the final day of the original ten-day detention, December 20, a Tokyo D.Ct. judge denied prosecutor’s request for extension of detention; and Three-judge panel of Tokyo D.Ct. rejected prosecutor’s appeal from that decision.

On December 21, Mr. Ghosn was re-arrested for the third time for violation of Company Law (aggravated breach of trust) by warrant issued by a Tokyo D.Ct. judge.

On December 23, a Tokyo D.Ct. Judge, accepting prosecutor’s request, ordered to detain Mr. Ghosn until January 1, 2019, stating the same reasons, i.e., probability of tampering evidence and flight; the judge also ordered communication ban until prosecutor’s filing of indictment.

On December 31, a Tokyo D.Ct. judge granted prosecutor’s request for extension of detention for another 10 days until January 11, stating as reasons “cases are complicated”, “interrogations of related persons are incomplete”, “review of tangible evidences are incomplete” and “interrogation of the suspect is incomplete”.

On January 8, 2019, Mr. Ghosn appeared in public for the first time since his arrest at Reason-of-Detention Hearing (Koryu Riyu Kaiji) at Tokyo D.Ct.; he stated his innocence for all the charges. His defense counsel filed a motion to revoke detention order. This motion was denied by a Tokyo D.Ct. Judge.

On January 11, Tokyo D.P.P.O. indicted Mr. Ghosn and Mr. Kelly for violation of FIEA FY2015-FY2017; Tokyo D.P.P.O. also indicted Mr. Ghosn for the breach of trust charge. At the same time, Tokyo D.P.P.O. requested a order of communication ban after indictment, which a Tokyo D.Ct. judge denied; Tokyo D.P.P.O. appealed from this denial; Tokyo D.Ct. judges turned down this appeal.

On January 15, a judge of Tokyo D.Ct. denied the Mr. Ghosn’s bail request, stating as reasons (1) that there was reasonable ground to believe that the defendant may hamper evidences, and (2) that defendant’s residence was unclear. Defense counsels appealed from the denial of bail; three-judge panel at Tokyo D.Ct. affirmed the original decision.

On January 18, defense counsels filed the second request for bail; Judge denied the bail, stating there was reasonable ground to believe that the defendant may hamper evidences.

Early in February, Mr. Ghosn removed previous defense counsels and hired new ones including me.

On February 28, new defense team filed a petition for bail, offering 10 items of conditions such as setting surveillance camera at entrance of his residence, defendant’s stay at one of his defense counsels’ office from 9:00 am till 5:00 pm on weekdays, reporting all phone-calls and visitors to the court, prohibitions of contact with related persons, etc.

On March 5, a Tokyo D.Ct. judge granted our bail request on the conditions that includes the ones defense team offered, plus posting 1 billion yen in cash; Tokyo D.P.P.O. appealed from the bail decision; three-judge panel of the court denied prosecutor’s appeal.

On March 6, Mr. Ghosn was released after 106 days confinement at Tokyo Detention Center.

On April 4, Mr. Ghosn was re-arrested for the fourth time for violation of the Company Law (aggravated breach of trust) by warrant issued by a Tokyo D.Ct. judge. A judge next day ordered to detain him until April 15, because there was probability of tampering evidence and flight; the judge also issued a communication ban; Defense counsels appealed from the detention order as well as communication ban; three-judge panel turned down the appeal.

On April 12, a Tokyo D.Ct. judge granted 10-day extension of detention until April 22, stating “necessary to analyze tangible evidences”, “need to examine witnesses through international investigation cooperation”, etc; Defense filed an appeal; but Tokyo D.Ct. turned down the appeal.

On April 22, Tokyo D.P.P.O. indicted Mr. Ghosn for BOT charge; Defense filed a petition for bail, offering similar conditions previously made; a Tokyo D.Ct. judge granted bail on conditions similar to the previous bail conditions plus prohibition of contact with defendant’s wife, because, the judge said, she is one of the related persons with the charge. Tokyo D.P.P.O. appealed from the bail decision; Tokyo D.Ct. rejected the appeal.

On April 25, Mr. Ghosn was released from Tokyo Detention Center, after posting 500 million yen.

On May 9, defense team filed an appeal from the bail condition that prohibits defendant’s contact with his wife as a violation of International Covenant for Civil and Political Rights; Tokyo D.Ct. turned down the appeal; The Supreme Court also turned down the special appeal.

During these detention periods—from November 19, 2018 through January 11, 2019 and from April 4, 2019 through April 22, 2019―Mr. Ghosn was being interrogated by prosecutors everyday, even during weekends and National holidays. Even when Mr. Ghosn and his defense counsel expressed opposition to the interrogation, he was forcibly taken to the interrogation room at Tokyo Detention Center. The timing of interrogations were not fixed and was completely up to prosecutors’ intention: prosecutor would start interrogation whenever he wants and stop when he wants to stop; as for the duration, shortest was less than two hours, while sometimes it was over ten hours. His lawyers were not allowed inside interrogation room.

Pretrial sessions started in May. After 7 months or six sessions at Tokyo D.Ct., we still do not know when the discovery of prosecutor’s evidences---the first phase of pretrial---finishes, nor when the trial begins. Nobody can tell when the trial court announces the verdict, nor how long Mr. Ghosn shall stay in Japan without contacting his wife.

Hostage Justice: How it works
It works backwards: Punishment first, then Trial, and finally Crime.

Mr. Ghosn’s situation is a typical of those who are indicted for criminal charge and do not admit it. Or, you may say he is better situated than ordinary defendants who contest their charges, since most of them are denied bail and shall stay in police jail or detention center until their trial conclude. Having overcome the incredibly bad odds (98% against them)1 and won acquittal, they may have already lost their job, heath and/or family.

The Japanese criminal justice system works just like the world of White Queen in Lewis Carrol’s “Through the Looking-Glass, and What Alice Found There”, Chapter 5:

"That's the effect of living backwards," the Queen said kindly, " it always makes one a little giddy at first.”
" Living backwards!” Alice repeated in great astonishment. " I never heard of such a thing! I'm sure mine only works one way," Alice remarked. "I can't remember things before they happen."
"It's a poor sort of memory that only works backwards," the Queen remarked.
“What sort of things do you remember best?” Alice ventured to ask.
“Oh, things that happened the week after next," the Queen replied in a careless tone, “ For instance, now, there's the King's Messenger. He's in prison now, being punished: and the trial doesn't even begin till next Wednesday; and of course the crime comes last of all."
“Suppose he never commits the crime?” said Alice.
"That would be all the better, wouldn't it?" the Queen said .2

In Ghosn’s case, he was detained for 130 days. Having been bailed-out, he has been and is even living under severe restrictions upon his freedom: his activities are electrically monitored; almost all communications are censored; he cannot meet, talk with, or touch his wife; he still doesn’t know when his trial begins; and prosecutors who indicted him are still searching for evidences for his guilt.


You must surrender your fortune or precious rights in exchange for freedom
Once you are arrested, you are taken in front of a judge within 72 hours. This “initial appearance” is not for bail decision, but for detention order: prosecutor request a judge for ten-day detention order because you may (1) “destroy or conceal evidence” and/or (2) “flee” (Code of Criminal Procedure Art. 60 (2)(3)); the judge almost always (94% )3 grant this request, even though you are a CEO of a big global company or being firmly settled in local community with significant assets. A couple of days before this ten-day detention period ends, prosecutor files a request of ten-day extension, stating “unavoidable circumstances exist” (C.Crim.Proc. Art. 208(2)), and Judge almost always 4 accept this argument, citing circumstances such as “interrogation of suspect is not completed”, “laboratory test results are not provided yet”, “case is complicated”, etc.. So it is fair to say that once you are arrested you are most likely detained for 23 days in prison.

During these 23 days you are under interrogation almost every day, even on holidays, for significant amount of time; you are under pressure to confess to a crime whether or not you actually committed it.
Bail system is non-existent during these 23 days; you may request for bail only after the prosecutor indicts you. And your chance to get bail is not well. If you have not confessed or at least admitted significant part of the alleged crime, your bail request would likely be denied. You must waive your right to remain silent and must speak about charge and confess in order to get out of jail. If you remain silent or deny the charge, you would most likely have to stay in jail, and lose your job or even your family. I will discuss the statistics on bail later.

You have to waive your right to be presumed innocence and admit the charge at trial. If you contest the charge at trial, your detention would be prolonged further, even until the conclusion of the trial, whether or not you did commit the offence you are charged with. You must file a document titled “Defendant’s Intended Allegation (Yotei Shuchou Kisaisho) that explains in detail why you shall not be guilty for the indicted crime. Otherwise, your bail request would be denied, because in this situation judge tends to think “there still exists a possibility of tampering evidence, since the Defendant’s allegation is unclear at the moment”. So, you cannot remain silent about your defense case, if you want to be free before trial begins.

You have to waive your right to confront with and cross-examine the witnesses against you, and must agree with the court to admit written statement of prosecutor’s witnesses such as self-claim victims, eye witnesses, accomplice, etc. in order to get early release on bail. If you contest the admissibility of these hearsay evidences, you are deemed to have a motivation for tampering evidence.

Japanese prosecutors routinely utilize this system so that they can achieve extremely high conviction rate; prosecutors get conviction in 98.1% of all the contested cases 5 .

Hostage Justice System: Why It Can Be in 21st Century Japan

Because Judges like it
Trial judges prefer the defendants be kept in jail until trial begins, because while detained:

1) they tend to waive their right to remain silent and admit their charges, that will make the case easy to dispose,
2) even in contested cases, defendant tend to cooperate to narrow the issues,
3) they also tend to waive their evidential rights and let written statements be admitted, and
4) they will proffer fewer defense evidences.

All these factors will make judge’s case load be manageable. Contrary to this, if defendants are freed on bail, they would likely to contest the charge enthusiastically and enjoy their procedural rights to the fullest extent, which are the basis for a fair trial; all these factors will make judge’s life hard and complicated especially in a system in which judges must work in multiple functions, i.e., interpreter of law, gate keeper of evidences, finder of facts, and author of judgment that shall explain in detail the reasons of their verdicts.

Because the Law is Somehow Ambiguous

“Duty to be interrogated”
Japanese Constitution of 1947 adopted basic human rights, and provides, among many other procedural rights, guaranteed the right to remain silent or right against self-incrimination. The Article 38 section 1 says, “ No person shall be compelled to testify against himself”; and section 2 of the same article “Confession made under compulsion, torture or threat, or after prolonged arrest or detention shall not be admitted in evidence.”

On the other hand, Code of Criminal Procedure adopted by the Diet in 1949 has an ambiguity about interrogations of suspects by police officers and public prosecutors. the Article 198 section (1) provides:

A public prosecutor, public prosecutor's assistant officer or judicial police official may ask any suspect to appear in their offices and interrogate said person when it is necessary for the investigation of a crime; provided however, that the suspect may, except in cases where said person is under arrest or under detention, refuse to appear or after said person has appeared, may withdraw at any time. (emphasis added)

Based on this exception to the proviso that guarantees suspect’s right to refuse interrogation, Japanese police officers and prosecutors claim that suspects under arrest or detention shall have a duty to stay in interrogation room for officers’ questioning. The Ground Bench of Japanese Supreme Court, i.e., 15 Justices, in l999 unanimously said that “the interpretation that the suspect in custody has a duty to be present for interrogation and to stay for interrogation does not necessarily mean that the suspect is deprived of the right against self-incrimination.” 6 This decision apparently implied that obliging suspect to endure interrogation without his or her counsel present is not a violation of right to remain silent guaranteed by Japanese Constitution Article 38 (1).

Therefore, if you are under arrest or detention, upon police officer’s or prosecutor’s request, you have to leave your cell in jail house, be hand-cuffed and waist-roped, be taken to their interrogation room, stay there as long as the officer wants, and answer their questions, without your lawyer present. If you refuse to leave your cell, the officer may use “tangible power” to take you to their interrogation room 7. There were several suspects, having refused to leave their cell, were carried on stretcher to officer’s interrogation room.

Even if you are not under arrest or detention, you are not free from interrogation. According to the proviso to the Article 198 of Criminal Procedure Code which I cited above, you have a right to refuse interrogation and to leave interrogation room at your own will. However, if you exercise these rights, officer may request your arrest warrant, saying that there are reasonable grounds that you may tamper evidence or flee. And it is quite possibly that judge grant the request and issue an arrest warrant. One of my client who was a suspect for simple assault charge of hitting his wife refused to report to police station because the police denied our request for lawyer’s presence inside the interrogation room. Then afterward, a judge issued an arrest warrant as well as detention order 8 .

Even without any warrant, once you step inside the interrogation room, it is almost impossible for you to escape from their questioning. When you stand up and try to get out, police officer may stand in front of you or grab your hand in order to “persuade” you to stay inside the interrogation room. Japanese Supreme Court said this, in its 1976 decision, as exercising “tangible power not amount to compulsory process” that may be used without warrant 9.

Even though Japanese Constitution (art.38(2)) as well as Code of Criminal Procedure (art. 319(1)) deny the admissibility of involuntarily made confessions, it is extremely rare that trial court judges does not admit confessions. For example, one Supreme Court precedence in 1989 held in a robbery-murder case that the confession obtained after a continuous interrogation from 11:30 p.m. until 9:25 pm the next day is admissible, there being no doubt that this confession was voluntarily made, the justices said, since the defendant voluntarily reported to the police station and asked officers to interrogate himself in the beginning and he had never asked to stop the interrogation through out the interrogation process 10.

The Constitution of Japan provides that “at all times the accused shall have the assistance of competent counsel” (Cnst. Art. 37 (3)). This guarantee of basic human right is also very ambiguous. Criminal Procedure Code Article 39 section 3 provides “A public prosecutor, public prosecutor's assistant officer or judicial police official may, when it is necessary for investigation, designate the date, place and time of the interview [with his counsel]”. Fifteen Justices of the Supreme Court of Japan unanimously held this provision constitutional 11.

Thus, prosecutors and police officers may interrogate detained or non-detained suspects as long as they want, even when suspects clearly request stopping it. In Mr. Ghosn’s case, prosecutors continued interrogation of him every day during his detention period including weekend, national holidays, and Christmas day without his counsel present, ignoring his counsel’s written request to stop such interrogations.

“Probable Cause of Tampering Evidence”
The Criminal Procedure Code provides that “request for bail must be granted”, but with several exceptions, one of which is when “there is probable cause to suspect that the accused may conceal or destroy evidence” (C.Crim.Proc.§89（4）). Prosecutors almost always cite this section to oppose the accused’s bail in contested cases. Judges accept it in most of the cases and deny bail request, stating seemingly very abstract reasoning such as “based on the defendant’s statement at investigation stage, there are probable cause to suspect that defendant put pressure upon related persons”. In approximately 20% of contested cases, defendants are granted bail at somewhere until the end of trials, mostly after the completion of witness-examination 12. There is eventually no hope, however, that defendant be released right after the indictment.

In Mr. Ghosn’s case his first and second requests of bail were rejected because, judge stated, “in light of the nature and contents of the cases, defendant’s status as well as relationship with persons involved, and nature of statements made by the defendant and the related persons during investigation stage, there exist reasonable ground to suspect that defendant hamper evidences such as putting pressure upon related persons regarding the facts concerning the charged crime or its back ground” 13.

Because Even Defense Lawyers Use This System
Defense attorneys in this country routinely support this system: they file motion to revoke detention order or bail request based on defendant’s admission of guilt or agreement on admission of prosecution evidence, claiming that this kind of submissive attitude of their clients will vacate “probable cause of tampering evidence”. Ironically, this practice has been and is strengthening current practice of “hostage justice”.

Getting Better?
Since Mr. Ghosn was released on bail, even though he is vehemently contesting the charges, Japanese media started saying that bail has become easier than before. This is wrong.

Let’s Look at Statistics
Let’s take a look at statistics. Figure 2 is made from statistics officially published by the Supreme Court of Japan. This shows the ratio of defendants who were released on bail while their cases be pending at trial courts whether or not they contested charges. In early 1970’s 60% of the defendants were released on bail at some time during the cases were pending at district courts. Since then the ratio continued to decrease. In 2003 it plunged at 12.6%. Then started getting up; now it is about 30%, but still it is a half the ratio in 1970’s.

Japanese judiciary has never published a statistics of bail situation in contested cases; nor of timing of bail out, i.e., when the defendants are released on bail. Recently, however, it unofficially rendered Japan Federation of Bar Associations statistics about bail situation in contested cases. Figure 3 is the percentage of bail granted in contested cases pending at district court from 1984 to 2014. And Figure 4 is the ratio of the defendants who were released on bail before their trial began during the same period.



According to these statistics, until late 1990’s defendants who contested the charge were more likely granted bail than those who admitted their charges. However, this trend became adversely changed, now only 20% of contesting defendants are released on bail sometime after indictment. There is no statistics on how long these defendants must stay in jail before released on bail, while Figure 3 shows only 7% of contesting defendants are released prior to their trial begins. When is the “prior to trial”? Nobody knows; it may be one or two months after indictment or one or more years when lengthy pretrial session reaches its conclusion. It is not uncommon from my experience that contesting defendants be detained more than one year or more.

What about Mr. Ghosn’s Case?
My Client, Mr. Carlos Ghosn, was released on bail after two months of original indictment and after three day of additional indictment before trial begins, even before the pretrial session started. Is this a good sign for humanizing Japanese Justice system?

I don’t think so. As I indicated earlier, Mr. Ghosn lost a lot of freedom and privacy rights in order to get out of jail. He is now under the situation of “house arrest”, or worse, because he even can not live with his wife. This situation is, in a sense, a result of our defense strategy. I invented this strategy some 25 years ago; applied it only four cases including current one. I succeeded in getting my clients out on bail in all these cases where my clients were seriously fighting the charges. In these cases, I was staying with my clients in a hotel or apartment; I employed my clients as a clerk who must stay at my office from 9:00 am till 5:00 pm, etc. I called this strategy “substitute prison (Daiyo Kangoku)” in which I, a defense counsel, must play a role of prison warden.

Mr. Ghosn has already been punished for one year now, and still doesn’t know when his trial begins. And, when will his “crime” come? Well, I would say it will probably never come. I wonder if you can say, like the White Queen, "that would be all the better, wouldn't it?”

Notes:

1 Supreme Court of Japan, Annual Judicial Report: Criminal Case in 2018 (Shiho Tokei Nempo (Keijihen) Heisei 30), Tables 21 and 31: 106 out of 4,846 defendants who contested charges got acquittal verdict.

2 Lewis Carrol, Alice’s Adventures in Wonderland & Through the Looking Glass, and What Alice Found There (Macmillan, 2009), pp193-194.

3 Supreme Court of Japan, supra note 1, Table 15: Judges of Summary Courts and District Courts, in the year of 2018, granted 98,544 out of 104,713 requests for detention.

4 There is no judicial statistics, but the Prosecutorial Statistics in 2018 (Kensatsu Tokei),Table 18-00-44, shows 62,554 out of 62,741 (99.7%) extension requests were granted.

5 Supreme Court of Japan, supra note 1, Tables 21, 39. Out of all criminally charged persons (49,811) disposed by all district courts in the year of 2018, 5,619 defendants contested charges, and 5514 of them were found guilty.

6 Sup. Ct. GB, Decision, Mach 24, 1999 MINSHU53-3-514.

7 Tokyo DCt. Decision, June 22, 1984 KeisaiGeppo16-5/6-504.

8 He was indicted for simple assault and detained for more than 100 days without bail. See, Takashi Takano, The Miranda Experience in Japan, in Malcolm M. Feeley, et. al., ed. The Japanese Adversary System in Context (Palgrave, 2002), 128, 134-136.

9 Sup, Ct. 3rd Petty Bench, Order, March 16, 1976, KEISHU 30-2-187.

10 Sup. Ct. 3rd Petty Bench, Order, July 4, 1989, KEISHU 43-7-581.

11 The Supreme Court Grand Bench, supra note 6.

12 Unpublished statistics released by the Supreme Court of Japan to Japan Federation of Bar Associations on conditions that it be circulated only within the Bar Association.

13 Tokyo Dst.Ct. Criminal Division 8, Order, January 17, 2019 (unpublished).