In an extraordinary twist, the special investigation squad of the Tokyo District Public Prosecutors Office has arrested former Nissan Motor Co. Chairman Carlos Ghosn for a fourth time over alleged financial misconduct. Bringing a defendant who had been released on bail into custody once again is an unusual move, so what was going behind the scenes in the investigation?
"Diverting hundreds of millions of yen for personal use is a case that merits imprisonment," a senior prosecutor said of the reasoning behind Ghosn's arrest Thursday. "There was plenty of concern that evidence could be tampered with or the defendant might flee."
The latest arrest stemmed from suspicions swirling around the so-called Oman route, in which Nissan funds that reached a dealership in Oman were then sent in several installments to a Lebanon-based investment firm that Ghosn, 65, allegedly effectively owned. Suspicions also have surfaced that some money flowed to overseas companies in which Ghosn's wife and son had management roles.
The hurdles to establishing the facts are even higher for a case that took place overseas, where Japanese authorities lack jurisdiction. If the investigation continued while Ghosn remained at his Tokyo residence, details of some evidence would be conveyed to Ghosn's side during the questioning process, and it was impossible to dispel concerns that evidence might be tampered with or people involved in the case might arrange beforehand to tell the same story.
It also was unclear just to what extent Ghosn would continue to submit to voluntarily questioning. Soon after Ghosn's arrest, his lawyer, Junichiro Hironaka, said if there had been a request for Ghosn to submit to questioning, he "intended to answer what should've been answered." However, a compulsory investigation could be considered the "predetermined policy" for the special investigation squad as it seeks to unravel the Oman route that involved repeated and complex money movements.
A series of twists and turns
Even so, it is highly unusual for the special squad to rearrest a defendant who has been freed on bail. This is because a court granting bail to a defendant that the squad is investigating over additional alleged crimes is in itself unusual.
Furthermore, when the special squad investigates a case involving many people, there is a tendency for detention of defendants who have denied charges against them to be extended after their indictments out of consideration for the influence they could have on the case, among other factors. Prosecutors did not expect Ghosn, who had steadfastly maintained his innocence, would be granted bail so soon.
Ghosn's second arrest arose from suspicions he had violated the Financial Instruments and Exchange Law. In this case, the Tokyo District Court rejected the prosecutors' request for an extension of Ghosn's detention. In 2017, a mere 0.3 percent of prosecutors' requests for such extensions were completely dismissed.
While a series of unusual developments have unfolded in this case with regard to Ghosn's detention, the court's decisions appear to follow the trend of recent years. According to the Supreme Court, 9 percent of defendants who insisted they were innocent were released on bail before a first hearing of their trial in 2016 -- about double the figure in 2005. The proportion of prosecutors' requests for detention extensions that are turned down rose to 5.9 percent in 2018, more than five times the 2008 figure.
"The tendency of courts to strictly check the merits of detaining [a suspect] will continue," a veteran criminal judge said. A lawyer who was a former senior prosecutor also suggested that in cases in which a suspect is arrested multiple times in a case investigated by the special squad, it could become more common for the suspect to be repeatedly detained and released on bail, similar to what has happened to Ghosn.
Criticism could flare again
At a press conference Thursday, Hironaka took a swipe at the investigation by touching on the fact that Ghosn had been granted bail. "It had been confirmed there was no concern he would flee or destroy evidence, so arresting him is unfathomable," Hironaka said.
The decision on whether to grant bail is made based on the extent of concerns a defendant might flee or tamper with evidence. But if there is suspicion a crime has been committed, an arrest will in principle be approved unless it can clearly be argued this is unnecessary. Concerns that evidence might be destroyed must be judged separately for fresh suspicions that could lead to an arrest aside from the facts of the original indictment. "The judgment criteria for an arrest don't change even if someone is out on bail," a criminal judge said.
Even so, this latest arrest of Ghosn brings its own risks for prosecutors. This case involving the repeated arrest of the "charismatic business executive" has been closely watched overseas. Foreign media outlets have criticized Japan's justice system, in which Ghosn has been arrested several times and questioned without a lawyer present, as "hostage justice" in which a criminal suspect is detained and pressured to confess. There also are fears this criticism could be rekindled, especially overseas.
At a regular press conference Thursday, Shin Kukimoto, deputy chief prosecutor at the Tokyo District Public Prosecutors Office, was asked by a French media reporter, "Don't you care at all about international public opinion?" Kukimoto replied, "We humbly listen to such criticism, but the duty of prosecutors is to clarify the truth when there has been a crime."
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