Mr. Ghosn arrested for the 3rd time for aggravated breach of trust!
DECEMBER 21, 2018
According to news reports, Mr. Ghosn was arrested for the 3rd time on suspicion of aggravated breach of trust committed in 2008.
Yesterday, the request for extension of the detention period for Mr. Ghosn’s 2nd arrest was dismissed and although the prosecutors made a quasi-appeal to the court, the court rejected such appeal, thus creating a situation where the prosecutors no longer can detain Mr. Ghosn as a suspect but only can detain him as an accused relating to facts by which he is indicted.
The prosecutors probably had not completed the investigation of the facts of the crime of Mr. Ghosn’ second arrest for violation of the Financial Instruments and Exchange Act, thinking that extension of the detention period would certainly be approved. Dismissal of their request for extension was a total surprise for them.
Due to the above, the following situation may occur: (1) if bail is approved, it will obstruct unfinished investigations; (2) even if bail is denied, Mr. Ghosn is no longer the “suspect” and is detained only as the accused. He is no longer an object of investigation but is a subject of the trial, and is on equal terms with the prosecutors. He can refuse interrogation, by rights. He can even refuse to leave his room. Therefore, even if bail is denied, investigation will be hindered; and (3) if Mr. Ghosn is detained only as the accused, he can have anyone visit him, as such detention as an accused is not accompanied by prohibition of interviews. This is because it is not accompanied by conditions such as bail conditions.
As you can see from the above, the prosecutors face a difficult situation by yesterday’s dismissal of the request for extension of the detention period. The defense counsel demonstrated consideration to the investigation by stating that they will not request bail until after Mr. Ghosn is indicted also for violation of the Financial Instruments and Exchange Act, but the prosecutors had no intention to compromise. As a last-ditch measure, they arrested Mr. Ghosn for the third time on suspicion of aggravated breach of trust committed in 2008, a breach said to be committed 10 years ago. It can be said that the prosecutors have a serious sense of urgency because if detention for this 3rd arrest is approved, they will have to investigate through the year end and new year, giving up their New Year’s holiday.
Following today’s 3rd arrest of Mr. Ghosn for aggravated breach of trust, request for detention will be made again at the 14th criminal division of the Tokyo District Court tomorrow and such detention most likely will be approved.
In the first place, I believe that the problem lays in the principle of criminal justice, in other words, there is problem in the “Case Based Theory”. According to this theory, detention is based on the fact of the crime stated in the detention warrant, therefore, logically, it is possible to repeatedly arrest a person for a crime different from the one stated in the detention warrant and detain such person forever.
I wonder what my former teacher, Professor Toyo Atsumi will say to this case if he were still alive. In order to prevent a person from being repeatedly arrested and detained, he introduced the “Procedure Based Theory ” in a time when the “Case Based Theory” was the popular theory. In the “Procedure Based Theory”, Professor Toyo Atsumi asserted that the effect of a detention is based on a procedure, not on the fact of a crime, and the arrest and detention made during the procedure will bind all cases already detected during the investigation period and that can be handled at the same time, thus not permitting re-arrest or re-detention.
Many students that studied under Professor Toyo Atsumi, including myself, became prosecutors, however, few are left in the field.
At all events, by this 3rd arrest, Mr. Ghosn’s investigation will extend for a long period of time. I expect that investigations will be concluded by the indictment of the violation of Financial Instruments and Exchange Act (under investigation) and aggravated breach of trust, on January 11, when the detention period (extension may be permitted) of aggravated breach of trust ends.
Mr. Ghosn’s bail may be made after such indictment.
(Tsutomu Nakamura, Founding Partner)