On November 23, a UN panel released an opinion deeming the decision to arrest Carlos Ghosn neither “necessary nor justified” and the process by which Ghosn was arrested was not conformant with international covenants of law.
The UN panel in question was the United Nations Working Group on Arbitrary Detention, founded in 1991 to investigate cases of arbitrary detention in violation of international standards. Most recently, the body has condemned arbitrary arrests in Belarus.
The panel said the decision to detail Carlos Ghosn was “fundamentally unfair” and on top recommended an independent investigation. The panel also pledged that they would refer the case to the UN’s Special Rapporteur on torture, cruel and other inhuman or degrading treatment.
The Case Background
Carlos Ghosn, the former CEO of Nissan was first arrested more than two years earlier, on November 19, 2018. He and former Nissan director Greg Kelly were accused of misreporting their compensation under Japanese law. Additional charges were later filed accusing Ghosn of misusing company funds by buying private property. He was arrested a total of four times, and eventually granted bail under conditions that included remaining in Tokyo, not going abroad, and handing in his passport and cell phone. Ghosn and Kelly have firmly denied the allegations.
Throughout, Ghosn’s defense argued there was a “conspiracy” on the side of Nissan to oust him, and “hostage justice.” Hostage justice denotes a situation where the defendant is unjustly arrested, interrogated and held in harsh conditions.
Ghosn’s trial was supposed to start in 2020, but shocking the world, the ex-CEO made a dramatic escape by hiding in a large piece of luggage at the end of December 2019, and was smuggled out of Japan, making his way to Lebanon on a private jet. In a well-publicized press conference in Beirut, he claimed to the world that he had escaped because “he had zero chance of a free trial.”
The ex-Nissan CEO was at the heart of the alliance between Nissan, Renault and Mitsubishi Motors, and his behavior rocked the core of the automotive industry.
The UN Panel Opinion
The Working Group on Arbitrary Detention claims it looked at the claims moved by Carlos Ghosn’s defense team of “hostage justice”, meaning when a defendant is held arbitrary for long periods of time in order to coerce a confession out of him.
The Working Group conclusion followed the evidence provided by Ghosn, finding that “the process of arresting and detaining Mr. Ghosn four times was fundamentally unfair, as it prevented him from regaining his liberty and from enjoying other fair trial rights, including to freely communicate with legal counsel.”
The panel also alleged that Ghosn’s detention constituted a breach of international norms by deploying “solitary confinement, the deprivation of exercise, constant light, and the absence of heating, as well as limited contact with family and legal counsel”, which consequently “compromised the capacity of defending himself.”
The panel finally argued that the process reflected a heavy reliance on confessions, which could lead to extortion and coercion. The panel said this was supported by the conditions in which Ghosn was questioned for several hours a day, without the presence of a lawyer.
Finally, the Working Group said that the behavior of the media was skewed against Carlos Ghosn, as images showing him being arrested with handcuffs and rope around his waist tarnished his image. The Working Group added: “Criminal defendants should not be presented to the court in a manner indicating that they may be dangerous criminals, as this also undermines the presumption of innocence.”
The Working Group called Japan to take steps so that the case will “conform” with international laws. In addition, it deemed that “the appropriate remedy would be to accord Mr. Ghosn an enforceable right to compensation and other reparations, in accordance with international law”, and urged the start of an independent investigation in the matter.
Ghosn’s Lawyers Elated
Lawyers on the side of Carlos Ghosn were quick to positively respond to the decision.
In light of the panel’s announcement, lawyers François Zimeray and Jessica Finelle, declared in a press release: “We welcome a courageous decision that represents a decisive turning point.”
On the other hand, the Japanese government released a statement strongly opposing the decision taken by the UN Working Group.
“The Opinion is totally unacceptable, and is not legally binding. On November 20, the Government of Japan filed an objection against the Opinion adopted by the Working Group on Arbitrary Detention”, read the statement.
The government also rebuffed accusations of “hostage justice”, by saying that “Japan’s criminal justice system sets out appropriate procedures and is administered properly to clarify the truth in criminal cases while guaranteeing the fundamental human rights of individuals concerned.”
Japan also pointed out that defendants are granted bailーunless “the suspect is likely to destroy evidence and flee.” Despite concerns, Carlos Ghosn was granted bail and lived relatively freely within these limits for a few months. Then he proceeded to flee to Lebanon in late December 2019, “in violations of these conditions he had promised to comply with” [not to flee Japan].
For their part, the Working Group admitted it “expresses no view on the circumstances in which Mr. Ghosn fled the jurisdiction of the Japanese authorities, and should not be construed as condoning or offering any justification for such a departure.”
The Japanese government further stated that the legal system prevents the disclosure of too much information on the criminal proceedings “in order to protect the rights of the people concerned.”
The Japanese government’s statement concluded “Japan therefore deeply regrets that the Working Group continued to consider the case and rendered opinions based on limited information and biased allegations from the source, not based on accurate understanding on Japan’s criminal justice system.”
A Case of ‘Hostage Justice’?
The UN panel decision is not legally binding, but it is likely to affect international pressure on how the Ghosn and related cases move forward.
Previous statements by Japanese ministers had argued that misinformation had been disseminated by the media concerning the Carlos Ghosn case. Some media in Japan also argued that treatment of the case in international opinion might be akin to a case of xenophobia.
JAPAN Forward’s Mythbusters column by Professor Earl Kinmonth took a look at foreign claims that this was a case of tarnishing “Brand Japan” and also compared Japan’s justice system to other countries that might have an interest in Ghosh, including Lebanon, France and Brazil.
In a rare interview with the Financial Times in late January 2020, the then Minister of Justice Masako Mori said that “the Japanese system was not perfect” but strongly denied the allegations moved by the defense of Carlos Ghosn.
In the interview, Minister Mori fought back on several fronts, starting with the alleged 99 percent conviction rate in Japan, which she said was an unfair perspective because prosecutors only pursue indictment of suspects in 37 percent of the cases. Viewed this way, it is comparable to Western countries.
There is also the fact that the press conference in Beirut in January 2020 was a media show rather than a factual presentation of evidence.
This UN panel comes as Greg Kelly has started his trial in Tokyo in September for allegedly underreporting his income. In addition, the Working Group statement could affect the case of Michael and Peter Taylor, a father and son currently in prison in the U.S. who could face extradition to Japan for their role in arranging the escape of Carlos Ghosn.
We will be covering future developments in this story, so look for articles on the subject here, in the future.
Author: Arielle Busetto