Former Chairman Ghosn's flight to Varennes "secret" investigation material online? March 5, 18:59

A runaway drama to Lebanon in the Middle East, where former Nissan Motor Chairman Carlos Ghosn surprised the world.

It turned out that the "secret" investigation materials of the Tokyo District Public Prosecutor's Office, such as the images taken by the security camera and the remittance record of Ghosn's bank account, can be viewed online.

However, it was not illegally leaked due to cyber terrorism or virus infection.

The keyword is "right to know".

What on earth is happening?

Reporters in charge of the case thoroughly interviewed in Japan and the United States.

(Social Affairs Department reporter Yoshinami Hashimoto, US General Bureau reporter Toshifumi Oikawa)

why?

"Top secret" investigation materials

Last December 22, Kasumigaseki Judiciary Press Club in Tokyo.

I (Hashimoto) doubted the contents of the file sent from the reporter of the US General Administration in New York.

A letter sent by the Tokyo District Public Prosecutors Office to the US Department of Justice to inform the progress of the investigation into the escape case of former chairman Ghosn.

The letter was written on the 21st of the previous day.

It is a "secret" material with the signature of the prosecutor of the Special Investigation Department.

In the United States last May, two U.S. Army Special Forces former members Michael Taylor and his son Peter Taylor, who had been arrested by the Special Investigation Department on suspicion of helping former Chairman Ghosn escape, were detained. At that time, the focus of the interview was when he was transferred to Japan.

Judiciary reporters want the investigation materials of the Special Investigation Department to be out of their throat.

However, the prosecution's secret barrier is so thick that it is impossible to see the raw investigation materials, and even while the investigation is in progress, no matter how many times the interviews are repeated.

At that time, in New York

How did the US General Administration get this file?

I really wanted to know.

When I contacted the reporter Oikawa who sent it, he said that it was downloaded from a (Pacer) website called "PACER" operated by an American court.

Reporter Toshifumi Oikawa

"I was really surprised when I was assigned to New York. It is absolutely impossible in Japan to get investigation materials with just one click."

The site has been in operation 20 years ago, and many of the documents and evidence submitted to federal court trials are stored as electronic records, which anyone can view and copy by registering an account.

At that time, a federal district court in eastern Massachusetts was in a trial disputing whether to allow the two to be transferred to Japan.

Since the investigation materials of the Special Investigation Department were submitted to this trial, it could be downloaded as a trial record through the site.

It costs $ 1 to view 10 documents, but more than 1 billion documents can be viewed and more than 3.6 million users.

There is also a search function, and if you register a trial you are interested in, you will be notified by e-mail every time a new record is submitted.

Security camera images and bank transaction records

By using this site, it is easy to record a large amount of security camera images that record the whole story of the domestic trend of Taylor's parent and child who joined Ghosn, and the transaction record of Ghosn's bank account. I was able to get it.

There is a black part, but from the transaction record, in October before the escape, about 91 million yen was remitted to the suspect's company twice from the bank account of former chairman Ghosn. New facts that could not be seen in domestic interviews were also revealed.

Why are American courts so active in disclosing information? I decided to work with reporter Oikawa to find out why.

"Publication of trial records" In Japan?

To what extent is "publication of court records" permitted in Japan in the first place?

In both Japan and the United States, "publication of trials" is guaranteed by the Constitution, but in Japan, viewing of trial records by third parties is considerably restricted.

Records of civil trials can be viewed by a third party by visiting the court, but copying is prohibited and they cannot be viewed online.

If privacy or trade secrets of a company are included, viewing is often restricted if the parties complain.

Viewing criminal trial records is even more difficult and cannot be viewed by a third party until the decision is finalized.

Once the decision is finalized, the records are kept by the public prosecutor's office and, in principle, can be viewed by anyone.

However, the prosecution may refuse the request for inspection under the exception provisions of the law, such as "when there is a risk of seriously damaging the honor of the parties concerned or the peace of life".

In reality, even if a third party, including a reporter, requests viewing, it is often rejected or most of the records are blacked out except for the judgment.

It has been pointed out that "the" principles "and" exceptions "are reversed."

One of the Japanese prosecution executives who interviewed revealed the reason as follows.

Prosecutor's executive

"It is a fact that the public

prosecutor's

office attaches great importance to the protection of victims, so it is a fact that the protection of the privacy of victims tends to be prioritized over the benefits of viewing by a third party. There is also a risk, and I am reluctant to allow viewing by a third party. "

Why is America open to the public?

I asked a former judge in the United States

What about America?

Some of the court records may be kept private for reasons such as privacy protection.

It is the judge, not the prosecutor, who decides whether or not to do so.

A former judge in the Federal District Court for New York, who interviewed, emphasized that democracy has a "right to know" for all citizens and that court records should be shared.

Former Judge Sheila Sheindrin

"Everyone has

a'right to know'what

is going on in court in democracy and should not be kept secret. In Britain during the absolutist era, trials are held in closed rooms. It was said that this is not a dictatorship. In principle, all records and documents submitted to the court should be shared by the public, which also leads to the trust of the trial and the prevention of fraud. "

Can't take notes in court?

Revived "legendary trial"

The way of thinking about "open trial" that is very different between Japan and the United States.

Thirty-two years ago, a "legendary trial" decision was handed down to symbolize the difference.

It is a "court memo lawsuit".

In fact, in Japan, in principle, even taking notes in court was not allowed except for reporters belonging to the Judiciary Press Club.

Lawrence Repeta, an American lawyer, had a strong question about this.

Repeta has been listening to tax evasion cases held in the Tokyo District Court every time since 1982 to study the regulation of the Japanese stock market.

However, when I tried to take notes, I was stopped by the court.

Repeta submitted several "permit requests" to the presiding judge to take notes, but each time he was rejected.

For this reason, he accused the country of arguing that the ban on court memos violated the constitution that guaranteed "the right to know" and "publication of the trial."

Lawrence Repeta

"Why can't I take notes in a public court? I didn't understand at all. I know how the courts, not just Congress and the administration, solve various problems. There are "rights"

Both the first and second trials dismissed the proceedings, and the second trial pointed out that "if there is a risk of affecting the smooth operation of the proceedings, it is not unconstitutional to prohibit memos."

However, on March 8, 1989, the en banc of the Supreme Court granted the freedom to take notes in court, saying, "Unless there are special circumstances, it should be left to the discretion of the listener."

In the afternoon of this day, courts nationwide removed the "Memo prohibited" sign from the bulletin board in front of the court and lifted the ban on court memos.

It was an event that could be called a "revolution" in the history of Japanese trials after the war.

How does Repeta view the Japanese judiciary, which is reluctant to "disclose court records"?

Lawrence Repeta

"'Open trial' should have a broader meaning. It is not enough to take notes to understand the content of the trial, but to look at the various evidences and documents submitted by the parties. I think Japanese courts should respect the "right to know" more. "

“Private court records” may damage national interests

Some experts point out that Japan's reluctance to "disclose court records" may damage national interests.

We spoke with Ryan Goldstin, director of the Tokyo office of a major US law firm and experienced in international patent proceedings.

Attorney Ryan Goldstin

"In Japan, there is a value that" the trial should be kept private. Fighting in the trial itself makes the impression of the company worse ", but it cannot protect intellectual property and technology, and it costs tens of billions of yen. Many companies have lost their profits. The principle of trials is to be open to the public, and there is a risk that corporate secrets will be made public, but it is also a place to claim rights. Companies in Europe, the United States, China, and South Korea are actively using lawsuits. If nothing is done, Japan will be left behind in the global society, which may damage national interests and corporate value. "

"Publication of court records" To what extent digitalization is the focus of discussion

Release of Japanese court records, which are pointed out to be behind even in the world.

It turned out that the way it should be could be reviewed by digitizing the trial.

The government plans to fully implement IT in civil trial procedures by 2025, and if it is realized, paper-based trial documents are expected to be digitized at present.

In that case, for civil trials, documents submitted to courts can be viewed or downloaded online as in the United States.

In the interim draft of IT, which was announced by a subcommittee of the Legislative Council last month, there are two proposals, one that allows only the parties to browse the Internet and the other that allows some documents such as judgments and allegations to be allowed to third parties. Choices are shown.

If it could be viewed by a third party, it would be a welcome flow for us journalists.

The flow of non-disclosure due to digitalization

But the story is not so simple.

In recent years, with the progress of digitalization in the United States, the amount of information that is not disclosed in court records is increasing.

Former judge Stephen Smith

"The information spread quickly on the Internet and the risk of misuse of bank account numbers and social security numbers has increased. Personal information must be avoided from being leaked from the court. Unfortunately, the courts need to be more careful about what should be kept private. "

What to do in Japan?

What should be the "publication of court records"?

Professor Yasuomi Sawa of Senshu University, a journalist who is familiar with the trials in Japan and the United States, points out that it is time for a wide range of discussions in Japan.

Professor Yasuomi Sawa

"In the United States, case

law

records are called" public records. "Public is translated as" public "and has the image of" public ", but in reality, it is used to mean" all citizens. " In Japan, there is an image that trials are a means of resolving disputes involving only the parties, but they have a major role to play in creating social rules by accumulating judicial precedents. Due to privacy issues, the damage suffered by the parties concerned is neglected. It shouldn't be, but we should broadly discuss whether the disclosure of case law should remain the same. "

Who owns the "trial record"?

Why can the "secret" investigation materials of the Ghosn case be viewed online?

The interview, which began with that question, posed us with the essential questions of "what is a trial" and "what is democracy?"

It may not be necessary to imitate the "American style" as it is.

Still, who does the "trial record" belong to?

I think it makes sense to deepen the discussion.

Kaname Hashimoto, a

reporter from the Social Affairs Department, is in

charge of justice and

covers many

international economic cases

such as the

Ghosn case and the

Panama

Papers.

America Directorate reporters

Toshifumi Oikawa

incidents and accidents, in addition to the disaster

presidential election,

such as racial discrimination problem interview