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article imageCrime and punishment: Ghosn case puts spotlight on Japan justice

By Richard CARTER, Ursula HYZY (AFP)     Apr 4, 2019 in World

The high-profile case of former Nissan boss Carlos Ghosn, with its multiple twists and turns, has thrown a spotlight on the Japanese justice system, criticised by some as overly harsh and reliant on confessions.

Ghosn was dramatically re-arrested at dawn on Thursday over fresh allegations of financial misconduct, less than a month after winning bail to fight three formal charges.

- What next for Ghosn? -

Following his dawn arrest on Thursday, prosecutors now have 48 hours to question him.

At the end of this initial period, they can apply to the court for a further 10-day period of questioning.

Ghosn could be spending more time at the detention centre in northern Tokyo
Ghosn could be spending more time at the detention centre in northern Tokyo
Toshifumi KITAMURA, AFP/File

After this, they can request another 10 days, bringing the total time in initial custody without formal charges to 22 days. Over this time, no lawyers are present during questioning.

At this point, prosecutors have three choices.

They can release the suspect without charge.

They can press formal charges, which kick-starts a two-month period of pre-trial detention, renewable by one month at a time by appeal to the court.

Or they could decide to re-arrest him over further allegations, effectively restarting the clock.

Japanese prosecutors often "hold back" allegations to give themselves more options.

In this latest case, the initial allegations relate to funds allegedly transferred between 2015 and 2018, but authorities are reportedly also looking at funds from 2012.

This suggests they may be reserving further allegations for a possible fifth re-arrest.

- What about his bail? -

Ghosn emerged on bail wearing a bizarre disguise
Ghosn emerged on bail wearing a bizarre disguise
Behrouz MEHRI, AFP/File

On March 6, Ghosn won bail of one billion yen (around $9m). This surprised many observers as most suspects in Japan do not win bail unless they have confessed to the alleged crime.

But with the fourth re-arrest, prosecutors have effectively returned the case to square one and his lawyers will be able to apply for bail only when formal charges have been pressed -- most likely in 22 days.

The money from his first bail will not be returned to him yet and he would have to stump up additional cash if he sought a second bail. The funds are returned only at the end of a trial.

Questions were raised over his bail conditions when an account in his name tweeted an announcement of a news conference, despite Ghosn being forbidden from using the internet. His lawyer Junichiro Hironaka insisted he was within his rights.

- When can we expect a trial? -

Ghosn's former lawyer said it would take at least six months for the case to come to trial, given the complexity and multi-national nature of the accusations, as well as the need to translate all evidence and documents.

Hironaka however gave an even longer timescale, predicting his client "will be remaining in Japan for a year or a very long time."

Junichiro Hironaka  Ghosn's lawyer  said any trial could take a long time to organise
Junichiro Hironaka, Ghosn's lawyer, said any trial could take a long time to organise
Kazuhiro NOGI, AFP

Hironaka has also said that any further arrest -- which has now happened -- would further delay any trial.

Trials are often drawn-out affairs in Japan. Two years passed between the initial arrest and the trial of Mark Karpeles, head of the failed cryptocurrency exchange MtGox.

A final decision in Ghosn's case could take even longer, as appeals can be pursued all the way up to the Supreme Court.

- How are charges investigated? -

A key part of Japanese prosecutorial strategy involves extensive interrogation of suspects that experts say is intended to extract a confession.

Great weight is still put on confessions in Japan, while many parts of the world have reassessed how valuable the tool is.

Ghosn appeared in court to plead his innocence
Ghosn appeared in court to plead his innocence
JIJI PRESS, JIJI PRESS/AFP/File

They are a key weapon in the arsenal of prosecutors, who enjoy a 99.9 percent success rate at trial.

Critics sometimes describe the Japanese justice system as "hitojichi shiho", or a "hostage-based justice system".

Amnesty International has accused Japan's justice system of creating an environment of "aggressive interrogations" that "risk producing forced confessions and false convictions".

Ghosn's former lawyer denied reports that his client has been pressured to sign a confession in Japanese, a language Ghosn does not speak.

A justice ministry official told AFP that seeking a confession was not the focus of an investigation and intense questioning was one of the only tools at their disposal.

In other countries, authorities have recourse to wiretaps, subpoenas or undercover investigations, the official said.

"Generally speaking, Western or other countries have more means of investigation than we do."

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