TOKYO — After Bernard L. Madoff, arguably the most notorious financial criminal of all time, was arrested for defrauding investors in a multibillion-dollar Ponzi scheme, he was released on $10 million in bail the same day. Until his trial months later, he lived and slept in his Manhattan penthouse.
Carlos Ghosn, the global auto chieftain indicted on charges of financial wrongdoing in Japan, can only imagine such freedom. Last week, a Tokyo court denied his lawyers’ bail request for the second time in a single week. He remains consigned to a small cell inside the hulking gray jail where he has been since his arrest in November.
Mr. Ghosn, 64, who until recently helmed a global car-making empire that united Nissan and Mitsubishi of Japan and Renault of France, has been indicted on charges that he underreported his income by more than $80 million for years and temporarily transferred personal investment losses to Nissan while he was chairman and chief executive.
His lawyers have said Mr. Ghosn, who denies all allegations, could remain in custody for months. In the most recent court decision, he was denied bail even after he promised to surrender his passports, rent an apartment in Tokyo and pay personally for an ankle bracelet and private security guards.
Mr. Ghosn’s predicament has turned a laser focus on the Japanese criminal justice system. Westerners — and particularly foreign businesses — are incredulous over the power that prosecutors have wielded. The lawyers can detain defendants for more than three weeks before bringing charges, arrest suspects multiple times to extend their detention and interrogate them without their counsel.
“That is exactly what Kafka was writing about in his novels about dystopian societies,” said Phil Telfeyan, executive director of Equal Justice Under Law, an American advocacy group. “That is really far beyond what we would expect from a society that offers due process rights.”
In an open letter to the Japanese authorities published in the daily Le Monde last week, a group of 50 French lawyers rallied behind Mr. Ghosn. As the head of Renault, Mr. Ghosn was responsible for a car company that employs tens of thousands of workers. The lawyers bluntly accused Tokyo prosecutors of trying to obtain “forced confessions.” By keeping Mr. Ghosn in jail for two months, they said, prosecutors were trying to “weaken his defenses.”
Another French daily, Liberation, ran an editorial headlined: “This is not how it should work in a healthy society!” This weekend, President Emmanuel Macron of France told reporters that he had expressed concern to Prime Minister Shinzo Abe of Japan about the “very long” and “harsh” conditions of Mr. Ghosn’s detention.
In the Diplomat, an online magazine published in Tokyo, Brad Adams, Asia director for the advocacy group Human Rights Watch, criticized Japan for the practice of questioning defendants without their lawyers and of extending detentions, week after week. “This is an approach to the rights of accused people that one would expect in a dictatorship, not in Japan,” he wrote.
Former detainees have described jail conditions in Japan, where they are locked in cells of about 160 square feet, with tatami mats on the floor and toilets in the corner. They are allowed 30 minutes of exercise, three days a week, and eat meals with rice and miso soup. When Mr. Ghosn appeared in court — to ask for an explanation of why he was being held as well as to declare his innocence — the once robust executive was sallow-cheeked and thin.
Mr. Ghosn resigned from Renault after the court’s latest refusal to grant bail. Renault had said it has seen no evidence of financial misconduct by Mr. Ghosn, but the carmaker was eager to resolve weeks of strained relations with Nissan and Mitsubishi.
Mr. Ghosn signed the letter of resignation, ending a nearly 20-year career, from his jail cell.
The bail decision has spurred outrage. In an interview, Mr. Adams noted that Japan is a signatory to a United Nations treaty that states in criminal proceedings “it shall not be the general rule that persons awaiting trial shall be detained in custody.”
About a quarter of defendants in Japan were released on bail before trial in 2015, according to the latest data from the Japan Federation of Bar Associations. Among those who assert their innocence, the bail rate fell; one in about 13 defendants was granted bail.
Legal experts say prosecutors rely on a clause in Japan’s Constitution that permits courts to deny bail if they deem suspects at risk to tamper with evidence. A defendant who claims innocence is “almost automatically deemed a defendant of some probable cause to hamper evidence,” said Takashi Takano, a criminal defense lawyer in Tokyo.
When Mr. Ghosn appeared in court, the judge told the millionaire that he was being held because he was a flight risk and might conceal evidence.
In the United States, suspects who are not charged within 48 hours must be released. “From the moment you are arrested you are given a bail amount,” Mr. Telfeyan said. “And if you can afford it, you are free within moments of your arrest.”
A notable exception in the United States — and a criticism — is that there is an income disparity in its justice system. The Madoff arrest in 2008 is an example: Wealthy defendants have the means to avoid detention. Low-income defendants often face a fate similar to Mr. Ghosn’s. According to data from the Prison Policy Initiative, last year about 536,000 people sat in jail on any given day in the United States, simply because they could not afford bail.
And in France, where suspects are generally held in jail for a maximum of two days after being charged, suspects — particularly foreigners — can be kept in custody if judges rule there is a risk they could flee the country. In some cases, people have been detained up to 12 months.
Japanese critics of their country’s justice system say prosecutors want bail to be denied so they can wear down defendants. They are, for all practical purposes, seeking confessions. Close to 90 percent of suspects who are indicted do confess, according to Bar Association data. If they confess, they are more likely to be granted bail.
“If you deny the charges, you will be detained for a very long time,” Mr. Takano said. “This message is very clear.” He said some defense lawyers advised clients to confess simply to “get it over with.”
Japanese courts tend to interpret the notion of evidence tampering broadly. In Mr. Ghosn’s case, experts said the court might have been concerned that, once free, he could pressure former subordinates.
“The court still considers him a person of great influence” who could pull strings at Nissan, said Yasuyuki Takai, a prosecutor turned defense lawyer who advised Takafumi Horie, an internet tycoon who was found guilty of violating securities laws a decade ago.
On Monday, Nissan confirmed that it had received an inquiry, after the arrest of Mr. Ghosn, from the Securities and Exchange Commission. Nissan would not elaborate but said it was cooperating fully. Nissan was indicted by Tokyo prosecutors for its role in Mr. Ghosn’s financial filings.
Speaking to reporters last week, Shin Kukimoto, deputy chief prosecutor at the Tokyo District Prosecutors’ Office, declined to give much rationale for Mr. Ghosn’s detention; he said Japanese courts did not usually employ ankle bracelets for bailed defendants.
Some people who have been detained in Japan have reported surreal interrogations.
Atsuko Muraki, a former top welfare ministry bureaucrat who was arrested for postal fraud and exonerated after a key witness retracted his testimony, spent five months in detention in 2009. In her memoir, she said a prosecutor had repeatedly tried to make her sign a statement with false quotes attributed to her.
“I never said that, so I cannot sign this,” Ms. Muraki recollected. The prosecutor told her that such fabrications were typical and that “there may be some exaggerations.”
The logic behind denying counsel is simple, as one judge described it. Prosecutors “do not want to be in the same room with a suspect’s lawyer because that is the prosecutor’s enemy,” said Hiroshi Segi, a former Tokyo District Court judge. “They don’t want to conduct their business while their enemy is present.”
Mr. Ghosn’s wife has appealed to Human Rights Watch to petition the Japanese government for his release. The advocacy group has demurred, pointing out that the Ghosn case should “make Japanese lawmakers rethink their system” but that his case is not an outlier.
Poor suspects without access to media or high-priced lawyers suffer the same treatment, said Mr. Adams of Human Rights Watch. “Of course we are concerned about his rights,” he said, “but we’re really concerned about the people unknown and never to be known.”