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A photographer sits outside the Tokyo Detention House where Carlos Ghosn is being held.    © AP
Cover Story

Ghosn scandal puts spotlight on Japan's judicial system

French media and former Japanese prosecutor slam "irrational" treatment of executive

TOKYO -- Carlos Ghosn's dramatic arrest and lengthy detention in a tiny Tokyo cell has sparked outrage in France -- and thrown a spotlight on Japan's infamously opaque criminal justice system.

Ghosn, who has French as well as Brazilian and Lebanese citizenship, was arrested as he arrived at Haneda Airport on Nov. 19 on suspicion of understating his compensation on company filings to the Tokyo Stock Exchange. Within days he was ousted as chairman of Nissan Motor and Mitsubishi Motors, though he remains chairman and CEO of Renault, the third leg of the automotive alliance he led for nearly 20 years.

French media and politicians have been blistering in their criticism of Ghosn's treatment, with many in France speculating that Nissan staged a "coup" to remove the Brazilian-born executive.

"Japan may be a democracy, but this procedure is totally out of balance in terms of defendants' rights," weekly news magazine Le Point wrote on Nov. 21. "This treatment is intolerable from the point of view of French law."

Other media outlets have raised questions about the events leading up to Ghosn's downfall. "It is interesting that we have never heard of all these criticisms," daily newspaper Le Figaro noted. "It is as if a lid has suddenly been removed." Les Echos wrote that there is conjecture in France that Ghosn's arrest was a "coup d'etat plotted by Japanese."

Finance Minister Bruno Le Maire addressed the issue at a press conference on Nov. 21, saying that France is a "state under the rule of law" and values "respect for the presumption of innocence."

Le Maire also said he and Japanese economic minister Hiroshige Seko reached an agreement while the latter was in Paris "that it was preferable that the shareholdings [of the alliance] remain as they are and the rules of governance already set do not change."

Seko has denied any such agreement had been reached.

Ghosn is being held at the Tokyo Detention House, most likely in a cell measuring about 5 sq. meters. Meals at the institution consist largely of rice and barley, and suspects are allowed to meet only with their defense lawyers, though international treaties allow for consular officials to visit foreign nationals.

In Japan, a suspect can be held for up to 23 days after being arrested without being charged with a crime. After that, prosecutors must either file charges or release the suspect.

Leading Ghosn's defense is Motonari Otsuru, a former Tokyo prosecutor known for bringing down maverick entrepreneur Takafumi Horie and shareholder activist Yoshiaki Murakami.

While Nissan has also accused Ghosn of misappropriating company funds and misrepresenting the company's investments, prosecutors have only mentioned the relatively less serious accusation that he understated his remuneration. Legal experts say this approach fits with a common strategy by Japanese prosecutors to initially focus on the charge that seems most likely to stick.

Condemnation over Ghosn's treatment has also come from within Japan, including from Nobuo Gohara, a former prosecutor who now runs a law firm.

"There is a very large question mark over the validity of his arrest," Gohara said at a press conference on Nov. 26.

"The arrest was done in a very hurried way, without a thorough examination of the validity of evidence and only mentioning 'executive's remuneration,'" he added. "Tokyo prosecutors' actions seemed very violent and lacking in any rationale."

Gohara also questioned whether Japan's newly introduced plea bargain system was, in fact, being used.

"Plea bargaining is used only when some particular person knows about the crime. If numerous Nissan executives who are privy to securities reports knew about it, there is no longer room for the system to be applied," he said. "This seems to me more like a deal between Nissan executives and prosecutors to make Ghosn solely responsible for the underreporting of his remuneration."

Gohara also slammed Japan's prosecution system as a whole. "The conviction rate in Japan is 99.9%, meaning once you are charged, you are almost certain to be found guilty, as the power of prosecutors is very large. This is a critical problem of Japanese criminal procedure."

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