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The rearguard of Carlos Ghosn, who relies this time on more serious allegations than the initial charges, gives the strong impression that it has been from the beginning of the day. a fishing expedition looking for a crime.
With the first launches, prosecutors had every interest in finding their stuff, namely the alleged misrepresentation of the former boss's compensation by his employer, Nissan Motor, and accusations that Ghosn would have used the Nissan credit to deal with its debts contracted by means of a currency exchange.
At present, the investigators seem to have trapped what looks like a real fish: allegations of heightened trust abuse regarding payments made by Nissan to an Omani distributor and returned to companies controlled by Ghosn.
Criminal investigations, of course, are not meant to be open fishing expeditions to uncover unsuspected crimes. In the United States and other advanced countries, prosecutors are required to abide by rules of conduct that prevent them from interfering with the lives of innocent citizens just to see what happens.
The question of what kind of information is sufficient to launch a fair inquiry is not black and white. But in Japan, prosecutors' discretion is exceptionally wide and must be used with caution. The Ghosn case shows that almost all businessmen suspected of even minor corporate law offenses could be targeted.
Normally, a criminal investigation begins when a victim reports a crime or that a body is discovered. In the case of Ghosn, the complaint was not filed by victims claiming that Ghosn had injured them, but by other Nissan officials, alleging that their boss had damaged the company.
Behind their complaints, they are worried about its intention to merge Nissan with the French group Renault, which owns 43% of Nissan's capital. Nissan executives spent months digging through corporate records looking for evidence they could bring to the prosecutor. Ghosn says that they have done it to oust him and reverse the merger. He denies any wrongdoing.
The evidence of wrongdoing by Nissan executives could be presented to prosecutors was not overwhelming, but sufficient to open an open investigation and find out more. The initial charges were a pretext to detain Ghosn for three months, interrogate him daily and see what he could confess.
Unfortunately, for a long time, prosecutors found what they could do better. The first set of charges was that Ghosn was criminally responsible for Nissan's failure to disclose in its periodic securities reports a portion of its compensation that was to be deferred until retirement.
The second set of charges related to a currency exchange agreement between Shinsei Bank and Ghosn. Mr Ghosn asked Nissan, with the agreement of the Nissan Board of Directors, to secure its contractual obligations for a period of four months in 2009. Nissan's risk under the guarantee was minimal at departure and has never been called. The facts surrounding the charges had been known for a decade, not only within Nissan, but also from government agencies.
Outside Japan, minor charges of this nature would never have led to criminal arrest, prolonged detention and interrogation, as was the case in the Ghosn case. They would have been treated as an internal matter to Nissan, or at most in a legal proceeding resulting in warnings or possibly a fine. Prosecutors have nevertheless agreed to step up the evidence presented by Nissan to initiate criminal proceedings against Ghosn, with the possibility that, if convicted, he is serving years in prison.
During his three-month detention, Ghosn reported several apparent irregularities that at least seemed more serious than the official minor charges against him. According to reports, lavish weddings at Versailles, private mansions in Brazil and Lebanon, consulting contracts for his sister, "paying" 9 million dollars. Yet none of these has so far led to arrests or indictments.
The most recent charges are more serious because, if the facts are true, Ghosn has misappropriated Nissan funds in his own accounts. None of the original charges involved embezzlement – a dive into society for personal gain.
If the facts prove correct and if we do not know it yet, a criminal case against Ghosn is justified.
But the suggestion that prosecutors have finally been able to find evidence of a substantial crime does not change the fact that it 's been a fishing expedition from the beginning. Authoritarian regimes tolerate open investigations of citizens without just cause to suspect them of wrongdoing – not in liberal democracies like Japan. Yes, open investigations sometimes reveal something. But that should not put us at ease with random inquiries about innocent people to see what is coming out.
The question of whether Ghosn will be returned to Kosuge Prison to be detained after the last arrest will be another interesting test of the Japanese criminal justice system. Theoretically, the Japanese constitution does not allow detention for the purpose of interrogation. Detention is only justified if a suspect is likely to flee or destroy evidence. Ghosn has already established, to the satisfaction of a Japanese court, that he was not likely to flee or destroy evidence. If Ghosn is arrested again, prosecutors should establish that he may falsify evidence of new charges or may have violated the terms of his current release, for example by opening a Twitter account. and announcing a press conference. .
Prosecutors are now probably suspicious of taking a real fish. This should not exempt them from having participated in a fishing expedition.
Stephen Givens is a business lawyer based in Tokyo.
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