For the first time since he was arrested on Nov. 19, former Nissan Chairman Carlos Ghosn is expected to appear in public for the first time during a hearing on Tuesday where Tokyo prosecutors have been tasked with justifying his continued detention before the court.
Ghosn's lawyer on Friday demanded the hearing, which was granted by the court and set for Tuesday. Under Japan's Constitution, allows those who have been charged with crimes to request a hearing where prosecutors must elaborate on the reasons for their detention.
While the hearing is unlikely to lead to his early release - as of now, he can be held until Jan. 11, though his term of detention may be extended again, as it has already been extended three times - WSJ said it could delay prosecutors who are working to build their case.
Japan’s constitution, mostly written by U.S. occupation forces shortly after World War II, allows people who have been arrested to demand an open court session at which the reason for their detention must be given. The provision, part of Article 34, is a version of the habeas corpus rights rooted in centuries of Anglo-American law.
Mr. Ghosn’s lawyer demanded such a hearing on Friday, and the court set it for Tuesday morning. The detainee is typically allowed to make a statement at the hearing.
Court data show that detainees in Japan rarely demand a hearing under Article 34, in part because it is unlikely to lead to their release. Only 583 requests were made in 2017, according to national statistics, out of hundreds of thousands of criminal cases. The judge at the hearing can fulfill the constitutional requirement simply by repeating prosecutors’ allegations and their reasons for wanting detainees behind bars, such as the risk they might destroy evidence if released.
However, Mr. Ghosn could delay prosecutors’ work by forcing them to prepare for the hearing. Also, the chance to give his side could influence local media and public opinion, improving the environment for an eventual trial even if it doesn’t immediately change the basic contours of the case. The trial is likely to be held before a three-judge panel.
It has been more than six weeks since Tokyo prosecutors boarded Carlos Ghosn's private jet and arrested the legendary auto executive, setting off one of the biggest corporate scandals of the year. And in the intervening period, prosecutors have piled on additional charges to allegations that Ghosn conspired to mask his true compensation from regulators and repeatedly extended his detention. Ghosn, whose dramatic rise and fall was recently the subject of an extensive New York Times profile, has already been charged with masking his income during a period stretched from 2010 through this year, and with shifting personal trading losses to Nissan.
And earlier this week, as Ghosn's lawyer maneuvered to have his client released, it appears that Tokyo prosecutors (or perhaps Nissan insiders working to undermine their former leader) have leaked another batch of allegations about Ghosn's alleged wrongdoing. Following reports that Ghosn set up an internal Nissan slush fund to pay off a business run by Saudi associate Khaled al-Juffali, Nikkei Asian Review (a favorite repository for Ghosn-related leaks) reported Thursday that the same fund was also used to make payments to Nissan dealers in Oman and Lebanon received $32 million and $16 million (though the story didn't cite a reason for the payments, the implication is that the payments may have been a reward for helping Ghosn in some way, perhaps with shifting his trading losses).
Nissan dealers in Oman and Lebanon received $32 million and $16 million, respectively, through Dubai-based Nissan Middle East, the sources said. This occurred around the same time that Ghosn paid a total of $14.7 million to a business run by Saudi associate Khaled al-Juffali, allegedly as compensation for help covering personal losses in the wake of the 2008 financial crisis.
Each of these payments came out of Nissan's "CEO reserve," an internal fund that Ghosn could tap at his discretion. Tokyo prosecutors, who have accused Ghosn of breach of trust over the al-Juffali payments, suspect that the ex-chairman may have had the fund set up to handle private issues. Investigators are looking into whether the ex-chairman diverted cash from the reserve for other personal uses outside the scope of those allegations.
Whether the Yokohama-based automaker made similarly large payments from the CEO reserve to other dealers elsewhere in the Middle East has not been confirmed, the sources said. Ghosn was raised in Lebanon.
The CEO reserve was set up at Nissan Middle East at Ghosn's request around December 2008. This was not long after Ghosn's personal asset management company suffered heavy paper losses on a currency swap contract with Shinsei Bank.
Ghosn has maintained that the payments to al-Juffali were legitimate payments for services rendered. So far, the Ghosn scandal has been marked by allegations and speculation that has been leaked to the press, only some of which has been followed up with formal charges. Ghosn has also been accused of procuring a no-show consulting position at Nissan for a relative, and with using "corporate housing" in Brazil and Lebanon purchased by the company as homes for his family.
Ghosn and his allies have sought to portray the charges as an extension of a palace coup inside Nissan, where Ghosn's underlings were allegedly growing weary of his bruising management style. Recently, thanks largely to the NYT, that narrative has started to gain some traction.