Japanese Criminal Legal System as Seen Through the Carlos Ghosn Case

The following is a guest post by Sayuri Umeda, a senior foreign law specialist who covers Japan and various other countries in East and Southeast Asia. Sayuri has previously written posts for In Custodia Legis on various topics, including Disciplining Judges for “Bad Tweets”, Engagement under Japanese Law and Imperial House Rules, Is the Sound of Children Actually Noise?, How to Boost your Medal Count in the Olympics, South Korean-Style, Two Koreas Separated by Demilitarized Zone, and many more.

According to a news article’s headline, former Nissan chairman Carlos Ghosn’s arrest in Japan on November 19, 2018 shocked the auto industry. As Ghosn has been detained in Tokyo for several weeks, the Japanese criminal legal system has been discussed and criticized by Western media.  This post describes Japanese law concerning detention and interrogation.

1. Arrest and Detention

Mr. Ghosn was arrested on charges of financial misconduct on November 19, 2018.  A brochure of the Supreme Court of Japan, Outline of Criminal Justice in Japan 2016, briefly explains the Japanese criminal justice system.  The Constitution of Japan (1946) requires the issuance of a judicial warrant specifying the alleged offense as a condition for an arrest. (Constitution art. 33.)  Under article 199 of the Japanese Criminal Procedure Code (CPC), “sufficient probable cause to suspect that an offense has been committed by a suspect” is also required for an arrest.  When a prosecutor arrests a person, the prosecutor must “immediately inform the suspect of the essential facts of the suspected crime and the fact that the suspect may appoint defense counsel.” (CPC art. 204.)

Mr. Ghosn was taken to a detention center after the arrest.  On November 21, 2018, in response to the prosecutors’ request, the Tokyo District Court ordered Mr. Ghosn’s detention for ten days.  The CPC states that, if necessary for the investigation before filing charges, the prosecutor may request a judge to detain the suspect within 48 hours from his or her physical restraint for a period of ten days. (Id. arts.207 & 208, para. 1.)

Mr. Ghosn’s detention was extended for ten days on November 30, 2018.  When a prosecutor requests extension of the detention to a judge, and “when a judge deems unavoidable circumstances exist, the judge may extend the period” up to ten additional days. (Id. art. 208, para. 2.)

Mr. Ghosn was formally charged with financial misconduct on December 10, 2018.  At the same time, the prosecutors arrested Mr. Ghosn, again, for underreporting his income and requested that he be detained based on the new allegation.  The judge approved the new detention on December 11, 2018.

The prosecutors requested extension of the second detention, but the judge “unexpectedly turned down” the request on December 20, 2018.  Then, prosecutors arrested Mr. Ghosn for aggravated breach of trust  under the Companies Law on December 21, 2018.  According to Japanese media, prosecutors planned to arrest him for this charge when the extended detention expired.  However, after the extension of detention had been turned down, they had to arrest him earlier than planned to keep detaining Mr. Ghosn in order to prevent him from contacting his former subordinates and influencing them.  The court allowed the detention for the new charge for ten days on December 23, 2018. The detention was further extended for ten additional days on December 31, 2018.  There was no break between the three detentions.

2. Bail

After the likely additional indictment on January 11, 2019 and the expiration of the third detention period, Mr. Ghosn would possibly not be immediately released because a court can detain a defendant if there is probable cause to suspect that the defendant may flee or conceal evidence. (CPC art. 60.)  When a suspect is indicted while being detained, the detention automatically continues. (Jokai Keiji Soshoho [Commentaries on Articles of CPC], at 567 (Koya Matsuo ed., 2016).)

When the grounds or necessity for detention no longer exists, the court must rescind the detention upon request or by virtue of office. (CPC art. 87.)  The defendant, his/her lawyer or family member can request the court that the defendant be released on bail. (CPC art. 88.)  Bail must be granted unless there is probable cause to suspect that the defendant may conceal or destroy evidence, or under other specified circumstances. (CPC art. 89.)

3. Interrogation

The way interrogation is conducted in Japan is different as compared with the U.S.  In Japan a public prosecutor may interrogate a suspect, and when the suspect is under detention, he/she cannot refuse to appear or withdraw from the interrogation room. (CPC art. 198, para. 1; see also sec. 3 of summary of 1993 (O) 1189 (S. Ct., Mar. 24, 1999),)

The Constitution states: “[N]o person shall be compelled to testify against himself.” (Constitution art. 38, para. 1.)  The CPC further provides  that  “[t]he suspect must, in advance, be notified that he/she is not required to make a statement against his/her will.” (CPC art. 198, para. 2.)   While in the U.S., after a suspect invokes the right to remain silent, investigators must stop asking questions, in Japan investigators can keep asking questions. (Summary of 1993 (O) 1189, supra.)

There is no clear limit on time and duration of interrogation by prosecutors.  The police officers are subject to a regulation that states that investigators must avoid long time or late night investigation unless there is a compelling reason to do so. (Crime Investigation Standards, National Public Safety Commission (NPSC) Regulation No. 2 of 1957, amended by NPSC Regulation No. 11 of 2018, art. 168, para. 3 (in Japanese).)  Another NPSC regulation restricts interrogation between 10PM and 5AM and interrogation for more than eight hours per day in the absence of advanced approval. (Regulation on Supervision for Appropriate Interrogation, NPSC Regulation No. 4 of 2008, art. 3, para. 2 (in Japanese).) These are regulations for police officers, not for prosecutors. However, if the interrogation is prolonged, the accused can argue that his or her confession, made after unacceptably long interrogation, is a forced confession that is prohibited by the Constitution, and is inadmissible. (Constitution art. 38, para. 2.)

The Constitution states that “[a]t all times the accused shall have the assistance of competent counsel.” (Constitution art. 37, para. 3.)  However, this does not mean that his/her attorney can be present in the interrogation room.  Investigators usually do not allow attorneys’ presence during interrogation of detained suspects. (Ministry of Justice, Material for Anti-Monopoly Act Examination Procedure Discussion (4th) (2014) (in Japanese)).

In Japan, a written statement of a suspect during interrogation is not written by the suspect, but the investigator. (CPC art. 198, para. 3.)  The suspect can inspect the statement or the investigator reads it to the suspect for verification. (Id. art. 198, para. 4.)  The investigator asks the suspect to attach his/her signature and seal to it if the suspect affirms correctness of its contents.  The suspect can refuse to do so. (Id. art. 198, para. 5.)  The statement is written in Japanese, and even if the suspect cannot read it, if he/she agrees to its correctness through a translator, the investigator would ask the suspect for his signature and seal it. (Criminal Cases in Japan – Q&A, Nakamura International Criminal Defense LPC).

Different model?

As explained above, the criminal investigation systems in Japan and the U.S. are different.  In response to criticisms by foreign reporters at a press conference on November 29, 2018, Shin Kukimoto, the deputy head of the Tokyo prosecutor’s office stated: “I do not criticize other countries’ systems just because they are different.” For an article explaining the difference of models of criminal justice systems of Japan and other countries see Daniel H. Foote, The Benevolent Paternalism of Japanese Criminal Justice, 80 Calif. L. Rev. 317 (1992).