Kazuaki Shimazaki comments

Posted in: Estranged Australian husband freed after trespassing to find his children See in context

@therougouToday  07:46 pm JST

He's saying Damned if you do, damned if you don't.

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Posted in: Estranged Australian husband freed after trespassing to find his children See in context

Simon FostonToday  10:53 am JST

It seems that he was caught red-handed so surely the police shouldn't have needed to spend a month waiting for a confession.

Well, at least in this case. the confession is good for both sides. It avoids the mess of the defense trying "fact-jamming" - you know, the type where you know you did it but your lawyer still goes all "With which eye did you see me doing it". Or how are you going to prove I did it intentionally? Given this case, it can be dealt with, but it eats up time and resources.

On the defendant side, it allows at least some notation of repentance to be inserted into the record. It's not even inconceivable that if he had confessed before his 23 days cut out (the sooner the better) he might have gotten a kiso yuyo rather than a criminal record. As it is, the fact he spent a month in the slammer might have been the margin between a suspended sentence and a sentence with real time.

As a third-party watching this, it is one thing to try defending if there are real points of law or fact you can dispute, but this is basically refusing for the sake of refusing.

I would be more surprised if he actually had much access to lawyers or legal advice.

These days, if you ask for a lawyer, they'll let them meet, especially since this guy has consular assistance.

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Posted in: Estranged Australian husband freed after trespassing to find his children See in context

The dummy could have saved himself most of the month by quickly confessing. He can't escape. He has been caught in flagrante violation and charged of violating Article 130.

A person who, without justifiable grounds, breaks into a residence of another person or into the premises, building or vessel guarded by another person, or who refuses to leave such a place upon demand shall be punished by imprisonment with work for not more than 3 years or a fine of not more than 100,000 yen.

He can't deny he has entered the building, can he? Intentionally. That satisfies the formal requirements.

As for substantiveness and justifiable reasons, he may think that trying to see his kids count, but it actually works against him. The crime's defended legal interests are (by academic commentary and judicial practice) the right of control (管理権) and secondarily the right to peace (平穏権). Unlike any visitors or regular outsiders who are tolerated in the common area, he is clearly an unwelcome presence for at least one tenant or owner and thus the right of control works to keep him out, and he can reasonably foresee this. Further, if he actually gets into contact with the kids, it would cause conflict and thus infringe the right to peace as well. The more so if he refused police orders to leave.

He is completely black on this question. I'm surprised his lawyer did not tell him that. Did he ignore the legal advice? Heck, the prosecutor or police can tell him that. Once the law is clarified for him, he should easily understand the only path for him is to throw himself at the mercy of the system.

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Posted in: Are child crusaders, heroes fair game for adults who snipe? See in context

@arrestpaulJan. 14 07:37 am JST

She should be in school. It's a time honored tradition. But Greta Thunberg isn't just ditching school, she encouraging other children NOT TO GO TO SCHOOL. I find it strange when adults advocate for Greta Thunberg's DO NOT GO TO SCHOOL diatribe.

Here is a question. Do you support the right to strike or to advocate others to strike?

If you do, then you cannot complain because fundamentally they are the same mechanism. To not "work" as a form of advocacy and also a form of coercion to push for the desired change.

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Posted in: Ghosn says French envoy told him of inside plot See in context

@expatToday  12:11 pm JST

His account is far more believable than theirs is, particularly because they have produced no compelling evidence that does not also implicate Nissan.

Nissan has already pleaded guilty, mooting this point.

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Posted in: Ex-captive Japanese journalist sues gov't over passport denial See in context

Turkey is a part of "Europe" - I guess the MoF people just saw through that ruse.

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Posted in: Ghosn's Japan lawyer: Questioning averaged 7 hours a day See in context

@sakurasuki Today 01:04 pm JST

Seeing interrogation schedule from Takano's blog, it's not coincident that interrogation start after lunch time where they can get an uninterrupted for interrogation even there are breaks during interrogation. Even time is longer because translation it will take longer time, it's still interrogation time, it proves interrogation an use that lengthy interrogation time can last up to 8 hours.

The point is that there is no decisive contradiction between what the prosecutor said and what Takano said, yet Takano (and this news report) is trying to manipulate the less diligent into believing that. Unfortunately, since technically Takano did remember to say "including breaks" everything he said is truthful and in the public interest, which excludes the criminality of the defamation.

@StevieJToday 07:33 am JST

This is Japan's excuse anytime any of their backwards laws/nuances get called out.

The whole culture thing can get overdone, yet it is also important to accept the margins of appreciation in each country, and to occasionally look at whether your own values are as well justified as you think they are.

Take the "lawyer thing". Let's start with the assumption that abuses are in the minority. Otherwise, in essence you are accusing the prosecutors and police of abuse of authority. What happened to THEIR presumption of innocence?

Let's also accept that once the lawyer is in the room, useful interrogation is at an end. So basically, in an attempt to eliminate a small minority of abuses, you are giving up ALL of what an interrogation can bring. To maintain an effective criminal justice system, this shortfall will have to be made up in other ways which is not limited to lengthier and more expensive investigations.

In reality, it is made up through the threat of long imprisonments and accepting lower standards for at least half (subjective part) of the solution. To save them from the "torture" of a few weeks of interrogation we threaten them with a few years or even decades in prison. Why that sounds like a tradeoff that MUST be accepted can be questioned.

Or the ankle bracelet thing. The premise of all bail is that the flight risk is minimal to none. If significant risk is assessed, then he should not be granted bail. So what is this ankle bracelet? If the flight risk is minimal to none, the privacy invasion from the ankle bracelet is unjustified. If the flight risk is significant, he should simply be kept behind bars. An ankle bracelet is saying "I don't think you are a flight risk but I act as if you are anyway".

Isn't that schizophrenic?

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Posted in: Ghosn tells Japanese media he has plenty of documents to prove innocence See in context

@Asiaman7Today 06:50 am JST

You know, Ghosn could have ended a lot faster in Japan if he had agreed to the charges. They might even give him a kiso yuyo rather than dragging him to court if he agreed to quit and "voluntarily" pay back money - after all, that's what he effectively ended up doing with SEC.

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Posted in: Ghosn tells Japanese media he has plenty of documents to prove innocence See in context

@sakurasukiToday  01:41 pm JST

I did hear this part of the conference and find it weak. Again, remember that the primary purpose of the law is to ensure that investors are fairly informed. Again I return to the scenario I laid out above. Would you appreciate or even understand not being informed about an expenditure that would mean the end of the company (and thus the loss of your investment) on the excuse that technically it has not been finalized, so they are not completely sure if it is (for example) 800 million or 1 billion?

I think what you would expect is the amount written out on your report as either 1 billion (to be conservative), 800-1000 million, or AT LEAST 800 million. Not it did not appear.

People have asked as to whether Tanaka was aware of all the facts when he gave his opinion, but even the facts given to him is pretty damning. Ghosn's lawyers have quietly given up on trying to say he didn't expect it or he had no knowledge about it or any such thing that might really exonerate him, but asked for a law interpretation on a technicality that all the procedures were not completed and the precise amount not yet locked in.

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Posted in: Ghosn tells Japanese media he has plenty of documents to prove innocence See in context

Asiaman7Today 07:14 am JST

“I have my doubts,” he said about the charges related to pay, saying that such remuneration would have to be proposed by the board and approved by shareholders, according to Japanese company law. “It’s difficult to say it was a done deal that he would have received the compensation, so it probably can’t be charged as falsifying records. I think quite a few legal scholars would have that opinion.” — Wataru Tanaka, Tokyo University, Department of Comparative Contemporary Law

Typical academic opinion. Basically, what this is saying is that even if everyone in the know (insiders) expects the expenditure (Ghosn's income is at Nissan's expenditure), they can deny its existence as long as the formalities have not been finished and/or the money is not actually transferred.

Expected expenditures are never a done deal. Even if you owe a loanshark 10 million dollars due tomorrow, he MIGHT just forget to come pick it up. You might also choose to not pay it and try escaping the country instead. Does that mean it's not an expected expenditure?

The entire purpose of the financial report is so that investors are fairly informed of the financial situation and general health of the company. Expenditures and liabilities in particular must be reported.

Suppose that the expenditure is one that will spell the doom of the company when it hits, which is due on the day after the report's promulgation. According to Tanaka, if the formalities were not finished and the money is not yet transferred, it does not have to be put in the report as an expenditure. How happy would you be if you were a shareholder?

You won't be happy. In fact, you might be screaming as to whether it was impossible to have noticed this expenditure and have it put on the previous report, so you actually have time to do something.

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Posted in: Japan asks Interpol to issue red notice for Ghosn's wife See in context

@Jonathan PrinJan. 10 10:44 pm JST

in the messages of Carole's phone, it is said she only asked for her acquaintances not to reply to prosecutors. That is her right to have an opinion (how can she "demand", she is not the pope!). Moreover, sending an email is not "meeting" people. You get a reply for a question.

She's sending large batches of money to people at the same time she's "asking" them not to cooperate? Do you really think this can be passed off credibly as a "gift"? There is a certain murk between gifts and bribes, but if the demands are concrete rather than abstract, then we are definitely in bribe territory.

Depending on her exact wording, her "ask" may qualify for Article 104 with her as the instigator (rather than the principal).

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Posted in: Japan asks Interpol to issue red notice for Ghosn's wife See in context

@JJ JetplaneToday  06:34 pm JST

That does not prove perjury. At best it can be construed as obstruction. Actions taken after the interrogation does not prove prior knowledge.

Ah, but it can be used as objective evidence to prove intent. Perjury is the easiest charge to get to the suspicion level. For the objective side, all you need to do is show a discrepancy between what she said and what a more credible (which is easy because she's the Defendant's wife) source said. That leaves the subjective side. A confession is best, of course, but the fact she's the wife and a little objective evidence should go a long way.

There's no need to use all the charges at once. Each only has 23 days in them. Of course you want to each one in sequence.

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Posted in: Japan asks Interpol to issue red notice for Ghosn's wife See in context

vic.MToday  05:45 pm JST

https://japantoday.com/category/crime/arrest-warrant-issued-in-japan-for-carlos-ghosn%27s-wife

In a statement, prosecutors said they had obtained the warrant on suspicion she made false statements during April testimony to the Tokyo district court about meetings with an unnamed individual.

And it seems they found more dirt than that - refer to Mainichi report.

https://mainichi.jp/english/articles/20200110/p2a/00m/0na/014000c

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Posted in: Japan asks Interpol to issue red notice for Ghosn's wife See in context

A red notice for perjury? Is that a joke? There are over 7000 current red notices and not a single one is for such an minor crime.

Perjury shakes the core of the criminal justice system. It might not be prosecuted that often, but it is not a "minor crime". Also,

https://mainichi.jp/english/articles/20200110/p2a/00m/0na/014000c

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Posted in: Lebanon issues travel ban for Ghosn See in context

@wtfjapan Today 11:52 am JST

and you have just proved Ghosn point right there, in a proper judicial system the prosecutors have to show all the evidence/documentation they have against the accused so the defense can prepare a defence, that's how a fair judicial system works

You are too optimistic, unless you mean to say a system that may not exist. Consider:

https://www.pewtrusts.org/en/research-and-analysis/reports/2007/10/01/issue-brief-expanded-discovery-in-criminal-cases

In criminal cases in most states, however, discovery is much narrower. Access to evidence held by the police and the prosecution may often be significantly restricted. Discovery in criminal cases often does not include information on witnesses, police reports, or mitigating and aggravating evidence, all of which could affect the outcome of a trial, as well as lessen or increase the sentence imposed after a conviction.

That's the reality.

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Posted in: Man admits to charges in knife incident at Prince Hisahito's school See in context

The defendant, who was arrested three days later, told investigators he is against Japan's imperial system and intended to stab the prince.

I'm surprised they didn't say Preparation for Homicide given what he confessed to. Is it because they considered him to have voluntarily abandoned his preparation?

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Posted in: Japanese gov't, prosecutors, Nissan call Ghosn's accusations baseless See in context

@Wobot Today 07:10 pm JST

The Justice Minister actually let slip she doesn't really understand how the law works, wow

Frankly, I don't blame her and I think people are just deliberately taking the worst interpretation of the words. If all a defendant needs to do is "proclaim (主張)" his innocence, no one would ever be found guilty. Like it or not, by the time we get to an indictment, there is already a fair pile of evidence against the accused and he would likely have to present some evidence, some reasoning, some argument to establish a credible alternate version where he is innocent or at least less guilty to whatever the prosecutor's version is. Speaking colloquially, "prove".

The Directed Verdict used because the prosecutor's case is extraordinarily weak and the defense doesn't need to put up a case at all is supposed to be a rarity, a sign of the system going wrong.

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Posted in: Ghosn denies wrongdoing; says his arrest in Japan a conspiracy See in context

Tokyo-EngrToday 12:09 am JST

@Kazuaki - your post is at 00:05 am. This press conference started at 22:00 JST. I think maybe you have missed alot of this press conference.

Even on Livestream, you can actually click on the left part of the screen to check out the beginning. Also, some stations were smart enough to "cut him off" after his main speech and make that part into a video rather than just a stream. I'm on one of those right now:

https://youtu.be/5WvRDV67mDU by euronews (in English)

He should really put any whines he has in the back and lead off on what everyone is interested in. New stuff. His defence. Everyone is talking how much of a great talker he is but frankly he hasn't even gotten to his meat and I'm beginning to fall asleep.

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Posted in: Ghosn denies wrongdoing; says his arrest in Japan a conspiracy See in context

@WobotJan. 8  11:54 pm JST

To be fair, he really doesn't know what we are here for. I'm on Minute 20 so far, and all I hear is him whining. The camera was on 12 minutes before he even started...

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Posted in: Prosecutors raid Tokyo office of Ghosn's Japanese lawyer See in context

@rainydayToday 05:40 pm JST

I said "one" of the reasons, and the main point is to point out how stupid Takano is for putting that up.

Merely telling someone they won't get a fair trial wouldn't get you charged with anything in a common law country.

Ordinarily, they won't choose to. But then, Dai Yiu-Ting (law professor) thought he was pretty safe, and they bagged him for "inciting to incite..." Westerners criticize Japanese for not understanding the flaws of their system, but the same can often be said of them. Westerners also have a pretty idealistic view of the common law. Usually the nastiness is covered up by prosecutorial discretion. The limits when they "want" to get you is another story.

First, to be actionable in defamation the statement has to be made in reference to a specific person rather than to an institution like "the judiciary". He is criticizing systemic problems,

Three problems:

First, the precedent has already been set that the 人 in Article 230 includes legal persons (institutions).

Second, an institution is no more than a collective of individuals.

Third, even if it must be an individual(s) as in natural person(s), there is one - the judge(s) that are processing his case. After all, what really matters for Ghosn is not the institution, but whoever is handling his case.

mere statements of opinion like that aren't something you can sue for in defamation either, you have to be making an allegation of fact which is not truthful

Here's the problem. The difference between an "opinion" and an "allegation of fact" is extremely thin:

"Unfortunately, criminal defendants cannot expect fair trial in this country. Judges are not independent."

http://shingetsunewsagency.com/2020/01/05/ghosn-lawyer-takashi-takano-on-japans-legal-injustice/

Did he just allege facts or state opinion? Speaking fairly, he alleged facts, and from a viewpoint of protecting the reputation of the "slammed", there is not much point in making a differentiation. Or do you think immunity can be achieved just by tacking on "I think" to every derogatory sentence?

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Posted in: Prosecutors raid Tokyo office of Ghosn's Japanese lawyer See in context

The whole spat with Takano makes me wonder if one reason for the 99% conviction rate is just that the defense lawyers are incompetent. It is said that due to the training of Japanese legal professionals (emphasis on theory), they are not very good at advocacy. Whatever his talents at that area, Takano is clearly weak in substantive criminal law theory, an area they should be strong at.

First, his showing sympathy increases suspicion that he has aided in Ghosn's escape in some way, and if they found that he assisted even in the slightest way, that would qualify him as an aider (accessory).

As an aside just going on what he admitted to saying, he should be thankful that Japan doesn't use common law because there he could be said to have incited or encouraged Ghosn's escape by telling him he won't get a fair trial. That's already sufficient for a crime if they want to go after him. As for the whole attorney-client privilege, well, Takano published it first, did he? So much for any of that.

Second, the statement also qualifies him as a principal for either insult or defamation of the Japanese judiciary. There is no doubt his statement was derogatory to their honor and reputation and if the first time he said it it was in private and under privilege, the second time he repeated it all over the world. He would not be able to prove either truth or public interest, and even less so to the satisfaction of the court. Justification would require both - with none, he is doomed in a substantive law sense.

Basically, Takano left himself wide open and it is up to the prosecutors to decide whether to take it or not. Sure, the world would scream but the world is fact insensitive on this matter so they might as well go for the deterrence effect. It's obvious most of them don't have the slightest training in criminal law anyway.

So of course he is being searched. A lawyer badge doesn't mean unlimited immunity.

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Posted in: Arrest warrant issued in Japan for Ghosn's wife See in context

Open MindedToday 10:01 pm JST

@Kazuaki

It seems you are confirming she did not swear, right?

Thus no parjure, right?

She's a witness, not a suspect, accused or defendant. You didn't hear about her getting the 23 days, did you?

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Posted in: Arrest warrant issued in Japan for Ghosn's wife See in context

TheLongTermerToday 08:47 pm JST

(偽証)

(Perjury)

第百六十九条 法律により宣誓した証人が虚偽の陳述をしたときは、三月以上十年以下の懲役に処する。

Article 169 When a witness who has sworn in accordance with law gives false testimony, imprisonment with work for not less than 3 months but not more than 10 years shall be imposed.

The key word is bolded - a suspect, accused or defendant is not a witness. Further, procedurally they are not requested to swear.

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Posted in: Arrest warrant issued in Japan for Ghosn's wife See in context

JeffLeeToday 07:49 pm JST

It took them 8 months to realize there was a (supposed) problem with the statements? Japan's prosecutors aren't the sharpest tools in the shed, are they.

Look, it isn't that hard. To even know there was an individual, they must have a witness or other evidence. Now, suppose Ms. Ghosn says "No we never met" or "I don't remember meeting him."

There is a contradiction and thus a reasonable suspicion Ms. Ghosn is lying (especially since Ms. Ghosn is the wife of Mr. Ghosn and the witness would be in a more neutral position).

The only question is, whether to do something about it, or content yourself with making the defendant witness' testimony look as un-creditable as possible.

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Posted in: Arrest warrant issued in Japan for Ghosn's wife See in context

No doubt this is retaliatory. On the other hand, on general principles, the odds favor them having a case if they choose to pursue it. If Ghosn's wife showed up to trial, she probably was briefed by the defense counsel on exactly what to say, which also is to say, she did not tell the whole truth. For example, she probably "forgot" anything that was inconvenient.

Of course, everyone plays this game and contradictory testimony is a regular in courts, so perjury is a substantive crime but reserved for the most blatant abuses. Experienced lawyers know how much de facto slack they have within a system and coach their witnesses accordingly to get the best possible testimony without exposing them to perjury charges.

Usually this works out, but considering what Ghosn's wife was almost certainly involved in, I'm not exactly shocked the screws came on this time.

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Posted in: Japan to strengthen border checks, review bail conditions after Ghosn's escape See in context

@gogogoToday 08:47 am JST

This is categorically incorrect. If you want "charge" to equal to indictment, then the above statements are correct. I WILL note however that America doesn't even use ANY "indictment" for misdemeanors, so if you want to use that mapping you will have to concede that American CONVICTS people without ever "charging" them.

If the police "think" you have something to do with a crime they can hold you for 23 days and try to find out if you really are involved.

If the police think you have something to with a crime but don't catch you flagrante delicto, they apply for an arrest warrant (逮捕状) from a judge. Then they nab him.

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Posted in: Japan to strengthen border checks, review bail conditions after Ghosn's escape See in context

wtfjapanJan. 6 10:29 pm JST

exactly Ghosn case he was accused, doesn't make him guilty until a judge or jury rule him so, Saigawa was accused of accepting illegal payments but can somebody explain to me why hes wasn't put into detention also

First, the internal investigation concludes a lack of intention, and in the lack of better information we must assume that that's what any prosecutorial investigation would find. Second, Saikawa at least demonstrated some active repentance. Third, Ghosn had already been the target of a criminal complaint, which means a clear, declared victim, not the same as Saikawa. Any of these are perfectly legitimate reasons why Ghosn gets fried.

To take a simple analogy, suppose a cop walks by a very rowdy house. He suspects there is some kind of fight going on. But he may well choose to ignore it to respect the autonomy of the family. Now, someone comes running out of the house to tell the police there's a fight going on and requests intervention. Now he's a lot more obliged to take action. There are two more combatants in the house. One of them quickly accepts at least partial responsibility, apologizes, swears they would never do it again. The other is all unrepentant. Why are you surprised that the last guy got hit on the hardest?

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Posted in: Japan to strengthen border checks, review bail conditions after Ghosn's escape See in context

@smithinjapanToday 11:10 pm JST

No. If I catch you, and put you under arrest, then let you walk out the door, it is my fault for not securing you well enough in the first place -- not my fault you broke in, bud.

Well, here's the situation. What YOU (analogical to the Japanese executive) really wanted to do was tie ME up until there is no chance of escape. I made a whiny dance of "I'll be good! I promise" while thinking "Smith you #$#!$#!" It's pretty obvious what I really was thinking, but nevertheless YOU were ordered to pretend I will keep my promise and let me go. I escape.

I'll say the fault here lies first with Me, and this position is backed by criminal law which penalizes the escaper, not the jailer. The secondary responsibility lies with whoever issued that order. Frankly, considering what I happened I will be very understanding if the responsible judge's career was finished over this.

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Posted in: Japan to strengthen border checks, review bail conditions after Ghosn's escape See in context

An addendum:

https://www.expertlaw.com/library/criminal/criminal_charges.html

Although it is not always possible, sometimes a criminal defense lawyer will be able to convince a prosecutor to charge a less serious offense, to send the complaint back to the police for more investigation, or even to refuse to authorize a warrant.

Once a warrant is issued, except perhaps in the context of a plea bargain, it is very difficult to get a prosecutor's office to amend to a lesser charge.

Ergo, in this lawyer's opinion, "Charge" can mean an arrest warrant, which is a much earlier stage than an indictment.

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Posted in: Japan to strengthen border checks, review bail conditions after Ghosn's escape See in context

gogogoToday 06:55 pm JST

Wait wait wait, before we get any further, we need to unify our understanding of the word "charge". In your quoted example, "charge" has been deemed equivalent to indictment (公訴), but it can also mean a citation or even a traffic ticket (read, something the police themselves can throw).

https://en.wikipedia.org/wiki/Criminal_charge

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