an arrest, an escape, and questions about justice in Japan
Carlos Ghosn’s dramatic escape from Japan to Lebanon last week has raised many questions over how he pulled off such an audacious act, but his motives are not in doubt. With four months to go before his financial misconduct trial was due to begin, the net was closing in on the former auto executive, and he knew it.
Nissan’s one-time saviour had not been permitted to speak to his wife over Christmas, and was disturbed by news that Japanese prosecutors had questioned his son and daughter in the US in early December. For Ghosn, according to sources close to him, it amounted to an attempt to force him to confess.
Throughout the 13 months he spent in custody or living in Japan under strict bail conditions, including 24-hour surveillance of his home, Ghosn used every opportunity to set the tone for what would have been Japan’s most closely watched white-collar trial in years.
From his initial arrest moments after he stepped off a private jet in Tokyo in November 2018 and his re-arrest on three additional charges of financial misconduct, to his detention and bail conditions that prevented him from seeing his family, 65-year-old Ghosn has portrayed himself as a victim – of “backstabbing” Nissan colleagues determined to loosen his grip on the company, and of Japanese justice itself.
It is unlikely Lebanon will extradite him – Ghosn holds Lebanese, French and Brazilian passports – or act on an Interpol “wanted” notice issued by Japan on Thursday. It means we will probably never know if the charges of financial misconduct and breach of trust brought against him stand up to legal scrutiny or whether, as he has repeatedly claimed, they were part of a conspiracy hatched by disgruntled colleagues and prosecutors seeking a mighty corporate scalp. A second trial against Ghosn, the former chair of the powerful Renault-Nissan-Mitsubishi car manufacturing alliance, had also been scheduled for April next year.
Whatever the truth of his escape – hiding inside a musical instrument case or, as Japanese media reports, simply walking out of the front door of his home – Ghosn is now a fugitive from Japanese justice.
While the cancellation of his trial will spare the country unwanted scrutiny of its treatment of criminal suspect months before the summer Olympics in Tokyo, experts warn that chastened prosecutors and courts could take a harder line against future defendants.
Ghosn’s escape is likely to halt or even reverse a trend of recent years towards granting bail in more cases, according to Colin Jones, a law professor at Doshisha University in Kyoto.
“I would expect it to be more difficult for foreign defendants to get bail,” Jones said, adding: “Ghosn was subjected to de facto punishments – including detention and the loss of contact with family members – as well as reputational damage that suspects and defendants receive before a trial or even a prosecution has begun. That is despite the supposed presumption of innocence, and the additional de facto punishments received by those, like Ghosn, who persist in asserting their innocence.”
Ghosn’s position – supported by his allies in France, where he has citizenship, and in Lebanon, his ancestral home – is that the trial was a foregone conclusion as soon as prosecutors levelled their first charge and trapped him inside a legal system that delivers guilty verdicts in more than 99% of cases that go to court. The subsequent charges enabled prosecutors to seek court permission to extend his detention and interrogate him for several hours a day without his lawyer present.
There are four charges against Ghosn, relating to accusations that he under-reported his salary in financial documents and used Nissan funds for his personal benefit.
When he wasn’t being questioned, he was confined to a 7.5 sq metre cell containing fold-up bedding, a toilet, a bookshelf, a low table and a sink. Ghosn, who suffers from a kidney condition, was later transferred to a larger cell with a bed.
Soon after he arrived in Beirut, Ghosn delivered a blistering attack on the system he appears to have outwitted. “I am now in Lebanon and will no longer be held hostage by a rigged Japanese justice system where guilt is presumed, discrimination is rampant, and basic human rights are denied, in flagrant disregard of Japan’s legal obligations under international law and treaties it is bound to uphold,” he said in a statement.
Railing against his detention was a theme Ghosn – speaking through his lawyers and his wife, Carole – returned to several times during his 129 days, served over two periods, at the imposing detention centre in Kosuge, eastern Tokyo. His lengthy incarceration sparked international criticism of Japan’s “hostage justice” system, which permits powerful prosecutors to re-arrest suspects over separate allegations and keep them in detention for long periods with the aim of extracting a confession.
“Since the decision to grant him bail has proven a terrible mistake from the Japanese perspective, I would expect there to be less openness to foreign criticism,” said Jones. “By apparently burning his defence lawyers in the process, there probably won’t even be much sympathy from the Japanese defence bar, even though they have been eager to use foreign criticism of the system they have to work in.”
If Japan’s legal establishment was stung by the negative publicity, it was roundly humiliated by Ghosn’s escape. “This case raises the extremely serious issue of whether it’s all right to continue the trend toward bail leniency,” Yasuyuki Takai, a former prosecutor, told the state broadcaster NHK. “The legal profession and lawmakers need to quickly consider new legal measures or a system to prevent such escapes.”
Only Ghosn will be able to offer a definitive account of his escape when he speaks to the media in Beirut on Wednesday. While he has indicated that he is reluctant to share anything that might incriminate the people who helped him flee, few will be satisfied with anything less than a blow-by-blow account.
But there will be questions, too, for the people he left licking their wounds in Japan. For the police, who have begun retracing his apparent escape route from his residence in Tokyo to an airport more than 300 miles away; for the immigration officials whom he apparently evaded; for the defence lawyers he betrayed; and for the prime minister, Shinzo Abe, who will surely come under pressure to explain how a man at the centre of Japan’s biggest corporate scandal for years was able to embarrass his erstwhile hosts to such devastating effect.