Response of the Government of Japan to the Opinion by the United Nations Working Group on Arbitrary Detention dated November 20, 2020

1. In November 2020, the United Nations Working Group on Arbitrary Detention (hereinafter referred to as “the Working Group”) adopted an Opinion that the measures applied to the defendant Carlos Ghosn, by the Government of Japan constitute arbitrary detention. The Government of Japan considers this Opinion adopted by the Working Group on Arbitrary Detention to be unacceptable, and made an objection against the Opinion in the same month it was adopted.
　 As a result of the further examination, the content of the Opinion was found to be based on clear factual errors. Since this Opinion could also cause misunderstanding of Japan’s criminal justice system, the Government of Japan specifically pointed out these factual errors and submitted views opposing the Opinion of the Working Group on May 18 this year.

2. The following shows that the facts found to be erroneous.
(1) The opinion that, following his arrests, defendant Ghosn, was held for periods of 22 days, 10 days, 19 days and 21 days respectively without being brought before a judge.
　 In the proceedings conducted in accordance with the provisions of Japanese law, it is a fact that during each of his four detentions, defendant Ghosn was promptly brought before a judge who had received a request for his detention.
(2) The opinion that the provision of opportunities for defendant Ghosn to challenge his detention before a court was delayed.
　 Defendant Ghosn was entitled under Japanese law to file an appeal against a decision or a request to rescind the detention any time after his detention, and in fact he did file his quasi-appeals on the same days as the decisions on his detention were rendered.
(3) The opinion that the repeated arrests of defendant Ghosn were abuses of process, the second and third arrests of defendant Ghosn, were intended to circumvent the time limit for police custody, there was significant doubt as to the lawfulness of police custody following his second and third arrests.
　 Each of defendant Ghosn’s four arrests and detentions were made respectively for four different alleged facts, each of them passing strict judicial reviews. In other words, in each of defendant Ghosn’s four cases of arrests and detentions, each time, a judge, who is independent of investigative authorities, issued an arrest warrant and a detention warrant based on his/her finding that requirements for arrest and detention are met and that the arrest and detention would not be unjustifiable re-arrests or re-detentions, after carefully examining each of the alleged facts, which differ in terms of dates/time and the elements of the crime concerned. Therefore, none of the arrests and detentions were made in order to circumvent a time limit, none amount to abuse of process, and there is no doubt of their lawfulness.
　 In addition, the location where defendant Ghosn was detained was the Tokyo Detention House, which is independent from any investigative authority. If the allegation of “police custody” means defendant Ghosn was detained at the police detention facility, it is a clear factual mistake.
(4) The opinion that the process of arresting and detaining defendant Ghosn four times was fundamentally unfair, as it prevented him from enjoying other fair trial rights, including to freely communicate with legal counsel.
　 Under Japanese law, suspects who are arrested and detained have the right to speak with their defense counsel privately without any official being present. During his custody, with the exception of Sundays and New Year’s Day (January 1), for instance, defendant Ghosn met with his defense counsels almost every day without the presence of any official, including detention center officials and investigation agency officials.  Frequently, the same or different defense counsels met with defendant Ghosn multiple times in the same day. Moreover, it should be noted that defendant Ghosn’s time with the defense counsels was never restricted at the Tokyo Detention House.
(5) The opinion that defendant Ghosn was detained in conditions that compromised his ability to effectively defend himself, including the deprivation of exercise, constant lighting, and the absence of heating.
　 In general, detainees are given the opportunity to exercise on weekdays, outdoors as much as possible, for more than 30 minutes a day, and for as long as possible. Especially in the Tokyo Detention House where defendant Ghosn was arrested and detained, in addition to outdoor exercise, there was time available for indoor physical exercises twice a day (15 minutes each), everyday including on holidays.
　 Moreover, the expression in the Opinion suggesting that constant lighting at the Tokyo Detention House interfered with defendant Ghosn’s sleep is quite misleading since the Detention House only has night-lights that are lit to the extent that the officials can see inside the rooms during bed time hours.
　 Furthermore, at the Tokyo Detention House, all detention rooms are equipped with air-conditioning with heating ability throughout the building.
(6) The opinion that defendant Ghosn was detained in circumstances in which he was effectively forced to provide statements.
　 The Constitution of Japan prescribes that no person shall be compelled to testify against himself and Japanese law stipulates that the suspect must be notified in advance that said person is not required to make a statement against said person’s will in the case of the interrogation. In defendant Ghosn’s case, he was also informed of his right to remain silent during the prosecutor’s interrogation.
　 The interrogations of defendant Ghosn that were conducted were all recorded by audio and video from the beginning to the end. During this process, defendant Ghosn denied the facts of the crime, challenged the prosecutor, or remained silent, and it is apparent that he was speaking very freely.
　 In addition, as mentioned above, defendant Ghosn was able to and did meet and consult with his defense counsel almost every day.
 　Therefore, it is clear that a situation in which defendant Ghosn was forced to provide written statements does not exist.

3. For this reason’s above, it is deemed that the Opinion includes numerous factual errors.
　 The Government of Japan again points out that the measures against defendant Ghosn cannot amount to arbitrary detention.
　 The Government of Japan expresses its intention to continue providing clear explanations in order to facilitate the international community’s correct understanding of Japan’s criminal justice system, and operating appropriately Japan’s criminal justice system.

 
 
[Reference] The Working Group on Arbitrary Detention
　 The Working Group on Arbitrary Detention is a group of experts established by a resolution of the United Nations Human Rights Council to investigate cases of arbitrary detention. The Working Group examines whether an individual case falls under arbitrary detention, and if it is considered to fall under arbitrary detention, the Working Group adopts its opinion and publishes it. The views of the Working Group are not the views of the United Nations or its bodies, including the Human Rights Council, and are not legally binding on Japan.

 
 
[Website] Ministry of Foreign Affairs
　 The Government of Japan's objection against the Opinion of the UN Working Group on Arbitrary Detention regarding the case of the defendant Carlos Ghosn (November 23, 2020)
 https://www.mofa.go.jp/press/release/press3e_000135.html