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Experts question court's refusal to release ex-Nissan Chairman Carlos Ghosn on bail

Former Nissan Motor Co. Chairman Carlos Ghosn (Mainichi)

TOKYO -- The rejection by the Tokyo District Court on Jan. 15 of the bail application by former Nissan Chairman Carlos Ghosn's legal team made prosecutors seeking his continued detention relieved, although some experts are questioning the court decision.

The court apparently struck down the request fearing the possibility that the former Nissan chairman would destroy evidence by coordinating stories with others involved in the case if he were to be released. He has been in detention for 57 days since his initial arrest on Nov. 19 last year and subsequent indictment on charges that include aggravated breach of trust under the Companies Act.

"In the case of aggravated breach of trust, the testimony and perception of those involved comprise important evidence. (The judge in charge) must have determined that there was a realistic risk of destruction of evidence," a judge who is not involved in the case surmised.

The Code of Criminal Procedure states that courts will not grant bail if there is "probable cause to suspect that the accused may conceal or destroy evidence" when released. In the past, it had been believed that a defendant's denial of charges automatically meant that they would destroy evidence. There was a tendency, therefore, to deny bail in such cases, prompting many criminal attorneys to dub the practice as the "hostage justice" procedure.

One case handled by the special investigation unit of the Tokyo District Public Prosecutors Office in which the defendant was detained for a long period was the influence-peddling scandal involving then House of Representatives legislator Muneo Suzuki, who was held for 437 days from 2002 to 2003. Another is that of Takafumi Horie, then president of IT company Livedoor Co., who was arrested on suspicion of securities fraud, and was held for 95 days in 2006.

In recent years, however, there has been a growing trend to scrutinize whether the risk of evidence destruction is realistic, as shown by the Supreme Court's rejection in 2014 of a request to detain a defendant in a public molestation case.

The percentage of cases in which a defendant's bail request was granted rose from 15.6 percent of all criminal cases in 2008 to 32.5 percent in 2017. Ghosn's case attracted attention amid this overall trend.

Special investigators at the Tokyo District Public Prosecutors Office, who argue that Ghosn "had used Nissan as if it were his personal property," indicted the former company chairman on Jan. 11 on various charges, including violation of the Companies Act. They are continuing their probe, seeking investigative assistance from Middle Eastern countries in determining what happened to the several billion yen that flowed from the automaker to dealerships and others in the region. That prosecutors have been unable to obtain a response to their request for investigative assistance is believed to be one of the reasons they opposed Ghosn's latest bail application.

"We were unable to predict what (the court's decision on bail) would be this time, but I would say a rejection of the request is the commonsense decision," said a relieved senior prosecutor.

Meanwhile, Akira Goto, a professor of criminal law at Aoyama Gakuin University Law School, questions the grounds for denying Ghosn's request for bail. "The former chairman's claims were made clear at the (Jan. 8) hearing for an explanation for his continued detention. If those tied to Nissan have accepted plea bargains, there's little leeway for the former chairman to create a new story and conceal or destroy evidence," Goto says.

According to Goto, when an appeal against detention by defense attorneys is rejected, the court's decision is very unlikely to change unless there's a new development in the case. Ghosn's detention, he estimated, "might last further, until when points of contention have become fixed in pretrial conference procedures."

--- Ghosn's bail rejection again faces int'l criticism

The Tokyo District Court's rejection of Ghosn's latest bail request was reported widely in Europe and the U.S. as breaking news. The Agence France-Presse (AFP) news agency stated that the court's decision indicated that it was likely that the 64-year-old auto industry business leader was going to be detained until his trial begins, and that his lawyers said it was possible it could be six months before the hearings start. AFP also pointed out that international criticism of Japan's justice system, in which once someone is indicted, they can be detained for long periods of time until their trial begins, was rising.

Meanwhile, at a regular press conference Jan. 15, chairman of the Japan Business Federation (Keidanren), Hiroaki Nakanishi, pointed out the need to review the practice of long-term detention of criminal suspects in Japan. Responding to criticism from overseas toward Ghosn's drawn-out detention, Nakanishi said, "Foreign criticism should be taken with an open mind," after saying that the issue is "completely separate from what he did." Nakanishi also said there is a "need to recognize the fact that Japan's way of detaining people for a long time is being rejected by the common sense of the global community."

(Japanese original by Naotaka Ito, Masanori Makita and Kim Suyeong, City News Department; Hojin Fukunaga, Foreign News Department; and Mikako Yokoyama, Business News Department)

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