Examining Carlos Ghosn and Japan's System of 'Hostage Justice'

https://www.japantimes.co.jp/news/2019/04/17/national/crime-legal/examining-carlos-ghosn-japans-system-hostage-justice/

by onemoresoop • 7 years ago

117 112 7 years ago

japantimes.co.jp

deugtniet2• 7 years ago

I find it interesting how Japan and Germany both have a constitution that was essentially written by Americans after the second world war. But there is a big difference in civil liberties between these countries.

E.G. If the police charge you in Japan, there is very little chance not being sentenced to something (or taken hostage). Compared to Germany where you would have a much fairer trial.

mafribe5• 7 years ago

Aside, not relevant to the article discussed here.

   constitution that was essentially 
   written by Americans

I cannot speak about Japan, but that's historically false for Germany. If you look at the list of participants in the main events that drafted the West German constitution such as the Rittersturz-Konferenz [1] and the Verfassungskonvent auf Herrenchiemsee [2], then you'll see that all participants are German. Naturally, the allies had to agree, but they were split in a big way. The Soviet Union anyway, but the US and France really had very different ideas. France, in particular, wanted to snatch the Saar region. Naturally the drafters of the German constitution were inspired in particular by the US constitution, because it was rather successful.

[1] https://de.wikipedia.org/wiki/Rittersturz-Konferenz

[2] https://de.wikipedia.org/wiki/Verfassungskonvent_auf_Herrenc...

deugtniet2• 7 years ago

My constitutional knowledge on the German constitution is a bit rusty, but I guess you hit the nail on the head when you say: 'Naturally, the allies had to agree'. The Allies were the ones that required these conferences and approved of the Germans that went there. I guess the English and the French had some say, but really the big dog of the allies was the US. So I stand by my statement.

azernik5• 7 years ago

Specifically, the German Constitution was drafted by parties associated with the Weimar coalition, and very much reflects the lessons learned from the fall of the Weimar Republic.

pm246012• 7 years ago

Or the US where only the wealthy can afford a defense.

ttul• 7 years ago

A hundred years ago, Japan was a feudal society. Apparently, some of the old traditions live on.

u10• 7 years ago

Japan wasn't a feudal society 100 years ago, in fact, they had beaten a western power 10 years prior.

Not to mention the 'West' just finished 4 years of blowing each other up, not very "Civilized" imo.

rhizome• 7 years ago

And also not to mention that while their internal justice may have been questionable (as it always is, everywhere), the Edo period had zero war for 250 years. Imagine the US never having been in a war since before the Declaration of Independence. Would that GP included that in their criticism.

GuiA• 7 years ago

The feudal era in Japan is considered to have ended with the shogunate, ie the Meiji restoration (1868).

mc324• 7 years ago

To be fair to the OP I don’t think they were invoking the end of the shogunate but rather that because it had ended within memory of the defeat to the allies, these vestiges were relevant and were (and continue) to be in the conscience of Japanese society.

zumu• 7 years ago

Their constitution was drafted mostly by the Americans. I don't think that's a fair conclusion to draw here.

sandworm101• 7 years ago

I don't see the problem. Extended detention and repeated interrogation is normal around the world. Visit Rikers island and look at how long people are held there prior to trial (years). The focus on confessions isn't a Japanese thing. Look at how many americans/canadians/brits/auzzis agree plea deals, a form of confession. Repeated questioning isn't torture. In the USA it is true that police have to stop asking questions once you demand a lawyer, but that isn't true in Canada. The mounties can, and do, question suspects for hours. Brits who do not want to speak still have to sit through the ritual of "no comment' interviews which can last hours. Are we only talking about these Japanese cases because they involve rich people?

gambiting• 7 years ago

>I don't see the problem. Extended detention and repeated interrogation is normal around the world.

Just because something is normalised doesn't mean it's ok, I think we can both agree on that?

thereare5lights• 7 years ago

Then why do posts that talk about our (the US's) problems such as Rikers always get flagged on HN whereas posts about other countries get through?

Seems like empty rhetoric to me.

fjsolwmv• 7 years ago

Saying you don't see a problem is absolutely disgusting.

The Rikers cases are miscarriages of justice and the two famous cases led to changes in the law to prevent some future horrors.

socksindrawers4• 7 years ago

If anything, I'm happy that there's a country willing to prosecute people for white collar crimes.

Just look at how America is all-too-willing to let mass murderers like the Sackler family get away with profiting off of addiction. Do these sound like words of someone trying to do anything other than profit off of death? “The prescription blizzard will be so deep, dense, and white.”

Meanwhile you see blue collar Americans charged with federal riot and conspiracy charges for exercising their legally protected free speech rights at a protest that they had acquired a permit for (Rise Above Movement).

colejohnson66• 7 years ago

Rioting, even with a permit to protest, is illegal

ekianjo2• 7 years ago

If anything, I'm happy that there's a country willing to prosecute people for white collar crimes.

Interesting but Japan almost never jails politicians who are by far more often guilty of stealing/using for their private purposes taxpayers money. They just get a slap on the wrist and they are good to go - no jail sentence, no crime. Amazing isn't it?

ConcernedCoder2• 7 years ago

My unpopular opinion: Questioning someone longer than they want to provide answers, when that same person is unable to leave the interview is a form of torture -- change my mind.

AnIdiotOnTheNet• 7 years ago

Under that reasoning I don't see how any form of detainment could not be considered torture as well, including pretty much all public education. One must accept that the real world is not made of lines that provide convenient barriers between concepts, in other words, there are degrees of torture, and some will be much more acceptable than others.

rmah• 7 years ago

Your request is, at its heart, a question about the definition of the word "torture".

The pedestrian definition of "torture" as per the Merriam-Webster dictionary is:

1: the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure

2: a) something that causes agony or pain; b) anguish of body or mind

3: distortion or overrefinement of a meaning or an argument

I guess definition 2b in the context of "mind" fits best with your proposition. Which then leads to the definition of "anguish".

Alternatively, we can examine the legal definition, which will vary by jurisdiction, but for completeness, I will link to the UN definition at https://www.apt.ch/en/what-is-torture/. In brief:

"Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession"

Here, you'd have to ask if prolonged unwanted questioning causes "severe [mental] pain or suffering".

And finally, perhaps you mean torture in the figurative sense.

Either way, if simply questioning someone "longer than they want" is "torture" then pretty much all of us have, at some point tortured someone. At that point, the word "torture" becomes synonymous with "discomfort" or "to annoy" and would, IMO, lose all utility from a legal point of view.

In the final analysis, what this boils down to is that the world does not exist to serve your desires. Unpleasant things can and will happen to you. Even being asked questions you don't want to answer in situations where you cannot leave. While an individual may never have experienced anything more unpleasant than that, and thus it feels horrible to them, the fact is that there are far far FAR more unpleasant experiences that millions of others have faced. Society does not owe the sheltered more than the less sheltered.

on_and_off3• 7 years ago

Not going to actually.

The Merriam-Webster definition above is weak.

One discussion around torture with my philosophy professor (thankfully the french engineering cursus has one or two interesting classes) really stuck to my mind. We were discussing a text where a french general that had practiced torture in Algerie. He said something that amounts to "I have asked my soldiers to electrocute me so I could see how it feels like, it is not that bad so I felt ok about using it on algerians". It misses the whole point of torture : that you totally lose control, which is where the agony comes from. Anecdotally, I have also been briefly electrocuted by accident once. The pain was indeed not that bad.

But I have not been tied to a chair and subjected to somebody electrocuting me for as long as they like.

This kind of repeated pain is what is impossible to resist to for very long. Not to mention that any sensation can be used that way, tickling is also a form of torture.

So I can see why you can construct that forcing somebody to answer questions, possible very hard ones about somebody close to them that just died, can also be a form of torture.

afthonos• 7 years ago

You’re taking a known-bad word (“torture”) and attaching it to something you disagree with, getting free mileage for your position.

So, without using “torture”, what is the position of yours you’re challenging us to change?

ekianjo2• 7 years ago

I don't see the problem. Extended detention and repeated interrogation is normal around the world.

You could say the following as well:

I don't see the problem. Dictatorship is normal around the world.

Since when is something normal just because it's widespread? There is no reason to keep someone in jail unless there is a strong suspicion they are a threat to others, or a risk of flight.

dalore• 7 years ago

You can't leave until you confess or payup isn't a problem? With no access to family OR legal representation throughout the process?

SkyBelow2• 7 years ago

Look at how many americans/canadians/brits/auzzis agree plea deals, a form of confession.

There are also done under threat.

"Plea guilty to X and take 6 months in prison, or we will charge you with Y which carries 10 years in prison. If you choose the second option we will give you an overworked public defender who loses 90% of the time."

In effect, it is punishing people for insisting on their right to a jury trial.

SkyBelow2• 7 years ago

*There -> They're

My self disappointment is immeasurable.

corey_moncure• 7 years ago

Who is the writer and what is his angle here? It looks like this is his only contribution to this outlet. A google search on his name turns up nothing.

cerealbad• 7 years ago

Outside Board Director, Former Executive Officer at US/Japan Multinationals, Retired Int'l Business Attorney.

you can find him on linkedin.

https://www.linkedin.com/today/author/eneiheisel

vectorEQ• 7 years ago

i find it interesting that if a normal person gets detained like this, no one fucking cares. ;)

anonu• 7 years ago

Ghosn's handling by the Japanese is utterly despicable. No habeas corpus ... no due process.

Ghosn is credited with a stunning corporate turnaround and creating billions of dollars of value for a Japanese company and the Japanese people. I am certain foreign corporations who do business in Japan are thinking long and hard about the implications and potential risks of operating there.

To be clear - I am not saying Ghosn is innocent. He may very well have created special corporate structures to siphon off cash - and if he did, he certainly didn't do it alone. I think he regretted not taking the helm of GM where he saw US top execs easily earning $20, $30mm a year with no complaints from the public...

on_and_off3• 7 years ago

Ghosn is credited with a stunning corporate turnaround and creating billions of dollars of value for a Japanese company and the Japanese people

This should have absolutely no bearing on how the justice system handles him.

dopamean• 7 years ago

Seriously! I know it happens but I feel like it's rare to see someone seem to explicitly argue that someone's business success should be a mitigating factor when considering their crimes.

mc324• 7 years ago

Japan isn’t acting exceptionally with Ghosn. That’s their regular operating procedure.

Ghosn allegedly arranged this overt/covert payment system because allegedly he was unhappy that compared to euro and American auto execs, he was being under compensated.

This scheme if true is unlawful. Euro and American auto execs get paid above board and since there is no need for dual streams (because if you can command 200 million and you can get it, you don’t have to be shamed about it.).

In Japan it’s improper to be overcompensated but in order to be on par with other execs’ pay Ghosn arranged this overt/covert compensation system.

djrogers2• 7 years ago

Japan isn’t acting exceptionally with Ghosn. That’s their regular operating procedure.

From the GP: >> Japan isn’t acting exceptionally with Ghosn. That’s their regular operating procedure.

These two ideas aren't mutually exclusive.

hedvig• 7 years ago

Well let's roll part of that back because there is growing consensus that "if you can command 200 million and you can get it" you should be shamed.

2calazm• 7 years ago

Counter-argument: that's how most suspects are handled in Japan (sadly), but people care about it only now that it affects a rich westerner, as you comment demonstrates ("stunning corporate turnaround and creating billions of dollars of value").

mises7• 7 years ago

At some point, foreign nations are different and we just have to deal with it. We got habeas corpus and other processes from the Magna Carta back in the eleventh century B.C., and the resultant English Common Law shaped the justice systems of America and other nations. It is not fair of us to expect all justice systems to align with ours.

For an extreme example of this issue, look at the Middle East. They have simply never taken to democracy, and a good number of people are of the opinion it is simply an issue with their culture. This is why nation-building fails there. Japan is so to a lesser degree. They Westernized more due to losing WWII to America, but are still different. It's not our job to play world police.

lostlogin3• 7 years ago

For an extreme example of this issue, look at the Middle East. They have simply never taken to democracy.

This isn’t helped by foreign interference in every election they have. Even the borders, arbitrary lines drawn up by colonial powers, contribute to the problem as the forced groupings don’t suit anyone except for some colonial empire a long time ago. If the meddling stopped for a decent duration democracy might have a chance.

TazeTSchnitzel2• 7 years ago

Iran is in the Middle East and had a democratic revolution. (Perhaps somewhat betrayed by their strange bedfellow, but still.)

stcredzero9• 7 years ago

At some point, foreign nations are different and we just have to deal with it.

Inherent human rights are universal. The closer the world comes to this ideal, the better life is for more people.

For an extreme example of this issue, look at the Middle East. They have simply never taken to democracy, and a good number of people are of the opinion it is simply an issue with their culture.

According to the level of democracy in nations throughout the world published by Freedom House and various other freedom indices, the Middle Eastern and North African countries with the highest scores are Israel, Tunisia, Turkey, Lebanon, Morocco, and Kuwait.

https://en.wikipedia.org/wiki/Democracy_in_the_Middle_East

Democracy, to the extent which it's established in Europe and the United States, is the result of a long process. Many of the Middle Eastern countries are still dealing with their mainstream religion claiming to override all laws and national sovereignty. By that measure, they are over a dozen generations behind the west in that process.

bernardom• 7 years ago

A.D. :-)

pm246012• 7 years ago

What Ghosn is experiencing is identical to what the US justice system inflicts on non-wealthy people.

Poor people and even "middle class" cannot afford to be accused of a crime. It is incredibly, impossibly expensive to afford justice.

In the US, it is far cheaper to accept a plea deal for a crime - even if innocent. Look at the US numbers for accused that actually "get their day in court".

Nolo estimates over 90% of cases never go to trial (https://www.nolo.com/legal-encyclopedia/how-criminal-cases-a... ) This sounds remarkably close to the Japanese numbers.

Thaxll• 7 years ago

Japan is a really weird country, on one hand it's the safest country, on the other it has old laws / weird mentality about some modern concepts for society, ex: https://en.wikipedia.org/wiki/International_child_abduction_...

zAy0LfpBZLC8mAC2• 7 years ago

Japan is a really weird country, on one hand it's the safest country

How do you know it is safe if you can easily be wrongly convicted, but no statistic about the country shows that?

teachrdan• 7 years ago

I believe they are referring to Japan's low rate of violent crime: https://en.wikipedia.org/wiki/Crime_in_Japan#Statistics

hamilyon2• 7 years ago

Criminals think seven, no, seventy times before doing anything that could possibly upset japan national on Japanese soil.

This is how it is that safe.

pwim• 7 years ago

With Japan's incarceration rate of 41 per 100,000 people, one of the lowest in the world, your chance of being falsely convicted is exceedingly low (as only a very small percentage of the population is convicted of crimes, wrongly or otherwise).

fmajid• 7 years ago

Google "Minamata" to shake off those rosy-tinted glasses you are wearing.

AcerbicZero• 7 years ago

I'm not going to tell the Japanese how to run their society, primarily because I'm not Japanese, they're a sovereign nation, and there is no evidence that the system I'm currently subjected to is any better or worse.

If the Japanese people want to change this, and want external support to change this, that is an entirely different discussion from what was in this article.

stcredzero9• 7 years ago

there is no evidence that the system I'm currently subjected to is any better or worse

There's plenty of evidence in the form of the many people who want to come here, and in the form of the many people who have come here and established successful happy lives. My family history is evidence. Inherent, universal human rights are the right side of history. The history of the world shows this.

stale2002• 7 years ago

I mean, places like Saudi Arabia and Iran give people the death penalty for being gay.

Being a "sovereign" nation is not a justification for anything. I am happy to denounce bad thing that other countries do, because of my "sovereign" right to do so.

noego4• 7 years ago

During detention, both were subject to extensive questioning by prosecutors without an attorney present. Videotapes of Ghosn’s questioning — a new feature added in the Criminal Procedure Reform law in 2016 in direct response to documented abuses — were made available to his attorneys who were present at the detention center, but lawyers were not permitted in the room where questioning took place.
The system must change.
First, every suspect should have the right to consult a lawyer as soon as the case is in the hands of prosecutors, and questioning should be prohibited in the absence of an attorney.

The article makes no attempt whatsoever to explain why the above change "must" be made. I'm on the fence on this matter, but the article just sounds like a sanctimonious scolding of Japan for not doing what other Western countries are doing.

"We're all doing it, so you better do it too" isn't a particularly compelling argument. In fact, given how much more effective their criminal Justice system is compared to America's, I would err on the side of keeping up their good work.

stcredzero9• 7 years ago

"We're all doing it, so you better do it too" isn't a particularly compelling argument.

That's not the argument. The real argument is from principle. The principle of inherent human rights.

noego4• 7 years ago

Having a lawyer present while being questioned as an "inherent human right"? Why is that? Why not your parents, spouse, children and best friend as well? I don't recall seeing this anywhere in the Universal Declaration of Human Rights. By what reasoning have you decided that having a lawyer present is an "inherent human right"?

djrogers2• 7 years ago

In fact, given how much more effective their criminal Justice system is compared to America's, I would err on the side of keeping up their good work.

When a society justifies human rights abuses based on results, bad things tend to happen.

noego4• 7 years ago

Being questioned by the police without a lawyer being present, is a "human rights abuse"? I have yet to hear an explanation on why being questioned 1:1 by the police is so bad.

_cs2017_2• 7 years ago

Edit: I just realized that the nearly 100% conviction rate is only for those who go to trial. A third of the people who are detained are released without trial. So ignore this post: my main assumption (that arrest is similar to conviction) was incorrect.

---

Maybe one way to think of the Japanese justice system is that the trial happens before the defendant is arrested. After all, the conviction rate is nearly 100%, so in some sense the actual trial is just a formality. From that perspective, it's not surprising that defendants may be detained without bail for weeks: the system treats them as if they are already convicted.

It seems to me that with such a system, it's far too easy to convict an innocent person: after all, the decision is made by prosecutors, who are usually incentivized to err on the side of conviction (both by career pressures and by personal predisposition).

Do we know whether Japan has a really high false conviction rate? It's probably very hard to answer, since it's unclear how anyone could collect such statistics.

If it turns out that false convictions are rare in Japan, it may imply the prosecutors are actually trying to discover the truth rather than convict. Which would be a very interesting deviation from any other justice system I know of.

b_tterc_p2• 7 years ago

It’s mostly because their system is underfunded so they don’t bother going to court unless a win is guaranteed.

_cs2017_2• 7 years ago

Interesting. Wouldn't that imply that a lot of crimes are not investigated, and/or suspected criminals are let go?

Causality1• 7 years ago

Like much of Japanese society, appearances and propriety are very important. Sometimes that means releasing criminals who might not be found guilty. Sometimes it means homicides get declared suicides.

ansible• 7 years ago

Years and years ago I traveled to Japan.

It seemed like a very safe place. I had heard about crime in Japan, and the year before had (allegedly) less than 100 murders for the entire country, which puts the murder rate far, far below the rest of the world.

And these days when I read about how criminal justice works there... well, I'm glad I'm not as naive as I used to be.

JoeAltmaier• 7 years ago

Oh yeah. Used to be they had 'hanging parks' where folks who owed money and couldn't pay would go to 'hang themselves'. Except they had help (from Yakuza etc). So add up 'homicide' and 'self-harm' mortality statistics and you might get a truer story.

tus87• 7 years ago

I find Western criticism of Japan's legal system hilarious.

Japanese prosecutors subject suspects to up to eight hours of daily questioning while they are detained in a bid to obtain a confession, shutting off access to their family and barring them from obtaining legal assistance during the questioning. And according to the popular narrative, it’s all done capriciously, with the nefarious machinations of the state lurking behind.

This is true in almost every western country except the US. England, Canada, Australia etc you have no right to a lawyer during questioning. Police will destroy and cover up evidence in attempt to frame people on a regular basis, and basically join the prosecution from day 1 instead of investigating crime. They seek certain sorts of convictions to please their politics masters. They much rather a rape conviction than a false accusation conviction for example. They will prosecute people against the weight of evidence, where in fact the only evidence is exculpatory.

Consider the case of Mark Pearson. Falsely accused of a rape after bumping into a woman in a subway station. Video evidence proved it wasn't possible, so police slowed down the footage to make it appear it did happen. https://www.independent.co.uk/news/uk/crime/cps-slowed-down-...

Now if this same thing happened in Japan, if they saw the video footage that basically proved it was a false accusation, do you think they would have acted as capriciously as UK police, or maybe charged the woman instead?

The narcissism of the Western political/legal class knows no bounds.

mindgam3• 7 years ago

The real mindfuck here isn't just that Japanese law allows the authorities to question you during detention (before being charged with anything), all day every day, with no attorney present.

Nor is it that they can restrict access to the outside world, only allowing you to speak to family for max 20m a day, with a translator + officer present at all times.

No, the real kicker is that the clock for the 20-30 day detention period starts fresh every time, for each charge they want to investigate. This means that they can essentially keep people in detention for as long as they want by having a list of charges and "investigating" them one at a time.

If you're used to things like due process, "give me my phone call", etc, the Japanese justice system is quite difficult to wrap your head around.

I have no idea if Ghosn is guilty of what he is accused of. But there are massive pressures to extract confessions from people in his position. And forced confessions reduce the legitimacy of the entire justice system.

Examining Carlos Ghosn and Japan's System of 'Hostage Justice'

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