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Carlos Ghosn and the law

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Via Financial Times

Carlos Ghosn’s audacious flight from Japan to Lebanon has stunned authorities in Tokyo. The former Nissan chairman was awaiting trial there on charges of financial misconduct, which he denies. Japan has since obtained an international request for Mr Ghosn’s arrest via Interpol, the global police co-operation body, according to Beirut. Interpol and Tokyo have not commented on the so-called “red notice” request.

Here is what the Interpol action means for Mr Ghosn’s future:

What is an Interpol red notice and what force does it have?

A red notice seeks the location and arrest of a suspect, with a view to extradition or a similar process. Interpol’s red notices are not arrest warrants, so they do not place member countries under an obligation to detain the targeted person. States will not do so if they argue the case is politically motivated or if extradition is impossible to the country seeking the arrest, because no legal arrangements are in place. Red notices are not supposed to be issued — and, if already in force, may be cancelled — if they are found to breach Interpol’s own rules, which forbid “any intervention or activities of a political, military, religious or racial character”.

How often are red notices issued against “white collar” crime suspects?

Lawyers say there have been an increased number of red notices issued in recent years against business people, some in matters that may be commercially or politically motivated. In one high-profile case, Bill Browder, the international investor, was briefly arrested in Madrid in 2018 on a red notice requested by the Russian authorities. He was released within hours after Interpol said he was “not wanted”, suggesting Spanish police might have detained him on the basis of a previous request from Moscow that was later scrapped by the global police body. Mr Browder denies any wrongdoing and says the Russian pursuit of him is politically motivated.

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What are the chances of Mr Ghosn being arrested?

Mr Ghosn is probably safe in Lebanon, which has no extradition treaty with Japan. He should also be able to travel to France, where he also holds citizenship. Paris last week confirmed that it does not extradite French nationals as a matter of principle.

Japan is further hindered because it has bilateral extradition treaties only with the US and South Korea — the mirror image of its general reluctance to extradite its own citizens. Countries may extradite without a treaty, but this is relatively rare in many states.

Another potential obstacle for Tokyo is the common requirement in many countries for proof of “dual criminality” — that the offence Mr Ghosn is accused of in Japan is also an offence in the country of his arrest — and for assurances his trial would be fair. The former car chief’s legal team would be likely to strongly dispute both these points.

Does that mean Mr Ghosn can travel freely?

The former Nissan chairman cannot resume globetrotting with total confidence. There will be a risk of some sort to him when he crosses many borders, as Interpol has 194 member countries — most of the world. All national law enforcement agencies make sovereign decisions and are governed by domestic rules. Japan is also party to some multilateral treaties with provisions on extradition, such as the United Nations Convention against Transnational Organized Crime and the United Nations Convention against Corruption.

Were he to be arrested in a country he visited, he would face the immediate prospect of inconvenience, costs and possible detention. He would then presumably legally challenge the attempt to extradite him. Even were he to be successful, this could take time. There is also the danger for him that countries where legal systems lack safeguards or political independence could decide to send him to Japan, whatever the arguments he were to mount against the process.

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Could Mr Ghosn be tried in another country?

Not impossible but unlikely: French prosecutors are conducting investigations into Mr Ghosn’s activities, including on a Renault sponsorship of the Palace of Versailles that allowed Mr Ghosn’s use of the venue for a party, at an estimated cost of €50,000. Mr Ghosn has offered to pay back the money. He could be tried if charges were brought. Then France would have to apply to extradite Mr Ghosn from Lebanon, unless Mr Ghosn agreed to stand trial.

Additional reporting by Jane Croft in London

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