By on October 24, 2019

Legal representatives for former Nissan chairman Carlos Ghosn are requesting Japanese courts dismiss all charges against him on the grounds that prosecutors violated his rights. The filings were submitted ahead of Thursday’s pre-trial hearing before the Tokyo District Court and represent the first real look we’ve had at Ghosn’s defense — which, until now, has just involved him repeatedly professing his innocence.

The core issues focus on accusations of illegal evidence collection and a Nissan-led conspiracy to place him behind bars. But Ghosn’s legal team has also established rebuttals to the charges leveled against him. While those will only come into play if the trial moves forward, we’re skeptical that the case will be dissolved. But let’s begin a little closer to the beginning. 

Ghosn was arrested in November of 2018 on suspicion of financial misconduct. Since then, he’s revolved in and out of police custody on charges that he repeatedly underreported his salary with Nissan, transferred personal financial losses to the company, and attempted to enrich himself by authorizing payments to car dealers in other parts of the world.

During that time, the former executive claimed he was on the receiving end of a corporate coup — while his lawyers accused Japanese prosecutors of trying to muzzle their client by keeping him isolated and offline. The new filing takes things a step further by alleging Japanese prosecutors illegally allowed Nissan employees to do the investigative work for them.

The defense also stipulates that the automaker unlawfully dispatched employees to invade Ghosn’s residences and illegally seize personal property and attorney-client privileged documents. It also questions the handling of privileged notes held by Mrs. Carole Ghosn, who has been prohibited from visiting her husband. Their lawyers have said this is in direct violation of international laws on family separation and Japan’s own constitution.

“The prosecution against him resulted from unlawful collusion between the prosecutors, government officials at METI [Ministry of Economy, Trade and Industry], and executives at Nissan, who formed a secret task force to drum up allegations of wrongdoing by Mr. Ghosn as a pretext to remove him as head of the Alliance,” his attorneys said in a statement on Thursday.

Ghosn’s team is also trying establish proof of a legal bias against him. While some of this revolves around criticism of how long it’s taking the case to reach trail, prosecutors are also targeted for ignoring Japanese executives (like Hiroto Saikawa) who admitted to similar activities. The defense team suggests this may be indicative of the Japanese courts having an unfavorable opinion of foreigners — something the country has a poor track record on.

However, it’s the withheld evidence that’s likely to be the most damning issue. Junichi Hironaka, one of Ghosn’s key lawyers, has stated on multiple occasions that the prosecution has failed to share information. The court filing suggest over 6,000 pieces of digital evidence has been kept away from the defense team. “That remaining evidence is what prosecutors don’t want us to see. So, we can assume that the evidence should be of benefit to us once,” Hironaka explained. “They are withholding evidences, so there is no telling what has been deleted.”

Ultimately, the defense says the entire case was politically motivated and should be dismissed on those grounds. While unproven, recent activities within Nissan and Renault certainly provide a lot of anecdotal evidence that at least two groups were jockeying for power — with Ghosn and company losing out. This does not assure a dismissal, requiring more direct rebuttals to the charges being faced.

Regarding the millions of dollars in unreported compensation, the defense claims Nissan’s securities filings accurately disclosed Ghosn’s payments. Any additional compensation was never committed to by Nissan and therefore never received.

The breach of trust charges will be more difficult to counter, however. Ghosn’s team hopes to show that the transactions in question never caused financial losses at Nissan and were repaid. But the presumed funneling of money through business associates in the Middle East to enrich Ghosn’s family and friends already looks pretty bad. Their play will be to attempt to prove these deals were legitimate by leveraging proof that they had the formal endorsement of other high-ranking Nissan executives.

Despite the trail previously being planned for September, Japan has yet to establish an official date for Ghosn to face his accusers. Japanese media suggests things could finally kick off in the spring of 2020.

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