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Opinions Adopted by the Working Group on Arbitrary Detention at Its Eighty-Eighth Session, 24–28 August 2020

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Opinions Adopted by the Working Group on Arbitrary Detention at Its Eighty-Eighth Session, 24–28 August 2020 A/HRC/WGAD/2020/59 Advance Edited Version Distr.: General 20 November 2020 Original: English Human Rights Council Working Group on Arbitrary Detention Opinions adopted by the Working Group on Arbitrary Detention at its eighty-eighth session, 24–28 August 2020 Opinion No. 59/2020 concerning Carlos Ghosn (Japan)*, **, *** 1. The Working Group on Arbitrary Detention was established in resolution 1991/42 of the Commission on Human Rights. In its resolution 1997/50, the Commission extended and clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the Commission. The Council most recently extended the mandate of the Working Group for a three-year period in its resolution 42/22. 2. In accordance with its methods of work (A/HRC/36/38), on 18 October 2019, the Working Group transmitted to the Government of Japan a communication concerning Carlos Ghosn. The Government replied to the communication on 17 December 2019. Japan is a party to the International Covenant on Civil and Political Rights. 3. The Working Group regards deprivation of liberty as arbitrary in the following cases: (a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his or her sentence or despite an amnesty law applicable to him or her) (category I); (b) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the Covenant (category II); (c) When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III); (d) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV); (e) When the deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can result in ignoring the equality of human beings (category V). * Seong-Phil Hong did not participate in the discussion of the present case. ** An individual opinion of Sètondji Roland Adjovi (partially dissenting) is contained in the annex. *** The annex to the present document is reproduced in the language of submission only. A/HRC/WGAD/2020/59 Submissions Communication from the source 4. Carlos Ghosn is a 66-year-old is a national of France, Lebanon and Brazil. He was born in Porto Velho, Brazil. For more than 20 years, he was the head of Renault-Nissan- Mitsubishi, the first global automobile group. a. Background information 5. According to the source, Mr. Ghosn was arrested four times, each time after the expiry of the 23-day limit for keeping a person in police custody in Japan. In this way, the authorities were able to detain Mr. Ghosn continuously. 6. Each of the four arrests was followed by detention with the same characteristics. According to the source, the detention infringed the rights and dignity of Mr. Ghosn and was intended to force him to confess. The conditions of Mr. Ghosn’s detention included solitary confinement, prohibition on Mr. Ghosn to leave his cell, the deprivation of exercise for several consecutive days, constant light to disturb sleep, and the absence of heating in the cell. 7. During each of his 23-day periods in police custody, Mr. Ghosn was not brought before a judicial authority and he was unable to challenge his detention within this time frame. According to the source, the prosecutor subjected Mr. Ghosn to daily interrogations in the absence of his lawyer. The interrogation sessions were held several times a day, lasting on average five hours, including on weekends and public holidays. The source alleges that the prosecutor attempted to have Mr. Ghosn sign documents in Japanese that he did not understand by threatening to continue his prolonged detention. Furthermore, Mr. Ghosn was refused any family visits while in police custody. 8. In addition, the source states that, during his remand in pretrial detention, which commenced on 11 January 2019, Mr. Ghosn could receive visits from his family members only if they remained behind a glass screen and in the presence of a guard. The guard took notes on the content of the conversations, thereby denying the possibility of confidential discussions during family meetings. According to the source, Mr. Ghosn lost a significant amount of weight while deprived of his liberty, as he was provided with food only occasionally and subjected to poor detention conditions. b. Arrests of Mr. Ghosn 9. Mr. Ghosn was first arrested on 19 November 2018, when he was taken in for questioning upon his arrival at Tokyo airport. According to the source, the authorities had informed the press prior to the arrest. Following his arrest, Mr. Ghosn was detained at Kosuge Prison in Tokyo. On 21 November, Mr. Ghosn’s police custody was extended for 10 days, and then again on 30 November for a second period of 10 days. On 10 December, at the end of the 23-day period of police custody, during which time Mr. Ghosn was questioned daily without a lawyer, and without being allowed to request his release, he was brought before a judge for the first time and charged. Mr. Ghosn was accused of “concealing hypothetical income (bonuses) from the tax authorities”. 10. On 10 December 2018, after Mr. Ghosn had just been charged, the prosecution arrested him a second time, for the same crimes, but allegedly committed between 2015 and 2017. The source submits that this second arrest, which appears to have been based on dividing the same facts into several sequences, allowed prosecutors to open a new period of police custody during which Mr. Ghosn was interrogated without his lawyer in order to obtain a confession from him. 11. According to the source, the judicial authorities had allowed the prosecutors to detain Mr. Ghosn for an initial period of 10 days. However, on 20 December 2018, realizing the procedural manoeuvres being used by the prosecution, the Tokyo Court, and subsequently the Tokyo Supreme Court, refused a request to keep Mr. Ghosn in police custody for a further 10 days. The source argues that this extension of police custody was not necessary, as Mr. Ghosn had agreed to wear an ankle monitor and his passports had been confiscated. The 2 A/HRC/WGAD/2020/59 source emphasizes that it was at this point, while Mr. Ghosn was supposed to be released, that the prosecutor arrested him for a third time. 12. On 21 December 2018, while Mr. Ghosn was still in detention, he was arrested for the third time and taken into police custody for allegedly having Nissan cover “losses in personal investments” during the financial crisis of October 2008, which amounted to 1.85 billion yen (15 million euros). The source notes that these facts, dating back 10 years, had been brought to the attention of the prosecutors in the past in the context of an investigation conducted by the Japanese supervisory authority. However, at that time, the Prosecutor’s Office did not consider it necessary to initiate criminal proceedings. 13. On 23 December 2018, Mr. Ghosn’s third time in custody was extended for an initial period of 10 days, until 1 January 2019. His custody was again extended on 31 December 2018 for a second period of 10 days, until 11 January 2019. On 8 January 2019, Mr. Ghosn, in accordance with article 34 of the Constitution of Japan, briefly appeared before a judge to claim his innocence and to obtain clarification of the reasons for his prolonged detention. On 11 January, Mr. Ghosn was charged with crimes relating to the alleged facts of his second and third arrests. On the same day, he filed a bail application, which was rejected by the Tokyo Court on 15 January. On 18 January, Mr. Ghosn filed a new application for release, which the Tokyo Court rejected on 22 January. On 28 February, Mr. Ghosn filed a third application for release. 14. On 5 March 2019, Mr. Ghosn was released on bail after having spent 108 days in detention. The source notes that the two bail orders issued that same day stated that neither the risk of flight nor the risk of destruction of evidence adduced by the prosecution was present. However, the orders required Mr. Ghosn to fulfil 15 obligations, including having a surveillance camera that would operate for 24 hours a day installed at the entrance of his apartment, and that he would submit a monthly log of his telephone calls Internet search history and all appointments to the court. The source submits that Mr. Ghosn carefully observed the obligations imposed on him, which confirmed the absence of any risk justifying his placement in pretrial detention. Mr. Ghosn was at the full disposal of the courts to be questioned, confronted with witnesses and judged on the accusations made against him. 15. On 3 April 2019, Mr. Ghosn announced that a press conference would be held in Tokyo on 11 April.
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