Former Nissan CEO Carlos Ghosn bashed the Japanese legal system during a press conference he held last week to defend his decision to jump bail and flee Japan, highlighting some long-held criticisms of the nation's legal system. 

Ghosn, who was facing four white-collar charges in Japan, including underreporting his salary and transferring personal financial losses to Nissan's books, was particularly critical of Japan's pretrial detention methods. After his arrest in November 2018, he said he was interrogated for up to eight hours a day by Japanese authorities and was not allowed to have lawyers present.

"I was presumed guilty before the eyes of the world and subject to a system whose only objective is to coerce confessions, secure guilty pleas, without regard for the truth," he said.

This is not the first time such allegations have been made about the Japanese criminal justice system, where conviction rates and confessions are remarkably high. But much less attention has been paid to reforms of the system that are gradually being put in place.

"Reform of the justice system is broadly supported by the Japan Bar Association and Japanese legal scholars," said Edo Naito, a Tokyo-based corporate governance consultant and a U.S.-trained lawyer. "The weaknesses in our system are well known."

The question now is what kind of impact will Ghosn's public condemnation of Japan's legal system and his made-for-Hollywood escape from the country have on those reforms?

Criticisms and Reforms

In an April 2019 article in The Japan Times, Naito wrote about four areas in the current legal system that need to be addressed. He said questioning without an attorney present should be prohibited; he argued that the current maximum 20-day detention period should be reduced; he said new charges should not trigger an extension of detention; and he asserted that bail conditions should recognize technologies such as ankle monitors.

"Prosecutorial discretion and power has moved out of balance with protection of the rights of the accused," he said.

But Naito also noted that criminal justice reforms have been making their way into the system over the past 15 years. For example, granting defendants bail was historically very rare in Japan. But over the past decade, the number of people released on bail has tripled. 

In addition, Japan implemented a system that enables lay citizen judges to check prosecutorial discretion. The panel can request that the prosecutor's office bring charges in the absence of action on the prosecutors' part, said Naito. If rejected, they can then make a second request that prosecutors must follow. 

The most famous application of that process took place when criminal negligence charges were brought against three executive officers of Tokyo Electric Power related to the Fukushima nuclear disaster.

Other reforms include an increase in instances of the court rejecting prosecutors' warrants. And the recording and videotaping of interrogations are now done more frequently for serious crimes.

Response to Ghosn's flight

Reforms aside, the Japanese public is well aware of the criticisms of their criminal justice system and Ghosn's description of his solitary confinement and repeated questioning by prosecutors without a lawyer during his months in detention had won him some public sympathy. But Japan has an exceptionally low crime rate and is a nation that holds a deep respect for rules and order. Sympathy for Ghosn has waned since his escape.

Last week, responding to Ghosn's remarks from Beirut, Japan Justice Minister Masako Mori said in a press conference held in Japan that the oft-cited statistic that over 99% of those charged with a crime in Japan are eventually convicted — many after confessing — reflects the fact that prosecutors only indict suspects when there is a high likelihood of winning a court case.

And Tokyo's deputy chief prosecutor, Takahiro Saito, said that Ghosn's assertions "unfairly insult our country's criminal justice system and are absolutely unacceptable." 

Ghosn also lost support in the Japanese media after his dramatic escape.

"The defendant Ghosn insists he escaped political persecution … but traveling abroad without permission is against the conditions of his bail, and mocks the Japanese justice system," the Tokyo Shimbun wrote.

Ghosn's impact 

Naito doesn't expect Ghosn's flight to reverse the trend toward reform of Japan's criminal justice system. In some ways, it could propel them along, he said. To date, Japan has not used electronic monitoring devices such as GPS wrist or ankle bracelets, for example — something that now may change. 

"There has been a great deal of discussion on TV news panels and the media in Japan around the court's failure to use readily available technology when there is serious flight risk and financial capability to flee," he said.

But Ghosn's spectacular escape may not have a positive effect on some of the reforms that have been made.

In keeping with the trend toward bail leniency, the Tokyo District Court in March granted Ghosn $9 million bail over the objections of prosecutors. His lawyer made personal assurances that Ghosn was not a flight risk, even taking custody of his passports.

Although a $9 million bail seems high, the courts now may decide to impose substantially higher bail amounts in the future for wealthy individuals accused of crimes.

"Japan's naiveté and lack of experience in dealing with a jet-setter defendant were pretty obvious," Naito said. 

And defense attorneys will likely be less willing to assert that their clients will never flee. 

"I would suspect they will be much more reluctant to make those personal commitments to the courts in the future," Naito said.

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