Japanese Justice Faces Scrutiny in Case of Nissan Chief and U.S. Board Member

It sounds like the Japanese system treats white-collar criminals with a degree of contempt that the US system reserves for non-white(-collar) criminals.

Hah this sounds like what my father endured starting in December of 1941 and for 14 months thereafter. Only a lot worse. Our family had resided in Yokohama for over 50 years, attending school, living, doing business, observing the laws of the land, and charitable works. Why they chose him as an "enemy alien" remains a mystery to this day. According to his later account, he was interrogated during nighttime hours, returning to his cell after his food had been removed, he was strapped into a wide leather belt to which his wrists were tightly bound, interrogated with only a Nissei translator in attendance, and when he fainted buckets of cold water thrown over him. As they would not feed him, we were obligated to make a daily trip to provide his sustenance which was mostly consumed by the guards before it even reached his cell. There's more...

As a former 35 year employee of Nissan, I can tell you that both employees and dealers were not enamored of Ghosn’s leadership and that there were a number of issues that raised concern. Regarding Kelly, it was well known that he was his hatchet man. All the recent press has yet to address some of these concerns. Reporting has been superficial at best. Let’s see where the chips fall.

I applaud the Japanese legal system that treat rich and poor suspects alike. Remember many years ago, the world was surprised by the Japanese police who arrested Paul McCartney who possessed a small amount of marijuana in his suitcase while he entering Japanese for a concert. Indeed Mr. Gosen committed something criminal but he would not get into trouble if not for other cultural reasons. Even though Gosen did much to revive Nissan and made it competitive again, his high pay and lavish lifestyle never sat well with lots of Japanese business establishment. The arrest is the result of an internal power struggle to take the power back to the Japanese management's hand who think Gosen is too pro-Frence in Nissan's negotiation with Renault. Gosen's case shows that it is difficult for any foreigner who work for a Japanese company, even one as high up as Gosen. Japanese eventually will show you whi is the boss.

A real difference from USA is that Japan treats all suspects, same, foreign or not. Our legal system is pretty much a fee for good treatment system; i.e. - more often than not if you are accused and have money for lawyers, you play the system. If not, you stay in the system. Money rules here in the US, and this president is here to make sure of it - at least for himself...

While it may be appealing to criticize our system for criticism's sake, no matter how you slice it, questioning witnesses without a lawyer is abhorrent. And, I might say, disproportionately favors the wealthy and educated who can learn beforehand how to talk to detectives. The impetus for representation is to protect those without the educational resources to defend themselves.

You forget to mention how many accuseds in the US pressurisedly confess in "plea bargaining" argreements confronted with the threat of high prision sentences by prosecutors. It seems to very often create guilty-ones when the facts seem to be bendable in front of jurors, or when its on the edge if a conduct falls onto a criminal law's measure.

Makes one wary of travel to Japan on business or pleasure.

It is also important to know whether there is a "right to silence" during police questioning. For example, in the Netherlands, even before the recent reform, a suspect had the right to consult with a lawyer before questioning, and the lawyer in many cases would advise a client to refuse to answer questions, as was his right. At the next stage, before an examining magistrate, the suspect again would have the right to remain silent, but would in any event have his lawyer present to assist during the questioning. It is also important to know whether a trial court, judge or jury, may draw adverse inferences of guilt from an accused person's silence during questioning. In the UK at common law no such adverse inference at trial was permitted, but the legislature changed the position, and such inferences may now be drawn, in tightly defined circumstances and after careful judicial direction of the jury. Even so, critical commentators, particularly in the academy, argue that this compromise solution nonetheless violates the accused person's fundamental privilege against self-incrimination, for an accused might feel pressure to answer questions in the fear that otherwise the court could draw an adverse inference of guilt at his trial. I believe that in the US, because of the Fifth Amendment, the right to silence is absolute, and a jury may not rely on silence, either during police questioning or at trial, to convict.

Japan's judiciary is essentially a weapon to help the government and corporations maintain control. Japanese judges and lawyers are complicit in keeping the system opaque and closed to outsiders. Due to ridiculously strict requirements, Japan has a total of only about 30,000 lawyers - the same number as the state of Missouri. This is by design, since the small pool of lawyers are more vulnerable to pressure from influential groups. Foreigners are barred from becoming lawyers. Japanese lawyers representing non-Japanese clients understand that they may represent a foreign client once in a lifetime, but they have to work with Japanese judges, the opposing side's lawyers and Japanese clients on a daily basis. By representing foreign clients, they risk alieniating these parties. Many will refuse to represent foreign clients citing conflict of interest. Even when they accept foreign clients, they are under tremendous pressure to undermine and sabotage them by not giving them proper legal representation. There is no such thing as attorney-client privilege, so anything a foreign client tells their lawyer gets disclosed to the opposing side. Other corrupt and unethical aspects of the Japanese judicial system include intentionally mistranslating documents, intentionally misinterpreting foreign plaintiffs, defendents and witnesses, and tampering and destruction of documents and other evidence in order to help the Japanese side (by the courts and even by the foreigners' own lawyers).

What this piece does not make clear is that there is clearly a different standard in Japan when dealing with foreigners. Hundreds of Japanese executives have been implicated in significant financial wrongdoing, including illegal accounting practices, large-scale falsification of financial documents and data manipulation at dozens of large Japanese companies over the last couple of decades. A partial list follows. Yet, not a single Japanese executive at any of these companies has been treated in a way that is even remotely close to the horrific treatment of Ghosn. - KYB and Kawakin Holdings: The two Japanese makers of shock absorbers for buildings seperately disclosed in one week that they had falsified data on the quality of their shock absorbers since at least 2003 (2018) - Toray Industries Inc: The company admitted to falsifying quality test data in a 149 cases between 2008-2016 (2017) - Mitsubishi Materials: Company admitted to product data falsification at three subsidiaries for products used in crucial parts of aircraft and cars (2017) - Kobe Steel: Falsified strength and durability data for its products at 23 domestic and overseas plants going back years (2017) - Nissan Motor: Recalled more than a million vehicles because of falsified quality control checks (2017) - Subaru: Falsified quality control data (2017) - Mitsubishi Motors: Caught yet again for falsifying fuel economy tests (2016) - Suzuki Motors: Admitted to falsifying records (2016) Contd....

The story leaves me a feeling that Japanese legal system assumes suspect guilty before proven innocent. That is very troublesome. It reminds me how Chinese legal system operates. I hope I am wrong.

This article does a good job describing the different rights of an accused (of means) in different countries. Others have correctly pointed out that access to legal council while in detention during the pre-trial period also depends strongly on one's resources. However, the article gives shot shrift to the other area of Japanese justice that deserves scrutiny: how unusual is this apparently harsh treatment of Mrs. Ghosn and Kelly compared to other, Japanese corporate executives. The Olympus scandal mentioned was an exception, and only investigated after the (US born and new) then CEO just wouldn't shut up about the fraud that had gone for at least a decade. So, my question is this: how many CEOs of larger Japanese companies have been prosecuted by Japanese authorities, and how long, on average, did they stay in jail while the prosecution built their case. Don't get me wrong: I think it'd be great if Japan is really tough on white-collar crime regardless of where they are from and how well they are connected within Japan, Inc. But, I don't recall TEPCO executives being investigated and held in jail while prosecutors looked into their culpability for the largest nuclear contamination disaster (Fukushima) since Cernobyl, so hmm. Absent evidence for an even-handed, tough on all approach, I'm afraid this is mostly a power play for control of Nissan, with the Japanese justice system assisting Japan Inc.

@John of Hartford, and others: If I recall correctly, Mr. Ghosn was in trouble decades ago with VW. I mean, who would continue to hire a person with such a bumpy record? I’ll bet other car companies “down the road” will hire him, as well—potholes and all.

Did they change the legal system in Japan since Ghosn took the job? He knew the legal system when he moved to Japan to extend his wealth and fame. By his actions he seemed to think he was above the law. Sound familiar? Greed is an interesting trait. For people that have the obsession, it doesn't seem to matter how much they have, they still want more. $50 million is not enough, they lust for more!!! People unwilling to play by the rules, must be willing to suffer the consequences. In America if you rob a bank and steal $5000 you get 20 years. If you develop a corporate scheme to steal $50 million, you get 20 days. The 2008 Mortgage Crisis comes to mind.

The answer to Kukimoto san's wondering is yes sir, it is appropriate. In the same way that recently a killing the Saudi journalist was widely criticized by non-Saudi's. A system where 90% of detainees end up confessing reminds of other systems which are widely criticized. I do not know the North Korea statistic, imagine it is in the same range.

Great that, unlike the US, wealthy defendants ar treated like ordinary defendants.

I would have more respect for Japan if the yakuza gangsters were prosecuted for their open criminality.

“we have the greatest respect for the autonomy of individuals.” This has been throughout its long history and still is, an alien concept in Japan where it should read instead: “we have the greatest respect for authority”!

Yes i believe its appropriate to criticize The Japanese Justice system not because it is different but because the conditions of detentions for White Collar criminals border psychological torture in order to get them to confess. Ghosn & Kelly were clearly the victims of an internal Nissan putsch or a coup. How come the Japanese authorities are siding with Nissan but not with Ghosn & Kelly? Playing the cultural card is not convincing.Countries who treat women and men in an unhumane manner often use the fallacious pretext of cultural differences to justify their appalling ways.

This article compares the way moneyed defendants are treated in US with Japan. The great majority- more than 90%- of ordinary criminal suspects are questioned without a lawyer. Ordinary criminal suspects are routinely lied to and otherwise coerced to make confessions. Of course, we would never treat a millionaire like that. Not sure that makes us better than Japan.

Japan is a society with xenophobic tendencies. One cannot help but wonder if latent xenophobia is at play here. It is worth pointing out that the board of Renault, having assessed Mr Ghosn's financial renumeration, have decided not to suspend him from the company board. Stating that any activities did not contravene French domestic law.

The key difference is that corporate criminals are treated as criminals and are not given a get out of jail free pass as they are in many English speaking Western Democracies. Bravo to the Japan, France and Germany for exposing the lie that the rich are too rich to face criminal justice.

Thank you Motoko Rich and Jack Ewing for the good background reporting. I do miss the French view in this story. How does French Government look at this case when the suspect is the key person in charge of Europe's leading car manufacturer? It is not clear what type of pressure or (psychological) torture is applied? Every country constructs its own justice system. In an evolving world the system needs to be adjusted when human developments occur. There is no sign that regular Japanese citizen are overly concerned with the current justice system (Japanese majority resigned long ago about anything politics and focused on consumerism). It is great to see NYT reporting the difference between Japan and Western democracies when it comes to how we handle suspects. A gentle pressure and international shaming (such as this article) is the way to create an awareness for a change In Japan. As a country who is increasingly relying on international tourists and FDI to support its anemic growth, western world must call for better treatment of suspects (and not only for its Business representatives). Editor’s note: This comment has been anonymized in accordance with applicable law(s).

I do not know if Mr. Ghosn and Mr. Kelly are guilty or not. My understanding of Western norms is that a suspect is presumed innocent until proven guilty in a court of law. In the case of these two individuals, it seems that the prosecutors have decided that they are guilty until proven (or confess to their) guilty. Every country certainly does have its own standards and Japan is allowed to follow their laws. The problem, according to the stories I have read, is that this appears to be very selective justice (even though they seem to be making a point that they are treated like any other suspect). I recall the case of Takata (whose faulty airbags led to loss of life) and Toshiba (USD 1.2 billion accounting scandal) did not see a single arrest by the prosecutors. I watched the documentary on the Olympus scandal and, interestingly, this was a case of a foreign CEO who was the whistle blower on what he thought was corruption by his Japanese Chairman of the Board and other executives. None of them were treated the way Ghosn is being treated and infact, the foreign CEO was more or less chased out of Japan. So it is perception of this selective justice that is making non -Japanese question the methods being applied in this particular case.

“We have a view in the United States and Anglo-American systems where we have the greatest respect for the autonomy of individuals.” Uh, aren't the words "wealthy" and "powerful" missing as qualifiers of the word "individuals"?

from what I read in Financial Time, Mr Ghosn was far from innocent or by standard. He padded his pay check and under-reported it. With his unlimited resources ( money and passport to countries with no extradition treaties) only one solution is fair, to keep him in detention. That Mr Ghosn was CEO doesn’t give him privileges above others.

Well over 90% of criminal cases in the US end up as plea-bargains It strikes me that the biggest difference between the Japanese and American criminal justice systems is that in Japan the rich are treated the same as the poor. The US has two different systems: if you’re poor, the system is quite similar to Japan‘s. If you’re rich, you have a totally different experience.

There is a huge amount of interesting background to this story if you are aware of the centrality of legal reform to Japan's modernization. The main reason why citizens of European countries and the United States were initially granted immunity from prosecution under Japanese law during Japan's first great opening in the 19th century (this was the writ of extraterritoriality) was the perception that Japan's legal system was backward, antiquated, and barbaric. And so the Japanese went about the business of updating their legal code in order to show the Westerners they weren't barbaric, and thus get extraterritorial privileges for U.S., British, French, etc. citizens in Japan removed once and for all. The Japanese hired a Frenchmen named Gustave Boissonade (1825-1910) to reform their legal code towards this purpose. By the early 20th century, no longer could Americans or Britons who committed rape or murder in Japan be exempt from being tried in a Japanese court. But for the Japanese in 2018, there is unfinished business. American soldiers who commit crimes in Japan are routinely tried by American military courts rather than in Japanese courts. This irritates some people in Japan to no end, understandably. It would make little sense for Japanese legal authorities to treat Ghosn in a manner seen as out of line by legal experts in the United States, if they wish to one day make it normal for U.S. soldiers in Japan to face justice in Japanese courtrooms.

If you go to a foreign country you had better know their laws. Ms. Meng was arrested in Canada for a non-crime in either China or Canada but only because Trump loves sanctions and thinks the USA rules the world.

This is astounding since on the face of it Ghosn appears to be the victim of some conspiracy by the board of Nissan to change the terms of their deal with Renault who own 43% of their business. This stinks to high heaven.

The criminals quoted in this story seem eager to collude with one another in ways big and small, even long after their misdeeds have been revealed. I hope the prosecutors get to the whole truth of the story.

The laws which govern the conduct of criminal prosecutions in Japan appear to only pay lip service to the rule of law. In some ways it is similar to the system of law in China. The use of long periods of detention while also wearing down the accused persons also have the wider goal of deterrence among the wider population. In Mexico there is a presumption of guilt until proven innocent though there has been talk of reform. Again this kind of legal system should also act as a deterrent - but it allows for sloppy policing and brief preparation and people can be wrongly detained and held in custody. Australia a so called democracy and country with a rule of law allows for the indefinite mandatory detention of people seeking asylum for people who do not come with passports and visas. Again this is all about deterrence despite bipartisan denials to the contrary. Only the Greens political party and human rights activists call this out for what it is - not safe borders or fighting people smugglers but an abuse of the human rights of refugees. The two accused people in Japan are also having their human rights trampled upon.