Mr. Ghosn Has Gone: A Comparative Analysis of Japanese and French Law
Professor, Chuo Law School
Area of Specialization: Criminal Law
This work was supported by JSPS KAKENHI Grant Number 15K03220. (Public Relations Office)
At the end of 2019, Carlos Ghosn fled to Lebanon in violation of Japanese bail restrictions. Ghosn criticized Japan's criminal justice system, claiming "I have not fled justice―I have escaped from injustice." In a press conference at the beginning of the year, he asserted his situation had resulted from a combination of that and other factors, including a conspiracy at Nissan and malicious indictments for alleged false statements on a securities report and breach of trust.
In this article, I will discuss the individual points of his criticisms and examine them, comparing French law and Japanese law.
An arrest in Japan is based on an arrest warrant issued by a judge. The judge acts after the investigating agency has presented evidence demonstrating probable cause to believe that the suspect committed a crime, and that there is a risk of concealing or destroying evidence of the crime. When, as in the case of Ghosn, the prosecutor arrests the suspect and believes that further detention is necessary, the prosecutor will request the judge to detain the suspect within 48 hours. The judge will listen to the suspect's statement regarding the charge and decide if a detention is necessary. The detention period is 10 days; however, the judge may extend it for 10 more days if there are compelling reasons. Requirements for detention of the accused after prosecution are the same as those for detention of a suspect, but the detention period is two months from the date on which the prosecution's case was filed. The court may renew the detention period monthly, upon providing specific reasons. An accused who is released on bail is required to comply with conditions set by the court.
A police officer in France has the power to hold a suspect in custody when the officer concludes there are reasonable grounds to believe that the suspect has committed a crime and that detention is necessary to prevent destruction of evidence. This is called "garde à vue." This restraint period is 24 hours. An additional 24 hours may be allowed with permission from the prosecutor. At the investigation stage, conducted by the investigating judge (juge d'instruction) or at the trial stage, a judge can set compliance rules (contrôle judiciaire). The accused is obliged to observe those rules for the purpose of securing appearance or preventing reoffending. The residence of the accused may be fixed, and s/he may be required to wear a GPS device. Nevertheless, the accused can be detained (détention provisoire) when a judge finds that such measures are not sufficient to alleviate the risks. The detention period depends on the level of the crime. For example, for breach of trust, the period is in units of four months with a maximum of one year.
In Japan, except for arrest "while crime is ablaze," investigating authorities cannot hold suspects in custody based solely on their own decisions. That means, the equivalent of "garde à vue" doesn't exist. Nevertheless, French media have interpreted "arrests" in Japan as "garde à vue" because it happens at the investigation stage. Some writers have even misused the term when referring to detention of a suspect in Japan.
Ghosn was detained for about 130 days, a period that was widely criticized as being too long. However, it is not longer than detention in France. According to one study, the average detention in France lasts 266 days, with a median value of 229 days . Criticism was also heard about bail conditions in Japan that did not allow Ghosn to meet freely with his wife. They were sometimes described as inhumane. Yet preventing the destruction of evidence is also a ground for detention in France, and prohibition of contact with a specific person is included in the compliance rules there.
Interrogation and right to counsel
Ghosn claimed he was questioned eight hours a day without the presence of defense counsel. He also said he was told, "If you don't make a statement against yourself, things will only get worse for you." The Tokyo District Public Prosecutors Office disputed his claims, stating the average time of interrogation was less than four hours a day, and that defense counsel met him almost every day except Sundays. The prosecutors said they interrogated him about 70 days out of his approximately 130 days of detention. Moreover, they contend they did not coerce him to make an incriminating statement.
In Japan, the investigating agency is required to inform a suspect of the right to remain silent prior to the interrogation and to provide information about the right to counsel. However, a suspect does not have a right for counsel to be present during interrogations.
In France, the presence of defense counsel during interrogation is allowed at the garde à vue stage as well as during any preliminary examination conducted by the investigating judge. I believe Japan should adopt similar rules. But the point is, why should defense counsel be present during interrogation? At the trial stage, the accused is guaranteed a position as a party to the proceedings, and the right to counsel is a prerequisite of a fair, adversarial trial. Prior to that, at the investigation stage, defense counsel also has an important role: ensuring the suspect's right to remain silent is upheld during the interrogation, which is conducted behind closed doors.
In Japan, a fierce clash of opinions between investigating authorities and the bar association has been waged over this matter. The bar association believes that suspects are under psychological and physical duress when undergoing custodial interrogation. It maintains that such duress is used to coerce suspects to make incriminating statements. On the other hand, investigating authorities believe that approving the presence of defense counsel would make it difficult to obtain sufficient statements from suspects. That, they fear, would undermine the function of interrogation. As a compromise, laws were amended in 2016 to require audio and video recording of interrogations, thus enabling objective verification of actual interrogation conditions. In this way, Japan has implemented measures to ensure the right to remain silent. As the interrogations of Ghosn were recorded in audio and video, a review of those recordings would reveal the actual conditions under which they were conducted.
The 2016 amendments also established a type of plea bargaining system as a method for circumventing investigative methods that rely mainly on confession. It is said this system was used to obtain evidence against Ghosn. Nonetheless, if claims made by Ghosn prove to be true - namely that prosecutors used pretrial detention in an attempt to obtain an incriminating statement from him, the prosecutors would be deserving of severe censure. Use of such tactics in an investigation would not only be a violation of the Code of Criminal Procedure in regard to detention and interrogation, it would also contravene the very purpose of introducing the plea bargaining system.
Conviction rate and presumption of innocence
Japan has a conviction rate that exceeds 99%. This has caused many people to conclude that the principle of presumption of innocence is not working or that a fair trial cannot be anticipated in Japan.
In Japan, investigations are carried out by administrative agencies - namely police officials and prosecutors. At the time of indictment, the prosecution's evidence is not presented to the court. The accused is also not required to offer proof of innocence. It is the duty of the prosecution to offer evidence that the defendant committed the crime charged and to convince the fact-finder, beyond a reasonable doubt, that the defendant is guilty. If the prosecutor fails to provide proof beyond a reasonable doubt, the accused is, naturally, found not guilty. Japanese trial proceedings are conducted in compliance with those rules of the burden of proof: the presumption of innocence. The pretrial detention of a suspect or defendant, however, is irrelevant to that principle. Furthermore, it goes without saying that the various disadvantages borne by the suspect or defendant due to detention are not "punishment."
In France too, the principle of presumption of innocence is described as a rule that imposes the burden of proof on the prosecutor. If the court is not convinced that the accused is guilty, the judgement must be "in doubt, for the accused (in dubio pro reo)." However, French criminal proceedings are designed so that the judge/court plays central role in finding the truth. In serious cases or complicated economic cases, a preliminary examination is conducted by an investigating judge. If a formal trial is deemed necessary, the case will be referred to a trial court.
Trial proceedings begin with the presiding judge, who has examined the dossier of the case, informing the accused of the charged facts. Perhaps because of such a procedural structure, an amendment to the Code of Criminal Procedure in 2000 added a preamble to strengthen the principle of the presumption of innocence. This preamble states, "Suspects and accused individuals are presumed to be innocent until proven to be guilty. Acts violating this presumption are prevented in accordance with law, and the damage caused by such violations shall be restituted." And the Civil Code provides for an injunction etc. against acts such as media reporting that presents a suspect or accused as guilty. Based on his awareness of such provisions in French law, it is understandable that Ghosn surmised that the Japanese prosecutors leaked information, and that his belief that the deck had been stacked led him to profess innocence at a press conference. Nevertheless, the principle of presumption of innocence in Japan was in effect and would have been applied in the trial.
The conviction rate in France is about 93% to 94%. This is lower than in Japan. However, it is neither logical nor scientific to use these numbers as a basis for stating that the principle of presumption of innocence functions in France but fails to function in Japan. In Japan, about 60% of the cases that go to prosecutors are not indicted. More than 20% of the cases are tried by summary procedures. Ultimately, only about 8% of the cases go to trial. The high conviction rate in Japan may be a result of prosecutors only pursuing those cases in which they believe the accused can be proven guilty based on sufficient evidence. The high conviction rate itself is not a synonym for an unfair trial.
- ^ Vaney, La détention provisoire des personnes jugées en 2014, INFOSTAT JUSTICE Numéro 146, Décembre 2016. The number of days in detention for not serious crimes. The number of days is longer for serious crimes.
- ^ The number of days in detention can be calculated as part of the prison sentence, and individuals who are detained and acquitted can claim their compensation.
- ^ In the 2011 amendment, the final paragraph of the preamble also had a clause which states the following: "A person must not be found guilty based on the sole proof of a confession obtained from the person when that person did not have the opportunity to meet with defense counsel and receive advice."
- ^ Références Statistiques Justice, Ministère de la Justice, Année 2018.
- ^ White Paper on Crime 2019.
- Ryo Ogiso
Professor, Chuo Law School
Area of Specialization: Criminal Law
- Ryo Ogiso is a professor in the Chuo Law School. He was born in Nagano Prefecture. He graduated from the Department of Law in the Chuo University Faculty of Law in 1984 and completed graduate work in the Doctoral Program in the Chuo University Graduate School of Law in 1991. He assumed his current position after serving as a full-time Instructor in the Komazawa University Faculty of Law and as an Assistant Professor in the Chuo Law School. He served as the Dean of Chuo Law School and is currently an examiner for the National Bar Examination, a temporary member of the Legislative Council of the Ministry of Justice (working group on penal provisions for sex crimes etc.), and a member of the board of directors of the Criminal Law Society of Japan. His current research theme is comparative study of criminal procedure in France, England, the US, and Japan. His written works include Code of Criminal Procedure Learned from Text of the Law (Hougakushoin, 2015).