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Ghosn’s release on bail a notable strategic triumph for defense team

The Yomiuri ShimbunAs criticism of the continuation of his detention mounted, a defendant who has denied all allegations leveled against him has been released on bail. This is an unusual development.

It may be surmised that the court made a decision that walked a fine line, giving consideration to the defendant’s human rights and right of defense, and also to the impact of his release on the investigation and trial.

The Tokyo District Court has granted bail for former Nissan Motor Co. Chairman Carlos Ghosn, who has been indicted on charges including aggravated breach of trust. Ghosn had been detained since his arrest in November — a period stretching to 108 days.

This was Ghosn’s third request for bail. When deciding whether to grant bail, a court attaches special importance to concerns the defendant might destroy evidence or flee.

Ghosn’s defense team presented to the court a range of conditions for his bail, including prohibiting him from going overseas, installing surveillance cameras at his home and restricting his access to the internet. These strict conditions could excessively restrict Ghosn’s privacy and freedom of action.

The Tokyo District Public Prosecutors Office’s special investigation squad is still investigating the flow of Nissan funds to countries in the Middle East. If Ghosn and other people linked to this case arrange to tell police the same story, it could have a considerable influence on the investigation and evidence presented at the trial.

Given the concerns raised by the prosecutors, the defense team’s strategy of proposing specific conditions for Ghosn’s release can be considered a success. The court must carefully check whether the bail conditions are being properly observed.

Discuss bail system

Under Japan’s criminal justice system, detention of a defendant tends to drag on for an extended period if they deny the allegations against them. This has been dubbed “hostage justice.” The courts have long continued to side with the assertions of prosecutors opposed to bail, especially in cases involving the special investigation squad. Will Ghosn’s release on bail mark a turning point in this regard?

Bring together a collection of high-profile lawyers, including one known as the “innocence-winning contractor,” to form a new defense team. Install surveillance cameras and take other steps to prepare the environment necessary for bail. Defendants able to respond in this manner are very rare.

Ghosn was widely known as a charismatic businessman. In overseas media, in particular, his prolonged detention was reported with a tone that noticeably viewed his treatment as a problem. Ghosn’s family even complained to the United Nations that his human rights were being violated.

Considering all these circumstances, it is appropriate to regard Ghosn’s release on bail as only a special case. It cannot be denied that the Tokyo District Court also was aware of international criticism of Ghosn’s detention. It should offer some sort of explanation of the reasons behind the decision to grant bail.

In recent years, the tendency for courts to more flexibly grant bail has been growing. Under the pretrial conference procedure system introduced in 2005, points of dispute and evidence are narrowed down before the trial begins. The growing necessity for defendants and their lawyers to hold in-depth discussions in preparation for this process is one reason for the growing tendency to more flexibly grant bail.

The three branches of the legal profession should deepen discussions on how the bail system should operate.

(From The Yomiuri Shimbun, March 8, 2019)Speech



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