Carlos Ghosn. Picture: REUTERS/MOHAMED AZAKIR
Carlos Ghosn. Picture: REUTERS/MOHAMED AZAKIR

Tokyo — Long before fallen automotive titan Carlos Ghosn fled trial in Japan and launched an attack on the country’s justice system from afar, another foreign businessman found himself at the mercy of Tokyo’s powerful public prosecutors.

Steven Gan, a US citizen who had run a debt-collection business in Japan for more than a decade, faced allegations in 2004 that he was not legally qualified to do so. When a prosecutor threatened him with more thajapan a year of pre-trial detention, the American said he quickly agreed to sign a series of confessions and apologies.

“It’s not an issue of whether you are innocent or guilty, it’s that they will force you to confess so as to maintain that 99% conviction rate,” Gan said in a phone interview from his home in the US, where he returned after receiving a suspended sentence. The Tokyo District Prosecutors’ office declined to comment on individual cases.

Allegations of a “rigged” system by the former chair and CEO of Nissan and Renault have prompted a flurry of government statements and press conferences aimed at defending Japanese justice. Earlier this week, the Japanese justice ministry sent a notice to media saying it had set up new websites in Japanese and English to explain the country’s judicial system.

A history of convictions being overturned, often after false confessions, shows the system doesn’t always work and that prosecutors have used prolonged detentions to break the will of suspects. Yet few in Japan question a legal framework Justice minister Masako Mori credited with keeping crime rates among the lowest in the world. Rather than calling for reforms, many lawmakers are urging a clampdown to prevent any further escapes.

Basic rights

“Japan’s criminal justice system sets out appropriate procedures to clarify the truth of cases and is administered appropriately, while guaranteeing basic individual human rights,” Mori said in a January 5 statement. “There is no room to justify the flight by a defendant who has been released on bail.”

In media appearances since he skipped bail and flew to Lebanon, Ghosn has blasted everything from extended pre-trial detention to interrogations without a lawyer present, prosecutors’ failure to hand over evidence, and the long wait before the start of his trial. Many of these practices are banned in the US and other countries, and have been criticised by the UN Committee against Torture.

“I was sure I would never get a fair trial and feared I would die in Japan,” Ghosn wrote in an opinion piece published in the Financial Times this week.

Prime Minister Abe Shinzo has been largely silent in the affair, making his first public comments on Ghosn’s escape Thursday and saying it was “regrettable” that he left Japan illegally.

Miscarriage of justice?

Arrested in November 2018 and charged with financial crimes, Ghosn spent a total of almost 130 days in jail. The former executive, who has denied all allegations, was freed on bail last year under strict conditions, such as not being able to communicate with his wife and only allowed the use of a computer at his lawyer’s office.

“There are as many wrongful convictions as grains of sand on the beach,” said Akira Kitani, a retired judge who handed down an unusual 30 not-guilty verdicts during the course of his career on the bench.

The National Registry of Exonerations in the US details 2,542 convictions overturned since 1989, or about 85 a year. Twenty-six people were completely exonerated in Japan in the same period, according to the its supreme court.

Actual rates of wrongful conviction are harder to pin down. There is arguably less effort to uncover such cases in Japan than in the West — the country’s version of the US Innocence Project, which works to exonerate the innocent, operates on a shoestring budget.

I don’t blame Carlos Ghosn for escaping.  Not in the slightest
Steven Gan, US citizen and former Japan detainee

“I can’t say whether there are many or not, but the issue is that the conditions that can lead to wrongful convictions haven’t been completely resolved,” said Shiori Yamao, a former prosecutor turned opposition lawmaker. “The biggest problem is that you don’t get released unless you admit wrongdoing.”

Many experts say Japanese prosecutors are too powerful. In his book, The Japanese Way of Justice, David T Johnson, a professor at Hawaii University, said it is “difficult to find a state agency — inside Japan or out — that wields as much power,” as the country’s prosecutors.

It’s less obvious whether that authority leads to more unfair verdicts than in other developed nations. While some say Japan’s conviction rate of more than 99% is evidence of a problem, others argue this is largely the result of prosecutors choosing to indict only for cases they are sure to win.

“It’s not as if prosecutors have some god-like ability always to be right,” former judge Akitani said. “You have to make decisions based on the idea that they could be wrong.” Many Japanese judges never find anyone not guilty, he said. Japan’s supreme court said it has no statistics on decisions by individual judges.

Rule of law

Japan is undoubtedly freer from crime than most countries — the US city of Baltimore, with a population of about 600,000 people, has more reported homicides in a year than the whole of the world’s third-largest economy, which has a population of some 126-million. Just 40 people are incarcerated per 100,000 people in Japan, compared with 655 in the US.

Recent innovations, including video and audio recording of interrogations have strengthened the position of defendants, but many experts say more is needed to prevent the false confessions on which convictions are sometimes based.

Early bail hearings should be required to rein in lengthy detentions, and the accused should be allowed to have a lawyer present during questioning, according to Edo Naito, a retired international business attorney who has lived and worked in Japan for more than 40 years.

“If Japan addresses these flaws, the justice system would be seen as superior to many of its peers,” Naito said, while warning that “like all bureaucracies, the ministry of fustice tends to resist changes.” Naito added that his analysis of recent high-profile cases involving Japanese and foreign corporate executives did not indicate any discrimination against non-Japanese. Harsher treatment instead occurred where crimes involved major frauds and were thought to have enriched the defendant, he said.

Masahiko Shibayama, a lawyer turned lawmaker for Japan’s ruling Liberal Democratic Party, prioritises placing stricter checks on people leaving the country, and wants penalties to be introduced against those who skip bail.

“Ghosn’s case could damage Japan’s reputation by giving the impression that if you have money you can escape the law,” Shibayama said. “This would be a clear blow to our national interests.”

Debt collector Gan, who wrote a book about his experiences, said his case left him “a broken man”, forced to rebuild his life in the US. “I don’t blame Carlos Ghosn for escaping,” he said. “Not in the slightest. Who wants to go through a system that’s completely stacked against you?”

Bloomberg