Daniel Halliday
Jan 14, 2019 · Last update 1 yr. ago.

Following the Carlos Ghosn case should Japan review its criminal justice system?

As Ghosn remains in pre-trial detention into the New Year and prosecutors further the investigation, the Japanese criminal justice system is coming under increasing criticism internationally regarding the treatment of Ghosn. The former Nissan chairman, accused of various instances of financial misconduct, has been granted limited access to legal representation and no access to his family as an increasing number of charges mount to prolong his detention while the investigation continues. Following the conclusion of this case should the country consider reviewing its criminal justice system? bbc.com/news/business-46859444
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Many reforms are needed prior to Japan’s criminal justice system
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An unusual system in need of reform
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Justified for case such as this
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Many reforms are needed prior to Japan’s criminal justice system

Following the release of Ghosn on bail it is important to take into consideration the actions of key associates of Ghosn’s such as Jose Munoz, described as a key person of interest who suddenly resigned from Nissan following the probe and refused to cooperate with the investigation. Events like this seem to indicate some guilt or knowledge of his associates, indicating an environment of normalised corruption, something we can also see in practices such as the widespread under-reporting of tax in many large multinational corporations. Japanese courts may arguably be in need of limited reforms, but other areas of Japanese society are in much greater need of reform, so reforming a functional legal system in a country with a fairly low overall crime rate is probably not the most efficient path of reform here.

The Japanese criminal justice system gained an equal amount of attention as Ghosn himself as this historic case played out, but the Japanese criminal justice system is more misunderstood than in need of reform. Japan is ranked 9th globally on World Justice Projects Criminal Justice Index, just behind the Scandinavian countries, Austria and Germany. Comparatively it is actually quite a fair system, it is complicated but not much different from the US, but it is exactly these complications have led to misunderstandings. The often cited 99% conviction rate in Japan is one such misconception, as it combines cases that are contested and go to trial with all other prosecuted cases that do not go to trial, the majority of cases, creating an eye-catching but misleading statistic. In fact the conviction rate of cases that go to trial is not that different from the US, 83% compared to Japan's 96%, conviction rates remain high in both countries, but not all that different.

However corruption probably needs more desperate attention, issues surrounding government, press freedom, corruptive societal influences and systemic corrupt business practices are widespread not only in Japan but globally. While corruption is on the whole fairly low in Japan, small scale corruption and political corruption remain regional issues, while high profile cases of bribery and informal payments remain common and on going. Likewise the dominance of one party in Japan's national governance landscape, and a controversial government-media relationship raises more questions around how truly transparent a system Japan really has on a macro level. Surely there are many more pressing avenues of reform in Japan than criminal justice.

japantimes.co.jp/news/2019/01/12/business/nissan-expands-carlos-ghosn-probe-countries-ousted-chairmans-deputy-comes-scrutiny/#.XDw1SFUzapp worldjusticeproject.org/rule-of-law-index/global/2020/Criminal%20Justice thediplomat.com/2020/03/carlos-ghosn-and-japans-99-conviction-rate factsanddetails.com/japan/cat22/sub146/item799.html news.yahoo.com/exclusive-japan-businessman-paid-8-035015638.html bloomberg.com/news/articles/2019-07-18/japan-is-a-one-party-state-again-and-voters-are-fine-with-that

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Daniel Halliday
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DH edited this paragraph
However corruption probably needs more desperate attention, issues surrounding government, press freedom, corruptive societal influences and systemic corrupt business practices are widespread not only in Japan but globally. While corruption is on the whole fairly low in Japan, small scale corruption and political corruption remain regional issues, while high profile cases of bribery and informal payments remain common and on going. Likewise the dominance of one party in Japan's national governance landscape, and a controversial government-media relationship raises more questions around how truly transparent a system Japan really has on a macro level. Surely there are many more pressing avenues of reform in Japan than criminal justice.

An unusual system in need of reform

The Japanese criminal justice system is unlike many other systems around the world, being originally based on the German and French criminal justice but having been reformed various times since it was adopted. Japan’s criminal justice system has a massive 99% prosecution rating, similar to authoritarian countries like Russia or China, and prosecutors can detain suspects for 23 days without charge, as they have done in Ghosn’s case, multiple times. The system has gained criticism internationally following Ghosn arrest; the Japanese government should show some effort to reform the criminal justice system further and remove police reliance on forced confessions.

In fact forced confessions following long stints of pre-trial detention, coupled with judges being pressured by central bureaucracy to find suspects guilty, are systemic and exactly why Japan has established such a high rate of conviction. In this way even if Ghosn had confessed it would have been widely viewed as such an example of a forced confession due to prolonged psychological pressure and confinement, and may have led to diplomatic issues internationally. Ghosn’s lawyer has called the Japanese criminal justice system a “hostage justice system”, adding that “the case of Carlos Ghosn has highlighted how outdated this system is” [1].

Ghosn has described this whole thing as a corporate coup and maintains his innocence, but in a system of forced confessions that have often led to innocent parties pleading guilty, this was unlikely to be taken seriously and would have complicated this historical trial even further. A number of cases have landed innocent people in jail for extended periods of time in Japan, such as the case of Keiko Aoki, accused of burning her house down with her daughter in it as part of an insurance scam. Keiko claimed that confusion, exhaustion, and the guilt of not being able to save her daughter following prolonged and aggressive interrogation from police were the reason she confessed, she has since been released in a rare case of re-trial. Such methods have become commonplace in a system that relies on confession as Japanese police are not allowed to use plea-bargaining, undercover operations or wire-tapping, confessions have become their modus operandi. The Ghosn case has shed light on this and criminal justice in Japan is in need of reform.

[1] apnews.com/a9dfa2e614c041748ad629a726212ee1 japantoday.com/category/crime/japan-guilty-until-proven-innocent-documentary-shines-light-on-controversial-legal-system bloomberg.com/opinion/articles/2018-12-06/carlos-ghosn-s-arrest-and-the-backlash-to-japan-nissan aljazeera.com/ajimpact/ghosn-saga-strongly-nissan-ceo-200107171027050.html

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Daniel Halliday
Apr 2
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DH edited this paragraph
The Japanese criminal justice system is unlike many other systems around the world, being originally based on the German and French criminal justice but having been reformed various times since it was adopted. Japan’s criminal justice system has a massive 99% prosecution rating, similar to authoritarian countries like Russia or China, and prosecutors can detain suspects for 23 days without charge, as they have done in Ghosn’s case, multiple times. The system has gained criticism internationally following Ghosn arrest; the Japanese government should show some effort to reform the criminal justice system further and remove police reliance on forced confessions.

Justified for case such as this

The case of underreporting and misusing corporate assets against Carlos Ghosn is a special situation in which a foreign national has probably stolen large sums of money from a Japanese company through a complex network of convoluted international transfers and shell company investments. Judges and prosecutors feared Ghosn fleeing the country, or worse trying to interfere with this elaborate system that will count as evidence against him, effectively destroying evidence that could incriminate him, which lead to multiple rearrests and longterm pre-trial detention. In this case the Japanese court and prosecutors are making a specific decision to ensure justice is served for such a high profile crime carried out by a intensely well resourced individual. Therefore the Japanese criminal justice system is justified in this case, and actually more lenient than many systems internationally. It is this leniency that was eventually exploited by Ghosn when he fled Japan in December 2019.

The media's comparison of Japan's criminal justice system to China and Russia simply based on the country's high conviction rate is unjustified without explaining why, it is an efficient system rather than the draconian system hinted at in this comparison. Japan's high prosecution rate is thought to be due to both the elimination of the jury system in 1943 and the high standards prosecutors and police work by, concentrating on confessions and bringing only the most obviously guilty defendants to trial. Even the US system is seemingly more harsh and ineffective when you look at their treatment of inmates and their wrongful conviction rate. The reasoning behind the statistics and how the system works is more important than just taking the statistics at face value and assuming bureaucratic pressure to convict must be the reason behind the high conviction rate.

Furthermore Japan reformed their criminal justice system in 2016, introducing mandatory video recording of police interrogations, allowing defendants to bargain, allowing suspects private communications, as well as new measures to protect witnesses and victims. Due to this and Ghosn fleeing from Japan it is clear that suggestions to reform Japan's criminal justice system were premature. These unusual measures to deny Ghosn specific contact were taken in light of the possibility of Ghosn trying to sway the case or flee if released, and these measures were temporary as he was released on bail multiple times before fleeing the country. Subsequently his fleeing, similar investigations in France, and Interpol's issuing of an international arrest warrant for Ghosn clearly indicates his guilt and undermines calls for reform in Japan's criminal justice system.

bbc.com/news/business-50952335 en.wikipedia.org/wiki/Criminal_justice_system_of_Japan#Conviction_rate loc.gov/law/help/criminal-justice-system-reform/japan.php aljazeera.com/ajimpact/ghosn-saga-strongly-nissan-ceo-200107171027050.html washingtonpost.com/opinions/the-cost-of-convicting-the-innocent/2015/07/24/260fc3a2-1aae-11e5-93b7-5eddc056ad8a_story.html bbc.com/news/world-europe-50972149

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Daniel Halliday
Apr 2
Approved
DH edited this paragraph
The media's comparison of Japan's criminal justice system to China and Russia simply based on the country's high conviction rate is unjustified without explaining why, it is an efficient system rather than the draconian system hinted at in this comparison. Japan's high prosecution rate is thought to be due to both the elimination of the jury system in 1943 and the high standards prosecutors and police work by, concentrating on confessions and bringing only the most obviously guilty defendants to trial. Even the US system is seemingly more harsh and ineffective when you look at their treatment of inmates and their wrongful conviction rate. The reasoning behind the statistics and how the system works is more important than just taking the statistics at face value and assuming bureaucratic pressure to convict must be the reason behind the high conviction rate.
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