Mr. Carlos Ghosn appears in public for the first time since his detention – About the procedure of disclosure of the reason for detention
JANUARY 4, 2019
According to news reports, Mr. Ghosn’s defense team requested the Tokyo District Court to disclose the reason for Mr. Ghosn’s detention.
The reason for detention must be disclosed in an open court, therefore Mr. Ghosn will appear for the first time in public since his detention. Such procedure is expected to take place on January 8.
The extended detention period on charges of aggravated breach of trust will expire on January 11. He is expected to be indicted on the same day.
An accused or suspect may be detained only when they fall under certain legal requirements: when there is probable cause to suspect that he/she committed a crime and when he/she may conceal or destroy evidence or that he/she may flee. Such requirements are stipulated in the items of Article 60 of the Code of Criminal Procedure.
The judge that grants detention will clearly state which requirement stipulated in an item or items of Article 60 applies to this case (the defense counsel may obtain a copy of the detention warrant), however, at the time of ruling of detention, the judge will not announce or disclose the reason why he/she decided that such requirement applies to this case.
This procedure to disclose the reason for detention gives the suspect and defense counsels a chance to request the judge to explain the reason for detention (Item(1) of Article 83 of the Code of Criminal Procedure).
This procedure is established based on the second half of Article 34 of the Constitution of Japan that prohibits undue restraint of a person, and is conducted to clarify the reason that the judge granted detention, and such reason must be disclosed in an open court. Such procedure will be held within 5 days from such request, in principle.
At this procedure for disclosure of the reason for detention, in addition to the suspect (accused), the defense counsel and public prosecutors will attend. Anyone may attend the court as a spectator. Unlike ordinary court proceedings, the public prosecutors and defense counsel will not engage in vigorous debates. The judge will explain, one-sidedly, the reason for granting detention. The public prosecutor will remain silent.
However, the suspect and/or defense counsel are given an opportunity to state their opinions, therefore, I believe that Mr. Ghosn will give his opinion.
Furthermore, the defense counsel may demand the judge to make clarifications in regard to the reason for detention. The defense counsel may make demands, such as “Specifically explain what evidence you used to place charges on the suspect”, however the judge usually answers heartlessly “Specific evidence may not be disclosed because it will hinder the investigation”.
Of course, the judge will never change his/her opinion and rescind the detention after listening to the opinion of the suspect and/or defense counsel.
Even more, there is no chance that the prosecutor will drop charges after listening to such opinions. As the detention period expires on January 11, it is likely that the charging sheet is already drafted and steps to obtain approval within the Prosecutors’ offices has started on January 8, the day this procedure is held to disclose the reason for detention.
You may think that there is no point in undergoing this procedure for disclosure of the reason for detention. Speaking frankly, it is a kind of a ceremony.
However, this procedure is not meaningless. It bears significant meaning in helping to open up investigations and interrogations that are conducted behind closed doors.
As Mr. Ghosn’s case attracts a great deal of international attention, I frequently hear my foreign acquaintance say “In Japan, why does the suspect disappear when he/she is arrested”.
From a foreigner’s perspective, it looks as if Mr. Ghosn suddenly disappeared or was abducted. They feel that it is not much different from cases where human-rights lawyers disappear after being detained in China.
This procedure to request the disclosure of the reason for detention contributes a little toward resolving the situation where a suspect is placed behind closed doors.
Especially when the suspect is prohibited to have anyone visit him/her, as in the case of Mr. Ghosn, not even a family member can see his/her face. In such situation, it is important to hold this procedure for disclosure of the reason for detention because this procedure must be conducted in an open court.
It is also Mr. Ghosn’s first opportunity to pronounce to the public that the charges that he faces are groundless, and attempt to restore his honor.
(Tsutomu Nakamura, Founding Partner)