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Introducttory Matters Ethiopian Criminal Procedure Teaching Material Prepared by: Aderajew Teklu Kedir Mohammed Sponsored by: Justice and Legal System Research Institute March, 2009 Addis Ababa i Preface Criminal procedure is one of the mandatory courses taken in undergraduate level legal studies. The subject matter is interconnected with human rights. As a result, it raises multifarious problems of constitutional and legal significance. Addressing issues pertaining to criminal procedure of a certain country definitely requires dealing with basic concepts and rules on the area. In addition, exploring the way criminal cases being handled in different jurisdictions allows having a deeper understanding of the law. These in turn necessitate the presence of up-to-date text and materials. The preparation of this work has been undertaken with a view to provide a text and compiled reference material so that students critically reflect on questions pertaining to Ethiopian constitutional and statutory criminal procedure rules. At this stage, it is prudent to acknowledge the support of various persons for the successful accomplishment of the job. We wish to express our gratitude to Addis Ababa University Law School Library and Ethiopian Civil Service College Library staff members for their cooperation in the collection and photocopying of the relevant materials. We would like to thank W/o Fikirte Shiferaw and her brother Yeabsira Shiferaw for their writing and editing the document. Finally, we want to appreciate the facilitation work of the Justice and Legal System Research Institute Curriculum Implementation Committee members. Aderajew Teklu Kedir Mohammed March, 2009 Addis Ababa ii Table of Contents Page Preface i Table of Contents ii Abbreviations and Acronyms vi Introductory Matters 1 1.1. Introduction 1 1.2. Methodology 3 I. General Overview 6 1.1. Definition, Nature, Purpose and Development of Criminal Procedure 6 1.2. Sources of Criminal Procedure Rules 15 1.3. Models of Criminal Justice Systems: the ‗Due Process‘ and the ‗Crime Control‘ Models 34 1.4. Systems of Criminal Procedure: the Adversarial/ Accusatorial, the Inquisitorial, and the Mixed Systems 37 1.5. Structure, Purposes, and Fundamental Principles of Modern Criminal Procedure 49 1.6. History of Ethiopian Criminal Procedure 59 II. Setting Justice in Motion: Intake Procedures and Investigative Activities 78 2.1. Complaint, Accusation, and Flagrant Offences 78 2.2. Summons and Arrest 91 2.3. Police Investigation 116 2.4. Confession 120 2.5. Search and Seizure 139 iii III. Post Arrest Procedures 147 3.1. Remand 147 3.2. Release on Bail 150 3.3. Habeas Corpus 163 IV. Prosecution and Preliminary Inquiry 167 4.1. Prosecution 167 4.2. The Preliminary Inquiry 186 V. The Charge 199 5.1. Framing the Charge: Form and Content 199 5.2. Amendment 216 VI. The Federal System and Jurisdiction of Courts 218 6.1. An Overview of the Court System in the Ethiopian Federal Set up 218 6.2. Criminal Jurisdiction of Courts 219 VII. The Trial 248 7.1. Fair Trial Rights and Trial Proceedings 248 7.2. Preliminary Objections and their Consequences 259 7.3. Plea of accused 262 7.4. Opening of Cases and Presentation of Evidences. 264 7.5. Post Evidence Procedure 272 VIII. Special Procedures Leading to Judgment 276 8.1. Private Prosecutions 276 8.2. Default Proceedings 276 8.3. Summary Proceedings: Petty Offences and Contempt 279 8.4. Juvenile Procedures 279 8.5. Corruption Crimes 280 iv IX. Post Judgment Proceedings 283 9.1. Review of Judgment by the Court of Rendition 283 9.2. Right of Appeal and Powers of the Appellate Court 285 9.3. Review in Cassation 291 9.4. Execution 293 9.5. Pardon and amnesty 293 References 295 v Abbreviations and Acronyms FDRE Constitution The Constitution of the Federal Democratic Republic of Ethiopia CC The Criminal Code of the Federal Democratic Republic of Ethiopia 2004 CPP The Criminal Procedure Proclamation 961 CRC The Convention on the Rights of the Child ICCPR International Covenant on Civil and Political Rights PC The Penal Code Proclamation of 1957 vi INTRODUCTTORY MATTERS 1. Introduction A crime is a socio-economic and political problem in any society. That is why actions thought to be against the interest of a community have been criminalized and punished since time immemorial. Be that as it may, care has to be taken in order to avoid or at least reduce the danger on human rights in the running of the criminal justice system. To what extent it is allowed to affect the rights of persons so as to maintain law and order is a controversial issue. This means- end and the related procedural and substantive justice debate underlying the study of criminal procedure. To address systematically the salient aspects of the law of criminal procedure, the whole document is divided in to nine major chapters. The division is done mainly on the basis of the sequential orders of the whole process of the criminal justice. The beginning chapter grapples with the background of the course. As can be observed from its content, it lays the foundation for the subsequent parts. It tries to highlight the concept, essence and development of criminal procedure, including history of Ethiopian criminal procedure. The legal source of the law both constitutional and statutory is also covered with particular emphasis on applying it to a federal system as our country follows that line. In addition, major orientations of criminal justice systems are included. These are the ‗Due Process‘ and ‗Crime Control‘ models. The adjudication process of the adversarial/ accusatorial, inquisitorial, and mixed systems is not also disregarded. Chapter two directly indulges in to the main part of the course. It explores the early phases of the criminal justice system. Conditions leading to the functioning of the criminal justice system are treated. Besides, subsequent steps in the process, such as, summons, arrest, police investigation, confession, identification procedures, search and seizure, and remedies available for any kind of illegality committed on the process are discussed. 1 A person arrested has to be brought, as soon as possible, to the nearest court. Ascertaining the legality of the arrest, the court may allow bail or further investigation being in the hands of the police. In case the state authorities fail to bring the arrested person to court, one may use habeas corpus for that purpose. Thus, remand, bail, and habeas corpus are the subject matters of the third chapter. Prosecution is one of the main activities done in the criminal justice process. It includes decision to prosecute or discontinue prosecution, ordering further investigation, preliminary hearing, etc. The fourth chapter grapples with these issues. The fifth chapter is an extension of the fourth. It is restricted to the charge. It concerns how to frame a charge after the public prosecutor being convinced to do so, and its amendment. The next chapter explores jurisdiction of courts, change of venue, and withdrawal of judges. It includes the three types of court jurisdiction, namely, judicial, material, and local jurisdiction. Chapter seven is devoted to the trial. The trial can not be well conducted without the necessary preparations. Accordingly, it covers both the pre-trial procedures and the trial. The gravity and complexity of crimes are not the same. For instance, murder rape, treason, robbery, corruption, etc are grave and complex. On the contrary, crimes, such as, insult, minor bodily harm, and violation of traffic regulations are less complex and grave. Besides, the perpetrators of crimes could be adults or minors. Juvenile delinquents require differential treatment due to the level of their psychological, social, mental and physical development. It is not prudent to handle every criminal case in a similar fashion. Accordingly, modern criminal justice system is in favor of differential treatment of criminal cases depending upon their complexity, gravity, and the nature of the perpetrators of a crime. Hence, chapter eight is about special criminal procedures like private prosecutions, default procedures, contraventions, court contempt, juvenile delinquency, and anti-corruption cases. 2 The final chapter examines procedures coming after judgment. The procedures that follow from the decision of a criminal case on a first instance basis that are discussed are review by the court of rendition, appeal, cassation, execution, pardon and amnesty. 2. Methodology We find it imperative to explicitly state the approach of preparation of the work. This could enable readers to easily grasp the content. The approach emanates from the purpose of the undertaking. It is primarily intended to develop an up to date course material for the subject. Accordingly, the basic task is compilation. But, inevitably, intervention to create coherence is needed. This is achieved through introduction, summary notes, and discussion questions. Besides, the course developers have been forced in some cases to forward their own reflections together with the available literature sources in cases literature on a certain topic is absent or found to be insufficient to be incorporated as it is. Therefore, even though the document is primarily a compilation, there is an input on the part of the course developers. With regard to the compiled materials, they are taken in the form of extracts directly from different authoritative sources with no paraphrasing. Unnecessary parts of the text are left out so as to create linkage between different parts and make the document readable. The parts left are indicated using the commonly used three dots. The design of the text and materials incorporates criminal procedure values, principles, rules, writings on various jurisdictions and decided court cases. Their mode of presentation follows this same logical pattern. This is purposefully done so that students have a holistic picture of the subject matters covered. Undoubtedly, the general approach of the document empowers students to make theoretical and practical analysis of criminal procedure issues.
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