Carlos Ghosn, a victim of Japan’s Special Investigations Unit

The Special Investigations Unit, also known as SID, is an elite department within Japan’s prosecutor office. There are three SID’s — in Tokyo, Nagoya, and Osaka — whose groups have the latitude to investigate independently of police (about 1% of all cases investigated source: ) with the aim of uncovering and convicting white collar criminals. Interestingly, the SID’s history started in 1947, during the confusion of post-war Japan. At that time, troves of precious assets such as diamonds were hidden across the country. To uncover this treasure, a powerful special unit with incredible investigation and prosecution discretionary power was formed within the prosecutor’s office.

Ever since, the SID has been after high profile white collar or political criminals under the premise of leading the fight against greed, and fueled by the growing popular association of the rich and powerful as being greedy. Some examples are -

1. In 1976, Prime Minister Kakuei Tanaka was arrested for alleged bribery. He died in 1993 during the process of appealing his innocence.
2. In 2010, Ichiro Ozawa, then the president of Democratic Party was indicted on fraud charges. Ozawa was acquitted in 2012, but his political power was greatly diminshed.
3. In 2009, Ms. Atsuko Muraki, a director at the Ministry of Health Labor and Welfare, was arrested by the SID, and detained for five months for allegedly creating false public documents. She was innocent. Although she had nothing to do with the alleged crime, the SID fabricated evidence to falsely charge her. This case led to the creation of Prosecutor Office Review, an advisory body for the Minister of Justice, of which I was closely observing. Although one of its objectives was to dismantle the SID, after years of discussions, almost nothing has changed, and the SID has survived.

The public views SID as a heroic and “fearless” group engaged in the “fight against great evil”. Yet those on the inside, like my friend and former prosecutor who worked in the SID, have said they are a “government authorized powerful Yakuza”. Many in the international committee, and some legal professionals in Japan see them as the arbiters of “Hostage Justice” — see this HRW petition. The SID’s vast and unchecked powers become clearer when one takes a look at the lifecycle of investigation to indictment and trial. Some examples are -

1. Prior to investigation, the SID has complete latitude to determine whom they want to investigate.
2. During the investigation phase, subpoenas for financial records for example are not required — information must be freely shared with prosecutors (source: unafei).
3. After an arrest , a suspect can be incarcerated for an extendable (cf Ghosn) 23 days, and is subjected to heavy questioning — confessions are generally coerced through verbal deals that promise and often grant freedom from incarceration and offer greatly reduced sentences. Defense attorneys cannot be present for any interrogations, which the Ministry of Justice has tried to justify in a recent blog post by writing “if lawyers’ attendance during interrogation were to be granted, it would make it difficult to discover the truth of the case due to the difficulty of obtaining sufficient statements from the suspects”.
4. Lastly, if a suspect refuses to confess and goes to trial, the conviction rate currently stands at more than 99%; data and anecdotal evidence show that judges are too afraid to rule against SID

In the case of Carlos Ghosn and Atsuko Muraki, and most likely many others, it is my opinion that SID influence also extend to the Japanese media. It appears the media received verified tips of events prior to those events taking place. In return, they, as is telling in the Ghosn case, stayed faithfully in position with SID, adopting a reporting line that strongly benefited their case. For example, at the exact moment of Carlos Ghosn’s fourth arrest, the apartment building he was living in was surrounded by around a hundred media at 5:30 in the morning. Several traffic control policemen were also present at that exact moment. How did they know had they not been informed of this event by someone close to the case beforehand? This sort of media coverage has largely formed Japanese public opinion.

On the topic of Japan’s high conviction rate, Carlos Ghosn said in a press conference in Beirut that he would have little chance of a fair trial with the indictment-conviction rate of 99.4% in Japan. Immediately after his press conference, Mori Masako, the Japanese Minister of Justice, defended the system in Wall Street Journal op-ed “Japan’s indictment ratio is only 37%, “99.3%” is the percentage of convictions divided by the number of indictments, not the criminals. As such, the conviction rate is high”

Whereas her math is correct, it seems she is questioning the conviction rate calculation method used to benchmark different systems. Let’s take a simple example and compare the conviction rate (# convictions / # cases tried) between the U.S and Japan. In 1994 — and its unnerving to see things have not evolved even with several reforms — Japanese defendants refused to confess and were thus tried in 3,648 cases. Out of those 3,648, only 45 were acquitted, bringing a conviction rate of 98.8%. In 1995, federal defendants in the U.S. pleaded innocent in 11,877 cases and were acquitted in 8,207 of cases — a conviction rate of 30.9% of cases (source: J. Mark Ramseyer). Japan’s conviction rate stands 3 times higher than the U.S’. Moreover, branding those who refuse to confess as criminals, as Ms Mori did, presumes a suspect as guilty before standing trial. Shouldn’t a suspect be judged as a criminal after a fair trial like in other liberal democracies like the U.S. and France (where Ghosn is a citizen)?

This year, Japan is hosting the largest international conference in relation to criminal justice, organized by UNODC — United Nations Office on Drugs and Crime — in April 2020 at a Kyoto Congress. UNODC is mandated to help member states enhance the Nelson Mandela Rules, which stipulates a fair criminal justice system.

At this time, the Kyoto Congress has no plans to include a strong debate on Japan’s judicial system as it pertains to the SID’s unchecked powers, also coined “Hostage Justice”, as one of the discussions. It is my opinion that upholding the SID’s vast powers undermines the human rights given to citizens by the Constitution of Japan, and we must take steps to generate organizational change. I would urge participants to bring up and debate the subject. After what happened to Carlos Ghosn and countless others before him, we have an obligation to host a meaningful international conference in Kyoto. Bringing reforms to our justice system is long overdue.

Originally published at http://docs.google.com.