JUSTICE

Warrant of arrest

Warrant of arrest

Art 52 Principle.

(1) Where a warrant is required by law to be issued by a court before a person is arrested the provisions which follow shall apply.

(2) A warrant of arrest shall be in the form prescribed in the Third Schedule to this Code

(3) A warrant of arrest shall remain in force until executed or cancelled by the court which issued it notwithstanding the death, retirement or replacement of the judge having issued the warrant.

Art. 53 issue of warrant.

(1) A warrant of arrest may be issued on the application of any investigating police officer by any court and shall be addressed to the chief of the police in the Taklay Guezat in which it is issued.

(2) A warrant may be issued at any time and on any day of the year

(3) A warrant of arrest may be executed in any part of the Empire by any member of the police.

Art. 54. When warrant of arrest to be issued.

A warrant of arrest shall only be issued where the attendance of a person before the court is absolutely necessary and cannot otherwise be obtained.

Art. 55 Application for warrant in urgent cases.

(1) In cases of urgency the investigating police officer may apply for a warrant by telephone or telegraph.

(2) In such cases the application to the court in question shall be confirmed in writing within 24 hours.

procedure in Cases of Petty Offences

procedure in Cases of Petty Offences

Art.167-Summoning of accused.

(1) Where a petty offence has been committed, the public or private prosecutor shall apply to the court having jurisdiction to summon the accused to appear.

(2) The application and the summons shall contain the name of the accused, the circumstances of the petty offence committed and the law and articles of the law to be applied.

Art.168-Accused may plead guilty in writing to petty offence.

The accused may return the summons to the court endorsing thereon that he pleads guilty to such offence. Such endorsement shall be dated and signed by the accused. In such a case and without prejudice to the provisions of Art.189 (3), he shall be dispensed with the necessity of appearing in court in answer to the summons.

Art.169- Proceedings and judgment.

(1) On receipt of the summons so endured, the court shall record the plea of guilty and, having ascertained the facts of the case from the prosecutor, shall sentence the accused and send him a copy of the judgment.

(2) Where the court proposed to impose a fine only, it shall do so forth with

(3) Where the court intends to impose a sentence of arrest, compulsory labor, a warning or reproof, it shall summon the accused to appear and shall give the accused an opportunity to defend himself before sentence is passed.

Art.170-procedure where accused appears before the court charge with petty offence.

(1) Where the accused does not endorse on the summons that he pleads guilty, he shall appear on the day and at the time fixed for the hearing.

(2) The prosecutor and the accused shall take such steps as are necessary to secure the attendance of their witnesses, if any.

(3) The procedure shall be oral. The court shall only record the salient part of the evidence of each witness. It shall give judgment orally recording briefly the reasons for its judgment and mentioning the provisions of the law under which judgment is given.

(4) Where the accused fails without good cause to appear in private proceedings the court shall give judgment forthwith.

Procedure incases Concerning Young Persons

Procedure incases Concerning Young Persons

Art.171- Principle.

Criminal case concerning young persons shall be tried in accordance with the provisions of the Chapter.

Art.172-institution of proceedings.

(1) In any case where a young person is involved. He shall be taken immediately before the nearest Woreda Court by the police, the public prosecutor, the parent or guardian or the complainant.

(2) The court shall ask the person bringing the young person to state the particulars and the witnesses, if any, of the alleged offence or to make a formal complaint, where appropriate, and such statement or complaint shall be recorded . The court may give the police instructions as to the manner in which investigations should be made.

(3) Where the accusation relates to an office punished with rigorous imprisonment exceeding ten years or with death (Art.173 penal Code) the court shall direct the public prosecutor to frame a charge.

(4) Where the case requires to be adjourned or to be transferred to a superior court for trial, the young person shall be handed over to the care of his parents, guardian or relative and in default of any such person to a reliable person who shall be responsible for ensuring his attendance at the trial The witnesses shall be bound over to appear at the trial.

Art.173-Summunig of young person’s guardian.

Where the young person is brought before the court and his parent, guardian or other person in loco parentis is not present, the court shall immediately inquire whether such person exists and shall summon such person to appear without delay.

Art.174-Young person may be assisted by counsel.

The court shall appoint an advocate to assist the young person where;

(a) No parent, guardian or other person in loco parentis appears to represent the young person, or

(b) The young person is young is charged with an offence punishable; with rigorous imprisonment exceeding ten years or with death.

Art.175-Removal of young person from chambers.

Where any evidence or comments are to be given or made which it is undesirable that the young person should hear, he shall be removed from the chambers while such evidence or comments are being given or made.

Art.176-Hearing

(1) Where the young person is brought before the court all the proceedings shall be held in chambers. Nobody shall be present at any hearing except witnesses, experts, the parent or guardian or representatives of welfare organizations. The public prosecutor shall be present at any hearing in the High Court.

(2) All proceedings shall be conducted in an informal manner.

(3) The accusation or complain under Art.172 (2) or the charge under Art.172(3) shall be read out to the young person and he shall be asked what he has to say in answer to such accusation or charge.

(4) If it is clear to the court from what the accused says that he fully understands and does not admits the accusation or charge, the court shall record what the young person has said and may convict him immediately.

(5) If it is clear to the court from what the accused says that he fully understands and does not admit the accusation or charge, the court shall inquire as to what witnesses should be called to support such accusation or charge. The young person, his representative or advocate may cause any witnesses to be summoned.

(6) All witnesses shall be examined by the court and may thereupon be cross examined by the defence. All depositions shall be recorded.

(7) When the evidence is concluded, the defence may sum up and there—after the court shall give judgment.

Art.177-Judgment.

(1) The judgment shall specify the provisions of the law on which it is based. Where the young person is found not guilty, he shall be acquitted and set free forthwith. Where he is found guilty, the court shall impose the appropriate measure or penalty under Art.162. et seq. Penal Code.

(2) The court may call before it any person or representative of any institution with a view to obtaining information concerning the character and antecedents of the young person so as to arrive at a decision which is in the best interest of the young person.

(3) After these persons have been heard, the defence may reply and call his witnesses as to character, who shall be interrogated by the court and thereupon the defence shall address the court as to sentence.

(4) Judgment shall be given as in ordinary cases. The court shall explain its decision to the young person and warm him against further misconduct.

Asdrt.178-Order which may be made against parents and guardians.

Where it thinks fit the court may warn, admonish or blame the parents or other person legally responsible for the young person where it appears that they have failed to carry their duties.

Art.179-Cost of upkeep of young person in certain circumstances.

(1) The parents or other person legally responsible for the care of a young person may be ordered to bear all or part of the cost of his upkeep and training where owing to their failure to exercise proper care and guardian ship the court has ordered the young person to be sent to the care of another person or to a corrective or curative institution.

(2) The scope and duration of such obligation shall be specified in the judgment.

Art.180-Variation or modification of order made in respect of young person.

Any court which has sentenced a young person to a measure may at any time of its own motion or on the application of the young person, his legal representative or the person or institution to which he was entrusted, vary or modify such order if the interest of the young person so requires.

Appeals and Applications to Set Aside Judgments Given in Default

Appeals and Applications to Set Aside Judgments Given in Default

Appeal

Art.181-Principle

(1) An appeal shall lie in accordance with the provisions of his Book from a judgment of a criminal court whether it be a judgment convicting, discharging or acquitting an accused person.

(2) A second appeal shall lie in accordance with the provisions of Art. 182.

Art.182- Courts having appellate jurisdiction.

(1) An appeal shall lie from the decision of:

(a) A Woreda Court to the Awradja Court in whose area of jurisdiction such Woreda Court lies.

(b) An Awradja Court to the High Court:

(c) The High Court to the Supreme Imperial Court.

(2)A second appeal shall lie from a decision of:

(a) the Awradja Court in its appellate jurisdiction to the High Court:

(b) the High Court in its appellate jurisdiction to the supreme Imperial Court.

Art.183-Applicaton to His Imperial Majesty’s Chilot.

(1) Nothing in Art.182 shall prevent an appellant who has exhausted his rights of appeal under Art.182 from applying to His Imperial Majest’s Chilot for a review of the case.

(2) The application to His Imperial Majesty Chilot shall be accompanied by:

(a) A copy of the judgment or judgment with which the applicant is dissatisfied; and

(b) A reasoned memorandum setting forth clearly and concisely the reasons on which the applicant bases his request for a review.

Art.184-No interlocutor appeals.

No interlocutory appeal shall lie from a decision of the court:

(a) Granting or refusing an adjournment under Art.94:0r

(b) Regarding an objection under Art.131;or

(c) Regarding the admissibility or non-admissibility of evidence under Art.146.but any such decision may form the subject of a ground of appeal where an appeal is lodged against conviction, discharge or acquittal.

Art.185-Appeal against conviction and sentence.

(1) A convicted person may appeal against his conviction sentence; Provided that no appeal may be lodged by a convicted person who has pleaded guilty and has been convicted on such plea except as to the extent or the legality of the sentence.

(2) The public prosecutor may appeal against a judgment of acquittal, discharge or on the ground of inadequacy of sentence.

(3) Where a prosecution is conducted by a private prosecutor the private prosecutor may appeal in the same manner as is provided in sub-article (2).

(4) An appeal by a young person or by an incapable person shall be through his legal representative.

Art.186-Appeal where injured party claims compensation

(1) Where the court refuses to grant compensation under Art.100 penal Code the injured party may appeal against such decision.

(2) Where the court grants compensation the accused may appeal against such decision.

(3) An appeal shall lie against the amount of compensation awarded in accordance with the provisions of Art.2153 Civil Code.

(4) An appeal under this Article shall be heard by the criminal court of appeal where there is an appeal against conviction or sentence, but shall be heard by the civil court of appeal where there is no appeal against conviction or sentence or such appeal is withdrawn.

Art.187.Notice of appeal and memorandum of appeal.

(1) Notice of appeal against a judgment shall be given by the appellant or his advocate within fifteen days of the delivery of the judgment appealed against. On receipt of such notice of appeal, the registrar shall cause the judgment appealed against to be copied and handed to the appellant or his advocate and where the appellant is in custody the copy shall be sent to the superintendent of the prison in which he is confined for service on the appellant. Such copy shall be dated when completed and the date on which it is handed to the appellant or his advocate or is sent to the superintendent of the prison shall be certified by the registrar .

(2) The memorandum of appeal under Art, 189 shall be filed within thirty days of the receipt of the copy of the decision appealed against. The notice and memorandum of appeal shall be field in the registry of the court which gave the judgment appealed against.

(3) Where the appellant is in custody the superintendent of the prison in which he is confined shall forward the memorandum of appeal without delay to the curt against whose decision an appeal is made.

(4) A copy of the memorandum of appeal shall be served on the respondent to the appeal.

Art.188-Stay of execution.

(1) Where a convicted person has given notice of appeal no sentence of flogging shall be carried out until the appeal has been heard or abandoned by the appellant.

(2) Where an accused person is released on bail pending the hearing of his appeal the sentence of imprisonment shall not commence until the court of appeal delivers its judgment.

(3) Any measures which have been ordered by the court against whose judgment an appeal has been filed shall be carried out notwithstanding an appeal.

(4) There shall be no stay of execution in respect of the payment of compensation or costs.

(5) An application for stay of execution may be make to the court of appeal at any time before the appeal is heard or at the hearing of the appeal.

Art.189-Content of memorandum of appeal.

(1) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the judgment appealed against without and arguments and such ground shall be numbered consecutively. The memorandum shall be accompanied by a copy of the judgment appealed against. The memorandum of appeal shall state the nature of the relief that is sought.

(2) The memorandum of appeal shall be signed by the appellant and his advocate, if any.

Art.190-Record and exhibits to be forwarded to court of appeal.

(1) On receipt of the memorandum of appeal the court against whose judgment an appeal has been filed shall prepare without delay within fifteen days a copy of the record and forward it together with the appeal record (if any ), the notice and the memorandum of appeal and all exhibits to the court of appeal.

(2) The court of appeal may dispense with the making of a copy of the record where the making of such copy may delay unduly the hearing of the appeal and the Court may order the original file to be produced.

Art.191- Application for leave to appeal out of time.

(1) Where notice of appeal or a memorandum on appeal is filed out of time, the court against whose judgment the appeal is filed shall refuse to accept such notice or memorandum and shall require the person submitting such notice or memorandum to apply in writing to the court of appeal for leave to appeal out of time.

(2) The application shall state clearly the reasons why the appeal should be heard out of time and the reasons which occasioned the delay.

(3) The court of appeal shall not give leave to appeal out of time unless it is satisfied that the delay was occasioned by the default of the applicant.

(4) Where leave to appeal out of time is given the court of appeal shall fix the date by which the memorandum of appeal is to be filed.

Art.192-Hearing

The president of the court of appeal shall fix a day on which the appeal will be heard and the parties to the appeal shall be notified. The appellant shall open the appeal, the respondent shall reply and the appellant shall be entitled to reply.

Art.193-Absence of a party to the appeal.

(1) Where the appellant or his advocate is not present on the day fixed for the appeal and he has been notified of the hearing date, the appeal shall be struck out:

Provided that the appeal may be restored to the list where the appellant or his advocate can show that he was not present owing to circumstances beyond his control.

(2) Where the respondent or his advocate is not present the appeal shall proceed in his absence.

Art:194-Additional evidence.

(1) In dealing with an appeal the court of appeal, if it thinks additional evidence is necessary , shall record its reasons and may take such evidence itself.

(2) Evidence taken in pursuance of sub-art (1) shall be taken as if it were evidence taken at the trial in the court of first instance.

Art.195- Power of court of appeal.

(1) At the hearing of an appeal the court of appeal shall dismiss the appeal where there is no sufficient ground for interference.

(2) Where it consider that there is sufficient ground for interference, the court of appeal may:

(a) On an appeal from an order of acquittal or discharge reverse such order and direct that the accused be retried by a court of competent jurisdiction or find him guilty and sentence him according to law; or

(b) On an appeal from conviction and sentence:

(i) reverse the finding and sentence and acquit the accused: or

(ii) with or without altering the finding, maintain, increase or reduce the sentence:

(C) on an appeal from conviction only reverse the finding and sentence and acquit the accused;

(d) on an appeal from sentence the conviction but alters the sentence or vice versa a second appeal shall lie only in respect of the conviction or sentence which has been altered.

Art.196-where one appeal in case concerning several convicted persons.

(1) Where a court of appeal hears an appeal which concerns several convicted persons but only one of them appeals, it may direct that its judgment be applied to those other accused as though they had appealed where:

(a) The judgment is to the benefit of the appellant, and

(b) Had the accused appealed they would have benefitted similarly,

(2) No order made to the prejudice of an appellant may be applied to a person who has not appealed.

Application to Set Aside Judgment given in Default

Application to Set Aside Judgment given in Default

Art.197-Court having jurisdiction.

An application to set aside a judgment given in default may be made by the person sentenced in his absence to the court which passed the judgment.

Art.198- Time and form of application.

An application under this Title shall be made within thirty days from the date on which the applicant became aware of the judgment given in his absence and shall contain the reasons on which he bases his application.

Art.199- Grounds for granting application.

No application under this Title shall be granted unless the applicant can show:

(a) That he has no received a summons to appear: or

(b) That he was prevented by force majeure from appearing in person or by advocate.

Art.200- Action upon filing of application.

(1) on the filing of the application, a copy thereof shall be sent to the public prosecutor and the applicant and the public prosecutor shall be informed of the hearing date.

(2) Where the applicant, having been duly summoned, fails to appear on the hearing date, the application shall be dismissed.

Art-201-Hearing

(1) The applicant or his advocate shall speak in support of the application and the public prosecutor shall reply. The applicant shall have the right to reply.

(2) The court shall then give its decision on the application.

Execution of Sentences General Provisions

Execution of Sentences General Provisions

Art.203. – Principle.

(1) Any court having passed a sentence in a criminal case shall issue the necessary warrants or orders requiring the appropriate authorities to carry out or supervise the carrying out of the sentence in accordance with the provisions of this Book.

(2) Nothing in this Article shall affect the provisions of Art. 188.

Art.204. – Warrant in respect of person sentenced to death.

(1) Where any person is sentenced to death, the presiding judge shall by warrant under his hand in the form prescribed in the Third Schedule to this Code order such person to be detained until the pleasure of His Imperial Majesty shall be made known.

(2) Where the sentence is confirmed, it shall be carried out in accordance with the conditions laid down in the order of confirmation.

(3) Where the sentence is commuted, the order of commutation shall be sufficient authority for carrying into effect the terms of such order.

Art.205. – Warrant in respect of person sentenced to loss of liberty.

(1) Where any person is sentenced to arrest, imprisonment of internment, the presiding judge shall by warrant under his hand in the form prescribed in the Third Schedule to this Code order the sentence to be carried out.

(2) Such warrant shall be sufficient authority for the officer in charge of the prison and all other persons to carry out the sentence described in the warrant.

Art.206. – Execution may be postponed in certain cases.

Where a person who has been sentenced to arrest or simple imprisonment not exceeding one year is:

(a) a pregnant woman; or

(b) the sole support of his family,

and such person is not likely to be a danger to public security, the court may postpone the execution of the sentence for a period not exceeding six months on production of guarantors for his good behaviour.

Art.207. – Warrant in respect of person sentenced to flogging.

Where any person is sentenced to be flogged for an offence under Art. 635 (3) or 637 (1) Penal Code, the presiding judge shall by warrant under his hand in the sixteenth form prescribed by the Third Schedule to this Code order that the sentence be carried out in accordance with Art. 120A Penal Code by such person and at such place as shall be specified in the warrant.

Art.208. – Warrant in respect of irresponsible persons.

Where any person is found to be not fully responsible for his acts and the court decides that he be confined or treated in accordance with the provisions of Art. 134 or 135 Penal Code, the presiding judge shall by warrant under his hand in the fifteenth form prescribed in the Third Schedule to this code order that the accused be remanded to a suitable institution for confinement or treatment.

Art.209. – Recovery of fines.

(1) Fines shall be recovered on the order of the court by the execution officer in accordance with the provisions of Art. 91,171, (1), 703 and 710 Penal Code.

(2) Where a fine or any part thereof has not been recovered, the execution officer shall refer the matter to the court and thereupon the court shall make the appropriate orders for execution or for the fine to be converted into labour, arrest or simple imprisonment in accordance with the provisions of Art. 92, 94, 96, 171 (2) and 709 Penal Code.

(3) Where a person has been sentenced in his absence to pay a fine, the provisions of sub-art. (1) shall not apply and the court shall forthwith order that execution be levied on the convicted person’s property.

Art.210. – Payment of costs and compensation.

Where a judgment given by a criminal court contains provisions for the payment of legal costs or compensation, such part of the judgment as contains such provisions shall be executed in the same manner as a civil judgment.

Art.211. – Confiscation of property.

(1) Where an order for confiscation of property has been made under Art. 272 Penal Code, the court shall make an order requiring the execution officer to seize such property as is seizable under the provisions of Art. 97 Penal Code and shall specify in such order the property to be seized.

(2) On seizing such property, the execution officer shall hold it until he receives an order from the competent authority requiring him to hand over such property to a person or persons named in such order and on so handing such property, the execution officer shall be given a detailed receipt by such person or persons.

(3) The family of the convicted person may apply to the court for the release of any property wrongly confiscated.

Art.212. – Sequestration of property.

(1) Where a person is sentenced in his absence to have his property sequestrated for an offence as defined in Art. 272 Penal Code, the court shall make an order:

(a) requiring the execution officer to attach such property as may be attached under Art. 98 Penal Code and shall specify in such order the property to be attached; and

(b) appointing a trustee to manage the property and on such appointment the execution officer shall hand over the property to such trustee against a detailed receipt.

(2) The execution officer shall be responsible for ensuring that none of the property mentioned in Art. 97 (3) Penal Code be attached. The family of the convicted person may apply to the trustee for the release of any property wrongly attached.

(3) An order or attachment made under sub-art. (1) shall remain in force until an application for its removal is made to the court by the competent authority and thereupon the court shall order the attachment to be removed and the trustee discharged on submitting proper accounts.

Art.213. – Orders in respect of young persons.

(1) Where an order is made in respect of a young person under Art. 162, 165, 166, 173 or 703 Penal Code, the presiding judge shall sign and send an order to the responsible official, headmaster, director or officer in charge, as the case may be, and such order shall be sufficient authority to deal with young person on the conditions laid down in the order.

(2) Where an order is made in respect of a young person under Art. 163 Penal Code, the presiding judge shall sign and send an order to one of the persons mentioned in Art. 163 Penal Code and such order shall be sufficient authority to deal with the young person on the conditions laid down in the order.

(3) Where a young person is sentenced to caning under Art. 72 Penal Code, the presiding judge shall cause the young person to be medically examined as to his fitness to undergo corporal punishment and, where he has been found fit, he shall cause the caning to be carried out in a private place by a family elder or such other suitable person as the presiding judge shall appoint, in the presence of himself, the person who has examined the young person and the young person’s parents, relatives or guardian, if any.

Art.214. – Compulsory labour, secondary penalties and measures.

Where an order is made under Art. 102, 103, 122, 144, 146, 147, 149-154-158-160, 178, 179, 715, 716, or 718-720 Penal Code, the court shall cause a copy of the operative part of the judgment to be served on the appropriate authorities and require them to carry the order into effect.

Art.215. – Recording of orders for execution.

The court shall record any order it may have made with a view to the sentence being executed. A note shall be made of the day on which such order was executed and, where appropriate, of the reasons why such order could not be executed.

Variation of Orders Contained in Sentences

Variation of Orders Contained in Sentences

Art.216. – Principle.

(1) Where any order as defined in sub-art. (2) requires to be made, such order shall be made by the court having passed the sentence in relation to which such order is to be made.

(2) The provisions of sub-art. (1) shall apply in cases of:

(a) enforcement of internment (Art. 132 Penal Code); and

(b) revision of orders made in respect of offenders not fully responsible (Art. 136 and 137 Penal Code); and

(c) extension of detention (Art. 140 (2) Penal Code); and

(d) revocation of probation or variation of rules of conduct (Art. 198, 202 (3) and 204 Penal Code); and

(e) conditional release (Art. 131, 207, 209 – 112 Penal Code); and

(f) orders under Art. 124(2) and 156 Penal Code.

(3) Orders made in respect of young persons may be varied in accordance with the provisions of Art. 180 of this Code.

Art.217. – Procedure and decision.

(1) The court shall not make an order under this Chapter unless an application to this effect is made by the convicted person or his legal representative, the public prosecutor or any person or authority charged with executing or supervising the execution of the sentence.

(2) Prior to making its decision, the court shall summon the person in respect of whom the order is to be made and such other person as is likely to give information to assist the court. The court may, where appropriate, order such inquiries to be made as appear necessary.

(3) The court shall make its decision after having heard all the persons summoned and obtained the required information. Where the person in respect of whom the decision is to be made fails to appear, the court shall make its decision in his absence.

(4) Any statement made and the decision of the court shall be recorded.

(5) No appeal shall lie from a decision under this Article and such decision shall be carried out in accordance with the provisions of Chapter I of this Book.

ReinstatementArt.218. – Application for

Reinstatement
Art.218. – Application for reinstatement.

(1) Where a convicted person or his legal representative is of opinion that the requirements of Art. 243 and 244 Penal Code are satisfied, he may apply for reinstatement to the court having passed the sentence the cancellation of which is sought.

(2) The application shall be in writing and shall give reasons. It shall be accompanied by such documents as are necessary to enable the court to ascertain whether the conditions laid down in Art. 243 and 244 Penal Code are fulfilled.

Art.219. – Procedure and decision.

(1) The application shall be decided on by the court sitting in chambers. Prior to making its decision, the court may order such inquiries to be made or further documents to be produced as it thinks fit.

(2) Where the application is allowed, the provisions of Art. 245 Penal Code shall apply and the court shall order the entry of the sentence which it has cancelled to be deleted from the reinstated person’s police record.

(3) Where the application is dismissed, the provisions or Art. 246 Penal Code shall apply.

(4) Any decision under this Article shall be in writing and shall give reasons. The decision shall be read out in open court, and shall be published in a newspaper.

(5) No appeal shall lie from any decision of any court under this Article.

Application to Set Aside Judgment given in Default

Application to Set Aside Judgment given in Default

Art.197-Court having jurisdiction.

An application to set aside a judgment given in default may be made by the person sentenced in his absence to the court which passed the judgment.

Art.198- Time and form of application.

An application under this Title shall be made within thirty days from the date on which the applicant became aware of the judgment given in his absence and shall contain the reasons on which he bases his application.

Art.199- Grounds for granting application.

No application under this Title shall be granted unless the applicant can show:

(a) That he has no received a summons to appear: or

(b) That he was prevented by force majeure from appearing in person or by advocate.

Art.200- Action upon filing of application.

(1) on the filing of the application, a copy thereof shall be sent to the public prosecutor and the applicant and the public prosecutor shall be informed of the hearing date.

(2) Where the applicant, having been duly summoned, fails to appear on the hearing date, the application shall be dismissed.

Art-201-Hearing

(1) The applicant or his advocate shall speak in support of the application and the public prosecutor shall reply. The applicant shall have the right to reply.

(2) The court shall then give its decision on the application.

Procedure incases Concerning Young Persons

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December 23, 2020 surafelmoha Leave a comment

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ADMINISTRATION LAW, CONSTITUTION LAW, INTERNATIONAL LAW, News Post

POLICE INVESTIGATION

Police Investigation

Art. 22 Principle.

(1) Whenever the police know or suspect that an offence has been committed, they shall proceed to investigate in accordance with the provisions of this Chapter.
(2) Investigation into offences committed by young persons shall be carried out in accordance with instructions given by the court under Art. 172 (2) .

Art. 23. __ Duty of police to investigate.

Investigating police officers shall carry out their duties under this Chapter not withstanding that they are of opinion that the accusation, complaint or information they may have received is open to doubt.

Art. 24. __ recording of statement.

After having recorded an accusation or complaint in the manner laid down in Art. 14, the investigating police officer shall elicit from the person making the accusation or complaint all relevant facts and dates, the name or description of the offender, the names and addresses of principal witnesses and all other evidence which may be available and shall record them.

Art.25.___ Summoning of accused or suspected person.

Where the investigating police officer has reason to believe that a person has committed an offence, he may be written summons require such person to appear before him.

Art 26. __ Arrest

(1) Where the accused or the suspect has not been arrested and the offence is such as to justify arrest or where the person summoned under Art. 25 fails to appear, the investigating police officer shall take such steps as are necessary to effect his arrest.
(2) Where the arrest cannot be made without warrant, the investigating police officer shall apply to the court for a warrant of arrest in accordance with the provisions of Art. 53.

Art. 27.__ Interrogation.

(1) Any person summoned under Art. 25 or arrested under Art. 26,50 or 51 shall, after his identity and address have been established. Be asked to answer the accusation or complaint made against him.
(2) He shall not be compelled to answer and shall be informed that he has the right not to answer and that any statement he may make may be used in evidence.
(3) Any statement which may be made shall be recorded.
(4) Where the arrested person is unable properly to understand the language in which his answers are to be recorded, he shall be supplied with a competent interpreter, who shall certify the correctness of all questions and answers.

Art. 28. __ Release on bond.

(1) Where the offence committed or complained of is not punishable with rigorous imprisonment as a sole or alternative punishment; or where it is doubtful that an offence has been committed or that the summoned or arrested person has committed the offence complained of, the investigating police officer may in his discretion release such person on his executing a bond with or without sureties that he will appear at such place, on such day and at such time as may be fixed by the police.
(2) Where the accused is not released on bond under this article, he may apply to the court to be released on bail in accordance with the provisions of Art. 64.

Art. 29__ Procedure after arrest

(1) Where the accused has been arrested by the police or a private person and handed over to the police (Art. 58) the police shall bring him before the nearest court within forty eight hours of his arrest or so soon thereafter as local circumstances and communications permit. The time taken in the journey to the court shall not be included.
(2) The court before which the accused is brought may make any order it thinks fit in accordance with the provisions of Art. 59.

Art. 30__ Examination of witnesses by the police.

(1) The investigating police officer may, where necessary, summon and examine any person likely to give information on any matter relating to the offence or the offender.
(2) Any person so examined shall be bound to answer truthfully all questions put to him. He may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge.
(3) Any statement which may be made shall be recorded.

Art. 31.___ No inducement to be offered.

(1) No police officer or person in authority shall offer or use or make or cause to be offered, made or used any inducement, threat, promise or any other improper method to any person examined by the police.
(2) No police officer or other person shall prevent or discourage by whatever means any person from making or from requiring to be recorded in the course of the police investigation any statement relating to such investigation which he may be disposed to make of his own free will.

Art. 32. __ Searches and seizures.

Any investigation police officer or member of the police may make searches or seizures in accordance with the provisions which follow;
(1) No arrested person shall be searched except where it is reasonably suspected that he has about his person any articles which may be material as evidence in respect of the offence with which he is accused or in suspected to have committed. A search shall be made by a person of the same sex as the arrested person.
(2) No premises may be searched unless the police officer or member of the police is in possession of a search warrant in the form prescribed in the third schedule to this code except where;
(a) An offender is followed in hot pursuit and enters premises or disposes of articles the subject matter of an offence in premises;
(b) Information is given to an investigating police officer or member of the police that there is reasonable cause for suspecting that articles which may be material as evidence in respect of an offence in respect of which an accusation or complaint had been made under art. Of this Code and the offence is punishable with more than three years imprisonment, are concealed or lodged in any place and he has good grounds for believing that by reason of the delay in obtaining a search warrant such articles are likely to be removed.

Art. 33.__ Issue of search warrant.

(1) A search warrant may be issued by any court. No search warrant shall be issued unless the court is satisfied that the purposes of justice or of any inquiry, trial or other proceedings under this code will be served by the issue of such warrant.
(2) Every search warrant issued shall specify the property to be searched for and seized and no investigating police officer or member of the police may seize any property other than that specified in such warrant.
(3) On seizing any property such investigating police officer or member of the police shall make a list of the property seized and where possible shall have the list checked and signed by an independent person. Any property seized which is required for the trial shall be preserved in a safe place until handed over to the court as an exhibit. Any property not so required may be returned to the person from whom it was taken and a receipt shall be taken
(4) In effecting a search the investigating police officer or member of the police may use such force as is necessary and may where access to premises is denied use reasonable force to affect entry.
(5) Unless otherwise expressly ordered by the court, searches shall be carried out only between the hours of 6 A.M. and 6 P.M.
Art. 34.__ Physical examination
(1) Notwithstanding the provisions of Art. 20 Civil Code where an investigating police officer considers it necessary, having regard to the offence with which the accused is charged, that a physical examination of the accused should be made, he may require a registered medical practitioner to make such examination and require him to record in writing the results of such examination. Examination under this Article shall include the taking of a blood test.
(2) An investigating police officer may, with the agreement of the victim of an offence or, where he is incapable with the consent of the parent or guardian, require a registered medical practitioner to make such physical examination as the offence being inquired into would appear to require. He shall require the registered medical practitioner to record in writing the results of such examination.
Art.35. Power of court to record statements and confessions
(1) Any court may record any statement or confession made to it at any time before the opening of a preliminary inquiry or trial.
(2) No court shall record any such statement or confession unless, upon questioning the person making it, it ascertains that such person voluntarily makes such statement or confession. A note to this effect shall be made on the record.
(3) Such statement or confession shall be recorded in writing and in full by the court and shall thereafter be read over to the person making the statement or confession, which shall sign and date it. The statement shall then be signed by the president of the court.
(4) A copy of the record shall then be sent to the court before which the case is to be inquired into or tried, and to the public prosecutor.
Art. 36 __ Diary of investigation
(1) Every police officer making a police investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary setting forth:
(a) The day on which he started and closed his investigation and
(b) All the steps taken in the course of the investigation; and
(c) The circumstances which the investigation disclosed; and
(d) All the means of evidence which may have been collected.
(2) He shall enter in the diary any order which he may have received from a court or the public prosecutor in the course of the investigation.
Art. 37 Repot of police investigation.
(1) Every police investigation under this Chapter shall be completed without unnecessary delay.
(2) As soon as the investigation is completed, the investigation police officer shall forward to the public prosecutor a report setting forth;
(a) The name of the parties; and
(b) The nature of the information and the names of all persons who appear to be acquainted with the circumstances of the case; and
(c) All the means of evidence which have been collected.
(3) The report shall specify all the steps which may have been taken with a view to preservation or otherwise.
Art. 38. – Action by public prosecutor on receiving report.
On receiving the report under Art. 37 the public prosecutor may:
A) Prosecute the accused on a charge drawn up by him under Art.109-122; or
B) Order that a preliminary inquiry be held under Art.80-93;or
C) Order further investigations; or
D) Refuse to institute proceedings under Art. 42
Art. 39. Closure of police investigation file
(1) The public prosecutor shall close the police investigation file where the accused:
(a) Has died ;or
(b) Is under nine years of age or
(c) Cannot be prosecuted under any special law or under public international law (diplomatic immunity)
(2) The provisions of art. 43-45 shall not apply where the case file is closed under this article.
(3) On closing the case file. The public prosecutor shall send a copy of his decision to the Advocate General. The private complainant, if any and the investigating police officer.
Chapter 3. Institution of Proceedings

Art. 40 Duty to institute proceedings

(1) Subject to the provisions of Art. 42 the public prosecutor shall institute proceedings accordance with the provisions of this Chapter whenever he is of opinion that there are sufficient grounds for prosecution the accused.
(2) The public prosecutor shall not institute proceedings against a young person unless instructed so to do by the court under Art. 172.

Art. 41 Doubtful cases.

Where it is not clear whether proceedings should be instituted, the public prosecutor shall refer the matter for instructions to the Advocate General.
Art 42. Cases where proceedings shall not be instituted
(1) No proceedings shall be instituted where:
(a) The public prosecutor is of opinion that there is not sufficient evidence to justify a conviction; or
(b) There is no possibility of finding the accused and the case is one which may not be tried in his absence; or
(c) The prosecution is barred by limitation or the offence is made the subject of a pardon or amnesty: or
(d) The public prosecutor is instructed not to institute proceedings in the public interest by the Minister by order under his hand.
(2) On no other grounds may the public prosecutor refuse to institute proceedings.
(3) The public prosecutor shall institute proceedings in cases affecting the Government when so instructed by the Minister.
Art. 44 Effect of refusal.
(1) Where the public prosecutor refuses to institute proceedings under Art. 42 (1)(a) in relation to an offence punishable on complaint only, he shall authorize in writing the appropriate person mentioned in Art.47 to conduct a private prosecution. A copy of such authorization shall be sent to the court having jurisdiction.
(2) Where the public prosecutor refuses to institute proceedings under Art. 42 (1) (a) in relation to an offence which is not punishable on complaint only, the appropriate person mentioned in art, 47 may, within thirty days from having received the decision of the public prosecutor apply for an order that the public prosecutor institute proceedings.
Art. 45 form of and decision an application
(1) An application under Art. 44(2) shall be made to the court to which an appeal lies from decisions of the court which would have had jurisdiction, had proceedings been instituted.
(2) The court shall, after considering the refusal of the public prosecutor to institute proceedings under Art.42(1) and the reasons therefor either confirm the decision of the public prosecutor or order him to institute proceedings ;
Art. 46 Liability of private prosecutor.
The private prosecutor authorized to conduct a private prosecution under art. 44(1) shall conduct the private prosecution at his peril and at his own expense.
Art. 47 Persons entitled to conduct private prosecutions.
No person other than:
(a) The injured party or his legal representative; or
(b) The husband or wife on behalf of the spouse; or
(c) The legal representative of an incapable person; or
(d) The attorney or a body corporate;
May conduct a private prosecution.
Art. 48 Stay of proceedings in private prosecution pending institution of proceedings by public prosecutor.
Where the evidence in a private prosecution discloses that a more serious offence has resulted than has been charged in a private prosecution, the public prosecutor may apply to the court to stay the proceedings pending the institution of fresh proceedings by the public prosecutor and the court shall thereon stay the proceedings

ADMINISTRATION LAW, CONSTITUTION LAW, INTERNATIONAL LAW, News Post

Steps to be taken pending Investigation – Arrest Section

Steps to be taken pending Investigation

– Arrest Section

1. – Arrest without warrant

Art. 49 Principle.

Save as is otherwise expressly provided, no person may be arrested unless a warrant is issued and no person may be detained in custody except on an order by the court. An arrest without warrant may only be made on the conditions laid down in this section.
Art. 50 Arrest without warrant in flagrant cases.
Any private person or member of the police may arrest without warrant a person who has committed a flagrant offence as defined in Art. 19 and 20 of this Code, where the offence is punishable with simple imprisonment for not less than three months.
Art. 51 Arrest without warrant by the police
(1) Any member of the police may arrest without warrant any person:
(a) Whom he reasonably suspects of having committed or being about to commit an offence punishable with imprisonment for not less than one year;
(b) Who is in the act of committing a breach of the peace;
(c) Who obstructs a member of the police while in the execution of his duties or who has escaped or attempted to escape from lawful custody;
(d) Who has evaded or is reasonably suspected of having evaded police supervision;
(e) Who is reasonably suspected of being a deserter from the armed forces or the police forces;
(f) Who has in his possession without lawful excuse housebreaking implements or weapons;
(g) Who has in his possession without lawful excuse anything which may reasonably be suspected of being stolen or otherwise obtained by the commission of an offence;
(h) Who may reasonably be suspected of being a dangerous vagrant within the meaning of Art. 471 Penal Code.
(2) Nothing in this Article shall affect the power of other government officers to make an arrest without warrant under special provisions of other laws.

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Variation of Orders Contained in Sentences.

– Variation of Orders Contained in Sentences Art.216. – Principle.

(1) Where any order as defined in sub-art. (2) requires to be made, such order shall be made by the court having passed the sentence in relation to which such order is to be made.(2) The provisions of sub-art. (1) shall apply in cases of:(a) enforcement of internment (Art. 132 Penal Code); and(b) revision of orders made in respect of offenders not fully responsible (Art. 136 and 137 Penal Code); and(c) extension of detention (Art. 140 (2) Penal Code); and(d) revocation of probation or variation of rules of conduct (Art. 198, 202 (3) and 204 Penal Code); and(e) conditional release (Art. 131, 207, 209 – 112 Penal Code); and(f) orders under Art. 124(2) and 156 Penal Code.(3) Orders made in respect of young persons may be varied in accordance with the provisions of Art. 180 of this Code. Art.217. – Procedure and decision. (1) The court shall not make an order under this Chapter unless an application to this effect is made by the convicted person or his legal representative, the public prosecutor or any person or authority charged with executing or supervising the execution of the sentence.(2) Prior to making its decision, the court shall summon the person in respect of whom the order is to be made and such other person as is likely to give information to assist the court. The court may, where appropriate, order such inquiries to be made as appear necessary.(3) The court shall make its decision after having heard all the persons summoned and obtained the required information. Where the person in respect of whom the decision is to be made fails to appear, the court shall make its decision in his absence.(4) Any statement made and the decision of the court shall be recorded.(5) No appeal shall lie from a decision under this Article and such decision shall be carried out in accordance with the provisions of Chapter I of this Book.

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Prosecution and Inquiry:Setting in Motion Prosecution and Inquiry Setting justice in motion

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Execution of Sentences

Execution of Sentences .

– General Provisions Art.203. – Principle.

(1) Any court having passed a sentence in a criminal case shall issue the necessary warrants or orders requiring the appropriate authorities to carry out or supervise the carrying out of the sentence in accordance with the provisions of this Book.(2) Nothing in this Article shall affect the provisions of Art. 188. Art.204. – Warrant in respect of person sentenced to death. (1) Where any person is sentenced to death, the presiding judge shall by warrant under his hand in the form prescribed in the Third Schedule to this Code order such person to be detained until the pleasure of His Imperial Majesty shall be made known.(2) Where the sentence is confirmed, it shall be carried out in accordance with the conditions laid down in the order of confirmation.(3) Where the sentence is commuted, the order of commutation shall be sufficient authority for carrying into effect the terms of such order. Art.205. – Warrant in respect of person sentenced to loss of liberty. (1) Where any person is sentenced to arrest, imprisonment of internment, the presiding judge shall by warrant under his hand in the form prescribed in the Third Schedule to this Code order the sentence to be carried out.(2) Such warrant shall be sufficient authority for the officer in charge of the prison and all other persons to carry out the sentence described in the warrant. Art.206. – Execution may be postponed in certain cases. Where a person who has been sentenced to arrest or simple imprisonment not exceeding one year is:(a) a pregnant woman; or(b) the sole support of his family,and such person is not likely to be a danger to public security, the court may postpone the execution of the sentence for a period not exceeding six months on production of guarantors for his good behaviour. Art.207. – Warrant in respect of person sentenced to flogging. Where any person is sentenced to be flogged for an offence under Art. 635 (3) or 637 (1) Penal Code, the presiding judge shall by warrant under his hand in the sixteenth form prescribed by the Third Schedule to this Code order that the sentence be carried out in accordance with Art. 120A Penal Code by such person and at such place as shall be specified in the warrant. Art.208. – Warrant in respect of irresponsible persons. Where any person is found to be not fully responsible for his acts and the court decides that he be confined or treated in accordance with the provisions of Art. 134 or 135 Penal Code, the presiding judge shall by warrant under his hand in the fifteenth form prescribed in the Third Schedule to this code order that the accused be remanded to a suitable institution for confinement or treatment. Art.209. – Recovery of fines. (1) Fines shall be recovered on the order of the court by the execution officer in accordance with the provisions of Art. 91,171, (1), 703 and 710 Penal Code.(2) Where a fine or any part thereof has not been recovered, the execution officer shall refer the matter to the court and thereupon the court shall make the appropriate orders for execution or for the fine to be converted into labour, arrest or simple imprisonment in accordance with the provisions of Art. 92, 94, 96, 171 (2) and 709 Penal Code.(3) Where a person has been sentenced in his absence to pay a fine, the provisions of sub-art. (1) shall not apply and the court shall forthwith order that execution be levied on the convicted person’s property. Art.210. – Payment of costs and compensation. Where a judgment given by a criminal court contains provisions for the payment of legal costs or compensation, such part of the judgment as contains such provisions shall be executed in the same manner as a civil judgment. Art.211. – Confiscation of property. (1) Where an order for confiscation of property has been made under Art. 272 Penal Code, the court shall make an order requiring the execution officer to seize such property as is seizable under the provisions of Art. 97 Penal Code and shall specify in such order the property to be seized.(2) On seizing such property, the execution officer shall hold it until he receives an order from the competent authority requiring him to hand over such property to a person or persons named in such order and on so handing such property, the execution officer shall be given a detailed receipt by such person or persons.(3) The family of the convicted person may apply to the court for the release of any property wrongly confiscated. Art.212. – Sequestration of property. (1) Where a person is sentenced in his absence to have his property sequestrated for an offence as defined in Art. 272 Penal Code, the court shall make an order:(a) requiring the execution officer to attach such property as may be attached under Art. 98 Penal Code and shall specify in such order the property to be attached; and(b) appointing a trustee to manage the property and on such appointment the execution officer shall hand over the property to such trustee against a detailed receipt.(2) The execution officer shall be responsible for ensuring that none of the property mentioned in Art. 97 (3) Penal Code be attached. The family of the convicted person may apply to the trustee for the release of any property wrongly attached.(3) An order or attachment made under sub-art. (1) shall remain in force until an application for its removal is made to the court by the competent authority and thereupon the court shall order the attachment to be removed and the trustee discharged on submitting proper accounts. Art.213. – Orders in respect of young persons. (1) Where an order is made in respect of a young person under Art. 162, 165, 166, 173 or 703 Penal Code, the presiding judge shall sign and send an order to the responsible official, headmaster, director or officer in charge, as the case may be, and such order shall be sufficient authority to deal with young person on the conditions laid down in the order.(2) Where an order is made in respect of a young person under Art. 163 Penal Code, the presiding judge shall sign and send an order to one of the persons mentioned in Art. 163 Penal Code and such order shall be sufficient authority to deal with the young person on the conditions laid down in the order.(3) Where a young person is sentenced to caning under Art. 72 Penal Code, the presiding judge shall cause the young person to be medically examined as to his fitness to undergo corporal punishment and, where he has been found fit, he shall cause the caning to be carried out in a private place by a family elder or such other suitable person as the presiding judge shall appoint, in the presence of himself, the person who has examined the young person and the young person’s parents, relatives or guardian, if any. Art.214. – Compulsory labour, secondary penalties and measures. Where an order is made under Art. 102, 103, 122, 144, 146, 147, 149-154-158-160, 178, 179, 715, 716, or 718-720 Penal Code, the court shall cause a copy of the operative part of the judgment to be served on the appropriate authorities and require them to carry the order into effect. Art.215. – Recording of orders for execution. The court shall record any order it may have made with a view to the sentence being executed. A note shall be made of the day on which such order was executed and, where appropriate, of the reasons why such order could not be executed.

POLITICS

“Ethiopia’s Democratic Transition: One Step Forward, Two Steps Back”

CONSTITUTION LAW, CRIMINAL LAW, INTERNATIONAL LAW

THE HEARING. ART 123 TRIAL TO BE FIXED.

December 14, 2020 surafelmoha Leave a comment

Section 1-
The hearing Art.123-Trial to be fixed.

When the charge has been filed under Art. 109, the court shall forthwith fix the date of trial and cause the accused and the public prosecutor to be summoned to appear on the date and at the time fixed by the court. It shall take such steps as are necessary to secure the attendance of the accused, if in custody.

Art.124-Witness summonses.

(1) So soon as the date of the trial has been fixed, the public prosecutor and the accused shall give the registrar a list of their witnesses and expert, if any, whose presence is necessary. The registrar shall forthwith issue summonses in the form prescribed in the Third Schedule to this Code.

(2) The public prosecutor and the accused shall be responsible for ensuring the all exhibits to be produced at the trial shall be in court on the day fixed for the trial.

Art.125-Bench warrant.

Where an accused person or a witness, who has been duly summoned and there is proof of service of such summons, has failed to appear as required, the court may issue a bench warrant and such accused person or witness shall be brought before the court be the police.

Art.126-Opening of hearing.

(1) The court shall sit on the day and at the hour fixed for the hearing.

(2) Where an interpreter is required for the purposes of any proceedings, the court shall select a qualified court interpreter. Where none is available it will select a court shall select a qualified court interpreter. Where none is available it will select a competent interpreter but no person shall be selected who is a relative to the accused or prosecutor or is himself a witness.

(3) The case shall be called and the accused shall be produced.

Art.127-Attendace of accused.

(1) The accused shall appear personally to be informed of the charge and to defend himself. When he is assisted by an advocate the advocate shall appear with him.

(2) The accused shall be adequately guarded and shall not be chained unless there are good reasons to believe that he is dangerous or may become violent or may try to escape.

Art.128-Verification of identity;

When the accused has been brought into the dock his identity, age and trade shall be established.

Asrt.129.-Reading out of charge.

The charge shall be read out to the accused by the presiding judge who shall then ask the accused if he has any objection to the charge.

Art.130-Objection to the charge.

(1) If the accused has anything to say as to the form or contents of the charge, the provisions of Art.119 et seq. shall apply.

(2) The provisions of Art. 131 shall apply where the accused states:

(a) That he the case is pending before another court; or

(b) That he has previously been acquitted or convicted on the same charge or

(c) That the charge against him has been barred by limitation or the offence with which he been charged has been made the subject of pardon or amnesty; or

(d) That he will be embarrassed in his defiance if he is not granted a suppurate trial, where he is tried with others; or

(e) That no permission to prosecute as required by law has been obtained; or

(f) That the decision in the criminal case against him cannot be given until other proceedings have been completed; or

(g) That he is not responsible for his acts.

(3)where no objects is raised under this Article immediately after the accused has been required by the court to state his objections, the accused shall be barred from raising any such objection at any later stage in the trial, unless objection be such as to prevent a valid judgment being given.

Art.131-Settlement of objections.

(1) The court shall take down any objection that may have been raised under Art.130 (2) and shall ask the prosecutor whether he has any statement to make in relation to such objection.

(2) The court shall decide forthwith on the objection where the objection can be disposed of by reference to the law or the facts on which the objective is based are not disputed by the prosecutor.

(3) Where a decision cannot be made forthwith owing to lack of evidence. The court shall order that the necessary evidence be submitted without delay.

(4) The court shall make its decision forthwith upon the necessary evidence having been produced.

Art.132-place of accused.

(1) After the charge has been read out and explained to the accused, the presiding judge shall ask the accused whether he pleads guilty or not guilty.

(2) Where there is more than one charge the presiding judge shall read out and explain each charge one by one and shall record the plea of the accused in respect of each charge separately.

(3) The plea of the accused shall be recorded as nearly as possible in the words of the accused.

Art.133-Plea of not guilty.

(1) Where the accused says nothing in answer to the charge or denies the charge, a plea of not guilty shall be entered.

(2) Where the accused admits the charge with reservations, the court shall enter a plea of not guilty.

Art.134-Plea of guilty.

(1) Where the accused admit without reservations every ingredient in the offence charged, the court shall enter a plea of guilty and may forthwith convict the accused.

(2) Where a plea of guilty has been entered, the curt may require the prosecution to call such evidence for the prosecution as it considers necessary and may permit the accused to call evidence.

Art.135-Amendment of plea.

(1) Where a plea of guilty has been entered and it appears to the court in the course of proceedings that a plea of not guilty should have been entered, the court may change the plea to one of not guilty.

(2) The conviction, if any, shall then be set aside.

Section 2-Evidence and judgment

Art.136- opening of case of calling of witnesses for prosecution.

(1) After the plea of the accused has been entered, the public prosecutor shall open his case explaining shortly the charges he proposes to prove and the nature of the evidence he will lead. He shall do so in an impartial and objective manner.

(2) The public prosecutor shall then call his witnesses and experts, if any. The witnesses and experts shall be sworn or affirmed before they give their testimony.

(3) They shall be examined in chief by the public prosecutor, cross-examined by the accused or his advocate and may be re-examined by the public prosecutor.

(4) The court may at any time put to a witness any question which appears necessary for the just decision of the case.

Art 137- Form of questions put in examination-in-chief.

(1) Questions put in examination-in chief shall only relate to facts which are relevant to the issues to be decided and to such facts only of which the witness has direct or indirect knowledge.

(2) No leading question shall be put to a witness without the permission of the accused or his advocate of the public prosecutor, as the case may be.

(3) Question put in cross-examination shall tend to show to the court what is erroneous, doubtful or untrue in the answers given in examination- in chief. Leading question may be to a witness in cross-examination.

Art.138-Atecedents accused.

(1) Unless otherwise expressly provided by law, the previous convictions of an accused person shall not be disclosed to the court until after he has been convicted.

(2) The previous convictions of an accused person shall not be included in the record of any preliminary inquiry.

Art.139-Re-examiniation.

The public prosecutor, the accused or his advocate may on re-examination only ask questions for the purpose of clarifying matters which have been raised in cross-examination.

Art.140- Absence of cross-examination.

Failure to cross-examine on a particular point does not constitute an admission of the truth of the point by the opposite party.

Art.141- Acquittal of accused when no case for prosecution.

When the case for the prosecution is concluded, the court, if it finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, shall record an order of acquittal.

Art.142-Opening of case for defence.

(1) Where the court finds the t a case against the accused has been made out and the witnesses for the injured party, if any, have been heard it shall call on the accused to enter upon his defence and shall inform him that he may make a statement in answer to the charge and may call witnesses in his defence.

(2) The accused or his advocate may open his case and shortly explain his defence stating the evidence he proposes to put forward. He shall then call his witnesses and expert, if any, who shall be worn or affirmed before they give their testimony.

(3) The witnesses for the defense may be called in any order,

Provided that, where the accused wishes to make a statement, he shall speak first.

The accused may not be cross-examined on his statement but the court may put questions to him for the purpose of clarifying any part of his statement.

Art.143-Additional witnesses.

(1) The court may at any time before giving judgment call any witness whose testimony it thinks is necessary in the interests of justice.

(2) The prosecution and the accused may call any witness whose name does not appear on the list of witnesses. Such witness shall be summoned where the court is satisfied that he is a material witness and the application for a summons is not being made for the purpose of delaying the case.

(3) The prosecutor may in a case committed for trial to the High Court call any witness who has not given evidence at the preliminary inquiry where he informs the accused in writing of the name of the witness he proposes to call and of the nature of the testimony he will give.

Art.144-Depositions taken in preliminary inquire may be put in evidence.

(1) The deposition of a witness taken at a preliminary inquiry may be read and put in evidence before the High Court where the witness is dead or insane, cannot be found, is so ill as not to be able to attend the trial or is absent from the Empire.

(2) The deposition of an expert taken at a preliminary inquiry may be read and put in evidence before the High Court although he is not called as a witness.

Art.145-Statements made in police investigation may be put in evidence.

(1) The court may, on the request of the accused or the prosecutor, refer to statement made by a witness to a police officer in the curse of police investigation.

(2) In may then, if it thinks it expedient in the interests of justice, direct the accused to be furnished with a copy thereof and such statement may be used to impeach the credit of such witness.

Art-146-objection to evidence.

Where the prosecutor the accused objects to the admission of any evidence or the putting of a question to a witness, the court shall decide forthwith on the admissibility of such evidence.

Art-147-Recording of evidence

(1) The evidence of every witness shall start with his name, address, occupation and age an indication that he has been sworn or affirmed.

(2) The evidence of each witness shall be taken down in writing by the presiding judge or, if, for some reason, he is unable to record the evidence, by another judge or clerk under his personal direction and superintendence.

(3) The evidence shall be divided into evidence –in chief, cross-examination and re-examination with a not as to where the cross-examination and re-examination begin and end.

(4) The evidence shall ordinarily be taken down in the form of a narrative.

Provided that the presiding judge may, in his direction, take down or cause to be taken down any particular question and answer.

Art.148-Final addresses.

(1) After the evidence for the defence has been concluded the prosecutor may address the court on questions of law and fact.

(2) The accused or his advocate shall then address the court on questions of law and fact. He shall always have the last word.

(3) Where there are more than one accused the presiding judge shall decide in which order the accused or their advocates shall address the court.

Art.149-judgmetn and sentence

(1) When the final addresses including the addresses under Art.156, if any, have been concluded, the court shall give judgment. The judgment shall be dated and signed by the judge delivering it. The judgment shall contain summary of the evidence, shall give reasons for accepting or rejecting evidence and shall contain the provisions of the law on which it is based and, in the case of a conviction, the article of the law under which the conviction is made.

(2) Where the accused is found not guilty, the judgment shall contain an order of acquittal and, where appropriate, an order that the accused be released from custody.

(3) Where the accused is found guilty, the court shall ask the prosecutor whether he has anything to say as regards sentence by way of aggravation or mitigation. The prosecutor may call witnesses as to the character of the accused.

(4) Where the prosecutor has made his submissions on sentence the accused or his advocate shall be entitled to reply and may call witnesses as to character. Where accused does not admit any fact regarding his antecedents, the prosecutor shall be required to prove the same.

(5) The court shall then pass sentence and shall record the articles of the law under which the sentence has been passed.

(6) Nothing herein contained shall affect the provisions of Art.195 and 196 Penal Code.

(7) After delivery of judgment the prosecutor and the accused shall be informed of their right of appeal.

Chapter 5-Private prosecution

Art.150-Filing complain and charge

(1) Where a private complainant has been authorized under Art. 44 (1) to conduct a private prosecution, he shall within fifteen days file his complaint and the charge in the court having jurisdiction.

(2) Where a charge is not in accordance with the authorization the court shall require the private complainant to amend the charge to confirm to such authorization.

Art.151-Attempt to reconcile the parties.

(1) When the complaint and the charge have been filed the court shall summon the complainant and the accused to appear.

(2) Before reading out the charge to the accused the court shall attempt to reconcile the parties. Where a reconciliation is effected, if shall be recorded by the court and shall have the effect of a judgment.

Art.152- Security for costs.

Where a reconciliation has not affected, the court shall decide whether the private prosecutor should give security for costs. Where an order for security is made, the sum to be secured and the nature of the security shall be stated in the order.

Art.153-Hearing and judgment.

(1) Where the private prosecutor has complied with the order, if any, under Art.152, the case shall proceed in accordance with Art.123-149, the parties having the same rights and duties as in public proceedings.

(2) The court shall give judgment as in ordinary cases.

Chapter 6-injured party in criminal proceedings

Art.154-principle

(1) Where a person has been injured by a criminal offence, he or his representative may at the opening of the hearing apply to the court trying the case for an order that compensation be awarded for the injury caused. The application shall be in writing and shall specify the nature and amount of the compensation sought. He shall not on filing his application pay the prescribed court fees us though it were a civil case.

(2) The person making the application shall be shown the list of the witness to be called by the prosecution and defiance and shall be asked whether he wishes additional witnesses to be called. Where he wishes additional witnesses to be called, he shall be required to pay the prescribed fees for the issue of witness summonses as though it were a civil case.

(3) The provisions of this chapter shall apply to public and private prosecutions

(4) Where the person making the application acts in the capacity of private prosecutor, he shall specify which witnesses he calls in support of the prosecution and which he calls in support of his civil claim. The provisions of sub-art. (1) and (2) shall apply.

Art.155-Application dismissed.

(1) The court shall consider the application and shall of its own motion or on the request of the prosecution or the defence refuse the application where.

(a) A young person is the accused; or

(b) The accused is being tried in his absence; or

(c) The injured party has instituted proceedings in a civil court having jurisdiction; or

(d) The person making the application is not qualified for suing; or

(e) The claim for compensation cannot be determined without calling numerous witnesses in addition to those to be called by the prosecution and defiance; or

(f) The court is of opinion that the hearing of the injured party’s claim for compensation is likely to confuse, complicate or delay the hearing of the criminal case.

(2)The application shall be dismissed where the amount of compensation claimed exceeds the pecuniary jurisdiction of the court.

(3) where the court dismisses the application its decision shall be final and no appeal shall lie against it. The injured party shall be informed by the court that he may file a claim against the accused in a civil court.

Art.156- Application allowed.

(1) Where the application is allowed the injured party shall be entitled to take part in the proceedings and shall have with regard to evidence all the rights of an ordinary party.

(2) The court shall at the close of the case for the defence permit the injured party or his representative to address the court in person or by advocate on the question of the amount of compensation to be awarded. The accused of his advocate shall have the right to reply.

Art.157-injured party may withdraw.

An injured party may at any time before the close of the case for the defence withdraw his application and thereupon he may file a claim against the accused in the civil court having jurisdiction.

Steps to be taken pending Investigation – Arrest Section

December 14, 2020 surafelmoha Leave a comment

Steps to be taken pending Investigation

– Arrest Section

1. – Arrest without warrant

Art. 49 Principle.

Save as is otherwise expressly provided, no person may be arrested unless a warrant is issued and no person may be detained in custody except on an order by the court. An arrest without warrant may only be made on the conditions laid down in this section.
Art. 50 Arrest without warrant in flagrant cases.
Any private person or member of the police may arrest without warrant a person who has committed a flagrant offence as defined in Art. 19 and 20 of this Code, where the offence is punishable with simple imprisonment for not less than three months.
Art. 51 Arrest without warrant by the police
(1) Any member of the police may arrest without warrant any person:
(a) Whom he reasonably suspects of having committed or being about to commit an offence punishable with imprisonment for not less than one year;
(b) Who is in the act of committing a breach of the peace;
(c) Who obstructs a member of the police while in the execution of his duties or who has escaped or attempted to escape from lawful custody;
(d) Who has evaded or is reasonably suspected of having evaded police supervision;
(e) Who is reasonably suspected of being a deserter from the armed forces or the police forces;
(f) Who has in his possession without lawful excuse housebreaking implements or weapons;
(g) Who has in his possession without lawful excuse anything which may reasonably be suspected of being stolen or otherwise obtained by the commission of an offence;
(h) Who may reasonably be suspected of being a dangerous vagrant within the meaning of Art. 471 Penal Code.
(2) Nothing in this Article shall affect the power of other government officers to make an arrest without warrant under special provisions of other laws.

ETHIOPIAN NEWS, News Politics, POLITICS

አቶ ልደቱ አያሌው

December 13, 2020 surafelmoha Leave a comment

ADMINISTRATION LAW, CONSTITUTION LAW, INTERNATIONAL LAW

PROCEDURE IN CASES CONCERNING YOUNG PERSONS

Procedure incases Concerning Young Persons

Art.171- Principle.

Criminal case concerning young persons shall be tried in accordance with the provisions of the Chapter.

Art.172-institution of proceedings.

(1) In any case where a young person is involved. He shall be taken immediately before the nearest Woreda Court by the police, the public prosecutor, the parent or guardian or the complainant.

(2) The court shall ask the person bringing the young person to state the particulars and the witnesses, if any, of the alleged offence or to make a formal complaint, where appropriate, and such statement or complaint shall be recorded . The court may give the police instructions as to the manner in which investigations should be made.

(3) Where the accusation relates to an office punished with rigorous imprisonment exceeding ten years or with death (Art.173 penal Code) the court shall direct the public prosecutor to frame a charge.

(4) Where the case requires to be adjourned or to be transferred to a superior court for trial, the young person shall be handed over to the care of his parents, guardian or relative and in default of any such person to a reliable person who shall be responsible for ensuring his attendance at the trial The witnesses shall be bound over to appear at the trial.

Art.173-Summunig of young person’s guardian.

Where the young person is brought before the court and his parent, guardian or other person in loco parentis is not present, the court shall immediately inquire whether such person exists and shall summon such person to appear without delay.

Art.174-Young person may be assisted by counsel.

The court shall appoint an advocate to assist the young person where;

(a) No parent, guardian or other person in loco parentis appears to represent the young person, or

(b) The young person is young is charged with an offence punishable; with rigorous imprisonment exceeding ten years or with death.

Art.175-Removal of young person from chambers.

Where any evidence or comments are to be given or made which it is undesirable that the young person should hear, he shall be removed from the chambers while such evidence or comments are being given or made.

Art.176-Hearing

(1) Where the young person is brought before the court all the proceedings shall be held in chambers. Nobody shall be present at any hearing except witnesses, experts, the parent or guardian or representatives of welfare organizations. The public prosecutor shall be present at any hearing in the High Court.

(2) All proceedings shall be conducted in an informal manner.

(3) The accusation or complain under Art.172 (2) or the charge under Art.172(3) shall be read out to the young person and he shall be asked what he has to say in answer to such accusation or charge.

(4) If it is clear to the court from what the accused says that he fully understands and does not admits the accusation or charge, the court shall record what the young person has said and may convict him immediately.

(5) If it is clear to the court from what the accused says that he fully understands and does not admit the accusation or charge, the court shall inquire as to what witnesses should be called to support such accusation or charge. The young person, his representative or advocate may cause any witnesses to be summoned.

(6) All witnesses shall be examined by the court and may thereupon be cross examined by the defence. All depositions shall be recorded.

(7) When the evidence is concluded, the defence may sum up and there—after the court shall give judgment.

Art.177-Judgment.

(1) The judgment shall specify the provisions of the law on which it is based. Where the young person is found not guilty, he shall be acquitted and set free forthwith. Where he is found guilty, the court shall impose the appropriate measure or penalty under Art.162. et seq. Penal Code.

(2) The court may call before it any person or representative of any institution with a view to obtaining information concerning the character and antecedents of the young person so as to arrive at a decision which is in the best interest of the young person.

(3) After these persons have been heard, the defence may reply and call his witnesses as to character, who shall be interrogated by the court and thereupon the defence shall address the court as to sentence.

(4) Judgment shall be given as in ordinary cases. The court shall explain its decision to the young person and warm him against further misconduct.

Asdrt.178-Order which may be made against parents and guardians.

Where it thinks fit the court may warn, admonish or blame the parents or other person legally responsible for the young person where it appears that they have failed to carry their duties.

Art.179-Cost of upkeep of young person in certain circumstances.

(1) The parents or other person legally responsible for the care of a young person may be ordered to bear all or part of the cost of his upkeep and training where owing to their failure to exercise proper care and guardian ship the court has ordered the young person to be sent to the care of another person or to a corrective or curative institution.

(2) The scope and duration of such obligation shall be specified in the judgment.

Art.180-Variation or modification of order made in respect of young person.

Any court which has sentenced a young person to a measure may at any time of its own motion or on the application of the young person, his legal representative or the person or institution to which he was entrusted, vary or modify such order if the interest of the young person so requires.

ADMINISTRATION LAW, CONSTITUTION LAW, INTERNATIONAL LAW

PROCEDURE IN CASE OF DEFAULT

Procedure in Case of Default

Art 160-Principle.

(1) The provisions of this Chapter shall apply where the accused fails to appear whether the prosecution is public or private but shall not apply to young offenders.

(2) Where the accused does not appear on the date fixed for the trail and no representative appears satisfactorily to explain his absence, the court shall issue a warrant for his arrest.

(3) Where the warrant cannot be executed, the court shall consider trying the accused in his absence. Where an order to this effect is made the provisions of the following articles shall apply.

Section 1-Failure to appear in public proceedings

Art.161- Conditions for trying accused person in his absence.

(1) Where the accused fails without good cause to appear on the day fixed for the bearing, the court shall record his absence and may direct that he be tried in his absence in accordance with provisions of this Section.

(2) No accused person may be tried in his absence under the provisions of this Section unless he is charged with;

(a) An offence punishable with rigorous imprisonment for not less than twelve years: or

(b) An offence under Art.354-365 penal Code punishable with rigorous imprisonment or fine exceeding five thousand dollars.

Art.162- Publication of summons.

Where the court decides to hear the case in the absence of the accused it shall order the publication of the summons which shall show the date fixed for the hearing. It shall contain a notification to the accused that he will be tried in his absence if he fails to appear.

Art.163. Hearing and judgment.

(1) Where the accused fails to appear after publication of the summons in accordance with Art.162 the case shall continue as in ordinary cases.

(2) The prosecution witnesses shall then be heard and the public prosecutor shall make his final submission.

(3) The court shall give judgment as in ordinary cases.

Art.164- Setting aside of judgment.

An application to set aside the judgment may be made on the conditions laid down in Art.197-202.

ADMINISTRATION LAW, CONSTITUTION LAW, INTERNATIONAL LAW

Procedure in Cases of Petty Offences

Procedure in Cases of Petty Offences

Art.167-Summoning of accused.

(1) Where a petty offence has been committed, the public or private prosecutor shall apply to the court having jurisdiction to summon the accused to appear.

(2) The application and the summons shall contain the name of the accused, the circumstances of the petty offence committed and the law and articles of the law to be applied.

Art.168-Accused may plead guilty in writing to petty offence.

The accused may return the summons to the court endorsing thereon that he pleads guilty to such offence. Such endorsement shall be dated and signed by the accused. In such a case and without prejudice to the provisions of Art.189 (3), he shall be dispensed with the necessity of appearing in court in answer to the summons.

Art.169- Proceedings and judgment.

(1) On receipt of the summons so endured, the court shall record the plea of guilty and, having ascertained the facts of the case from the prosecutor, shall sentence the accused and send him a copy of the judgment.

(2) Where the court proposed to impose a fine only, it shall do so forth with

(3) Where the court intends to impose a sentence of arrest, compulsory labor, a warning or reproof, it shall summon the accused to appear and shall give the accused an opportunity to defend himself before sentence is passed.

Art.170-procedure where accused appears before the court charge with petty offence.

(1) Where the accused does not endorse on the summons that he pleads guilty, he shall appear on the day and at the time fixed for the hearing.

(2) The prosecutor and the accused shall take such steps as are necessary to secure the attendance of their witnesses, if any.

(3) The procedure shall be oral. The court shall only record the salient part of the evidence of each witness. It shall give judgment orally recording briefly the reasons for its judgment and mentioning the provisions of the law under which judgment is given.

(4) Where the accused fails without good cause to appear in private proceedings the court shall give judgment forthwith.

ADMINISTRATION LAW, CONSTITUTION LAW, INTERNATIONAL LAW

FAILURE TO APPEAR IN PRIVATE PROCEEDINGS

Failure to appear in private proceedings

Art.165-Absence of private prosecutor.

(1) Where the private prosecutor fails without good cause to appear on the date fixed for the hearing, the court shall strike out the case and order the discharge of the accused.

(2) Where a case has been struck out under sub-art (1), the private prosecutor may, within fifteen days of such striking out, apply to the court to have a fresh hearing date fixed. No application shall be granted unless the private prosecutor satisfies the court that his failure to attend on the day of the hearing was due to causes beyond his control.

(3) Where no application is made within fifteen days or it is dismissed, the striking out shall be final with regard to the private prosecutor.

Art.166-Absece of accused.

Where the accused is absent, the provisions of Art. 162 and 163 shall not apply and a bench warrant shall be issued.

News Post

Appeals and Applications to Set Aside Judgments Given in Default

Appeals and Applications to Set Aside Judgments Given in Default

TITLE 1

Appeal

Art.181-Principle

(1) An appeal shall lie in accordance with the provisions of his Book from a judgment of a criminal court whether it be a judgment convicting, discharging or acquitting an accused person.

(2) A second appeal shall lie in accordance with the provisions of Art. 182.

Art.182- Courts having appellate jurisdiction.

(1) An appeal shall lie from the decision of:

(a) A Woreda Court to the Awradja Court in whose area of jurisdiction such Woreda Court lies.

(b) An Awradja Court to the High Court:

(c) The High Court to the Supreme Imperial Court.

(2)A second appeal shall lie from a decision of:

(a) the Awradja Court in its appellate jurisdiction to the High Court:

(b) the High Court in its appellate jurisdiction to the supreme Imperial Court.

Art.183-Applicaton to His Imperial Majesty’s Chilot.

(1) Nothing in Art.182 shall prevent an appellant who has exhausted his rights of appeal under Art.182 from applying to His Imperial Majest’s Chilot for a review of the case.

(2) The application to His Imperial Majesty Chilot shall be accompanied by:

(a) A copy of the judgment or judgment with which the applicant is dissatisfied; and

(b) A reasoned memorandum setting forth clearly and concisely the reasons on which the applicant bases his request for a review.

Art.184-No interlocutor appeals.

No interlocutory appeal shall lie from a decision of the court:

(a) Granting or refusing an adjournment under Art.94:0r

(b) Regarding an objection under Art.131;or

(c) Regarding the admissibility or non-admissibility of evidence under Art.146.but any such decision may form the subject of a ground of appeal where an appeal is lodged against conviction, discharge or acquittal.

Art.185-Appeal against conviction and sentence.

(1) A convicted person may appeal against his conviction sentence; Provided that no appeal may be lodged by a convicted person who has pleaded guilty and has been convicted on such plea except as to the extent or the legality of the sentence.

(2) The public prosecutor may appeal against a judgment of acquittal, discharge or on the ground of inadequacy of sentence.

(3) Where a prosecution is conducted by a private prosecutor the private prosecutor may appeal in the same manner as is provided in sub-article (2).

(4) An appeal by a young person or by an incapable person shall be through his legal representative.

Art.186-Appeal where injured party claims compensation

(1) Where the court refuses to grant compensation under Art.100 penal Code the injured party may appeal against such decision.

(2) Where the court grants compensation the accused may appeal against such decision.

(3) An appeal shall lie against the amount of compensation awarded in accordance with the provisions of Art.2153 Civil Code.

(4) An appeal under this Article shall be heard by the criminal court of appeal where there is an appeal against conviction or sentence, but shall be heard by the civil court of appeal where there is no appeal against conviction or sentence or such appeal is withdrawn.

Art.187.Notice of appeal and memorandum of appeal.

(1) Notice of appeal against a judgment shall be given by the appellant or his advocate within fifteen days of the delivery of the judgment appealed against. On receipt of such notice of appeal, the registrar shall cause the judgment appealed against to be copied and handed to the appellant or his advocate and where the appellant is in custody the copy shall be sent to the superintendent of the prison in which he is confined for service on the appellant. Such copy shall be dated when completed and the date on which it is handed to the appellant or his advocate or is sent to the superintendent of the prison shall be certified by the registrar .

(2) The memorandum of appeal under Art, 189 shall be filed within thirty days of the receipt of the copy of the decision appealed against. The notice and memorandum of appeal shall be field in the registry of the court which gave the judgment appealed against.

(3) Where the appellant is in custody the superintendent of the prison in which he is confined shall forward the memorandum of appeal without delay to the curt against whose decision an appeal is made.

(4) A copy of the memorandum of appeal shall be served on the respondent to the appeal.

Art.188-Stay of execution.

(1) Where a convicted person has given notice of appeal no sentence of flogging shall be carried out until the appeal has been heard or abandoned by the appellant.

(2) Where an accused person is released on bail pending the hearing of his appeal the sentence of imprisonment shall not commence until the court of appeal delivers its judgment.

(3) Any measures which have been ordered by the court against whose judgment an appeal has been filed shall be carried out notwithstanding an appeal.

(4) There shall be no stay of execution in respect of the payment of compensation or costs.

(5) An application for stay of execution may be make to the court of appeal at any time before the appeal is heard or at the hearing of the appeal.

Art.189-Content of memorandum of appeal.

(1) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the judgment appealed against without and arguments and such ground shall be numbered consecutively. The memorandum shall be accompanied by a copy of the judgment appealed against. The memorandum of appeal shall state the nature of the relief that is sought.

(2) The memorandum of appeal shall be signed by the appellant and his advocate, if any.

Art.190-Record and exhibits to be forwarded to court of appeal.

(1) On receipt of the memorandum of appeal the court against whose judgment an appeal has been filed shall prepare without delay within fifteen days a copy of the record and forward it together with the appeal record (if any ), the notice and the memorandum of appeal and all exhibits to the court of appeal.

(2) The court of appeal may dispense with the making of a copy of the record where the making of such copy may delay unduly the hearing of the appeal and the Court may order the original file to be produced.

Art.191- Application for leave to appeal out of time.

(1) Where notice of appeal or a memorandum on appeal is filed out of time, the court against whose judgment the appeal is filed shall refuse to accept such notice or memorandum and shall require the person submitting such notice or memorandum to apply in writing to the court of appeal for leave to appeal out of time.

(2) The application shall state clearly the reasons why the appeal should be heard out of time and the reasons which occasioned the delay.

(3) The court of appeal shall not give leave to appeal out of time unless it is satisfied that the delay was occasioned by the default of the applicant.

(4) Where leave to appeal out of time is given the court of appeal shall fix the date by which the memorandum of appeal is to be filed.

Art.192-Hearing

The president of the court of appeal shall fix a day on which the appeal will be heard and the parties to the appeal shall be notified. The appellant shall open the appeal, the respondent shall reply and the appellant shall be entitled to reply.

Art.193-Absence of a party to the appeal.

(1) Where the appellant or his advocate is not present on the day fixed for the appeal and he has been notified of the hearing date, the appeal shall be struck out:

Provided that the appeal may be restored to the list where the appellant or his advocate can show that he was not present owing to circumstances beyond his control.

(2) Where the respondent or his advocate is not present the appeal shall proceed in his absence.

Art:194-Additional evidence.

(1) In dealing with an appeal the court of appeal, if it thinks additional evidence is necessary , shall record its reasons and may take such evidence itself.

(2) Evidence taken in pursuance of sub-art (1) shall be taken as if it were evidence taken at the trial in the court of first instance.

Art.195- Power of court of appeal.

(1) At the hearing of an appeal the court of appeal shall dismiss the appeal where there is no sufficient ground for interference.

(2) Where it consider that there is sufficient ground for interference, the court of appeal may:

(a) On an appeal from an order of acquittal or discharge reverse such order and direct that the accused be retried by a court of competent jurisdiction or find him guilty and sentence him according to law; or

(b) On an appeal from conviction and sentence:

(i) reverse the finding and sentence and acquit the accused: or

(ii) with or without altering the finding, maintain, increase or reduce the sentence:

(C) on an appeal from conviction only reverse the finding and sentence and acquit the accused;

(d) on an appeal from sentence the conviction but alters the sentence or vice versa a second appeal shall lie only in respect of the conviction or sentence which has been altered.

Art.196-where one appeal in case concerning several convicted persons.

(1) Where a court of appeal hears an appeal which concerns several convicted persons but only one of them appeals, it may direct that its judgment be applied to those other accused as though they had appealed where:

(a) The judgment is to the benefit of the appellant, and

(b) Had the accused appealed they would have benefitted similarly,

(2) No order made to the prejudice of an appellant may be applied to a person who has not appealed.

CONSTITUTION LAW, INTERNATIONAL LAW

Preliminary Inquiry and Committal for Trial

Preliminary Inquiry and Committal for Trial

Art.80.—Principle.

(1) Where any person is accused of an offence under Art. 522 (homicide in the first degree) or Art. 637 (aggravated robbery) a preliminary inquiry shall be held under the provisions of this Book.

Provided that nothing in this Article shall prevent the High Court from dispending with the holding of a preliminary inquiry where it is satisfied by the public prosecutor that the trial can be held immediately.

(2) Where any person is accused of any other offence triable only by the High Court no preliminary inquiry shall be held unless the public prosecutor under Art. 38 (b) so directs.

(3) The provisions of this Book shall not apply to offences coming within the jurisdiction of the High Court which have been committed by young persons.

Art.81.—Court having jurisdiction.

(1) Without prejudice to the provisions of Art. 99-107, the preliminary shall be held before the Woreda Guezat Court within whose area of jurisdiction the offence was committed.

Art.82.—Procedure.

(1) All preliminary inquiries shall be held in the manner provided by the following Articles.

(2) An adjournment may be granted on the conditions laid down in Art. 94.

Art.83.—Opening of preliminary inquiry.

(1) Where the public prosecutor decides under Art. 80 (2) that a preliminary inquiry shall be held, he shall send a copy of his decision to the Woreda Guezat Court having jurisdiction and, where appropriate, to the public prosecutor acting before such court.

(2) The court shall fix the day on which the inquiry shall be held and cause to be summoned such witnesses as the prosecutor may wish to call in support of the prosecution.

(3) The case for the prosecution shall be conducted by the public prosecutor acting before the committing court.

Art.84.—Taking evidence for prosecution.

(1) Where the accused person appears or is brought before it, the court shall require the prosecutor to open his case and to call his witnesses.

Art.85.—Accused asked whether he wishes to make a statement.

(1) After the witnesses for the prosecution have been heard and their evidence recorded, the court shall ask the accused whether he wishes to make a statement in answer to the charge.

(2) He shall be informed that the preliminary inquiry does not constitute a trial and that the decision as to his guilt or innocence will be taken by the High Court and not by the committing court.

(3) He shall be informed that he is not bound to say anything but that any statement he may wish to make will be taken down in writing and may be put in at his trial.

Art.86.—Statement of accused.

(1) If the accused elects to make no statement, he shall forthwith be committed for trial before the High Court.

(2) If the accused elects to make a statement, such statement shall be taken down in writing, read over to him, signed by the accused and kept in the file.

Art.87.—Additional witnesses.

The court may at any time call any witness whose testimony it thinks necessary in the interests of justice, notwithstanding that the prosecutor has not applied for such witness to be summoned.

Art.88.—Recording of evidence.

Evidence shall be recorded in accordance with Art. 147 and the evidence of each witness shall be recorded on separate sheets of paper.

Art.89.—Committal for trial.

(1) After the statement, if any, of the accused has been taken down, the court shall commit the accused for trial before the High Court without specifying the charge or charges on which he is committed for trial.

(2) Such charge or charges shall be specified in the charge framed by the public prosecutor in accordance with Art. 109-122 of this Code.

(3) The court shall then require the accused to give a list of the witnesses he wishes to call at his trial together with their addresses.

Art.90.—Bond of witnesses.

(1) All witnesses who have given evidence at the preliminary inquiry shall execute before the committing court bonds binding themselves to be in attendance before such court and on such date as they shall be summoned to appear.

(2) Any witness who refuses to execute the bond may be kept in custody until the trial or until he binds himself.

Art.91.—Record to be forwarded to registrar.

(1) When the accused is committed for trial, the committing court shall send the original record and the exhibits (if any) to the registrar of the High Court. Any exhibit which from its bulk or otherwise cannot conveniently be forwarded to the registrar of the High Court may remain in the custody of the police.

(2) A list of all exhibits showing which of them are forwarded with the record and which remain in the custody of the police shall be sent to the registrar of the High Court with the record.

(3) The registrar of the High Court shall be responsible for making copies of the record and sending one to the public prosecutor and one to the accused.

Art.92.—Contents of record.

(1) The record shall contain the following particulars:-

(a) The serial number of the case; and

(b) The date of the commission of the offence; and

(c) The date of the accusation, if any; and

(d) The name and address of the accuser, if any; and

(e) The name, address occupation and age, if known, and nationality of the accused; and

(f) The offence shown and, where appropriation, the value of the property in respect of which or the special status of the person against whom the offence was committed; and

(g) The date of the warrant of arrest, if any, or on which the accused was first arrested; and

(h) The date on which the accused was first brought before a court; and

(i) The name of the prosecutor and, where appropriate, of the advocate for the defense; and

(j) The date of and reasons for any adjournment that may have been granted; and

(k) The date on which the preliminary inquiry was completed; and

(l) All statements made in the course of the preliminary inquiry, including those which may have been made by the accused; and

(m) the list of defense witnesses.

(2) The same particulars shall appear in the copy of the proceedings sent to the public prosecutor and the accused.

Art.93.—Accused may be remanded.

Without prejudice to the provisions of this Code relating to release on ball the committing court may order that the accused be kept on remand until the trial.

CONSTITUTION LAW, CRIMINAL LAW, INTERNATIONAL LAW

Costs in Criminal Cases

Costs in Criminal Cases

Art.220. – Costs of public prosecution.

(1) All the costs of public prosecutions, including appeals, shall be borne by the government.

(2) Where exceptional costs have been incurred by the prosecution for a reason attributable to the convicted person and he is a person of property, the court may, in addition to any other lawful punishment, order him to pay the whole or any of the costs incurred by the prosecution as taxed by the registrar of the court.

(3) Where a public prosecution has been instituted in respect of an offence. punishable on complaint and the injured party withdraws his complaint (Art. 221 Penal Code), he shall be liable for all the costs of the prosecution.

Art.221. – Costs of private prosecution.

(1) The costs of private prosecution shall be borne by the private prosecutor in accordance with Art. 46.

(2) Where in a private prosecution the accused is acquitted and the court is on opinion that the charge was not made in good faith, it may order the private prosecutor to pay the whole or any part of the costs incurred by the accused.

(3) Where a private prosecution is stayed as provided in Art. 48, all the costs of the private prosecution shall be borne by the government.

Art.222. – Injured party.

(1) Where the injured party claims compensation in a criminal case, he shall pay:

(a) the court fees on the sum claimed as though it were a civil case; and

(b) the costs of summoning witnesses and calling experts.

(2) Where the injured party succeeds in his claim, the court shall order the accused to pay the court fees and costs mentioned in sub-art. (1).

News, News Politics, News Post

Lidetu Ayalew

Lidetu to continue to defend two charges related to alleged attempt to challenge the constitutional order forcefully

Ethiopian Democratic Party announced on Friday that the leader, Lidetu Ayalew, is released from prison on 30,000 birr bail. He was charged with “illegal possession of firearms,” and ‘attempting to overthrow federal and regional government forcefully. He has been in jail since the days following the assassination of singer Hachalu Hundesa on June 29. His party announced that it was the supreme court in the Oromo region of Ethiopia that ruled Lidetu be released on 30,000 Ethiopian Birr bail. It means that he will continue to defend himself against the charges mentioned above from outside the prison cell. A court in East Show zone ruled a few months ago that he be released on 100,000 birr bail for the charge related to “illegal possession of firearms.” However, police defied the court order and Lidetu had to remain in prison until Friday morning this week. He is said to have appeared in court about 41 times since his arrest about five months ago. The second charge was laid after police retained him against court order, according to information from his party. He was particularly implicated in alleged involvement in coordinating Youth in Bishoftu (Debre Zeit), where he lives, for protest. Lidetu denied the charges. “On behalf of my party and our members, I would like to express sincere gratitude to lifeline lawyers Abduljabar Hussien,Mohammed Jimma, Gemechu Gutema and Ashenafi Anteneh,” said Adane Tadesse who is president of Ethiopian Democratic Party. Lidetu Ayalew is founder of Ethiopian Democratic Party and led the party for many years. He tends to be critical towards Prime Minister Abiy Ahmed’s government. He thinks Abiy Ahmed’s mandate as Prime Minister of the country ended on September 30 of this year — a position that the nearly defunct Tigray People’s Liberation Front (TPLF) strongly held. The political stand is based on the view that postponement of the sixth general election was illegal for “it violates the constitution.

CONSTITUTION LAW, INTERNATIONAL LAW

Video: Scholar Exchange: Foundations of American Democracy (Middle School Level)

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ADMINISTRATION LAW, CONSTITUTION LAW, News Post

The implementation of the concept in our country, in our country,

The implementation of the concept in our country, in our country,

Before discussing the jurisdiction of the courts in our country, it is necessary to first make a few points on the content and implementation of the concept. In order to have a clear picture of the place, current situation and future directions of our country’s legal and constitutional system, we must begin by giving a national definition of the concept. What is an Inquiry? Except in the United Kingdom, the United States, France, or any other country, the answer is no. This results from two things. the first; Administrative law is a reflection of a country’s public administration, political and constitutional system and history more than other domestic laws. As a result, the principles and concepts of the Inquisition and other administrative laws differ significantly from country to country.

The second point that accompanies this idea is that any interpretation presented to an inquiry judge provides a partial answer to the basic themes of the concept and its application. Therefore, if we try to copy the divorce from England or France and apply it in our country on loan or in the name of experience, it will be ‘cow dung’. There is no clear picture of the nature and performance of the Inquisition in Ethiopia, and there are only a handful of cases that have been presented to the courts. This caused the concept to be inconsistent.

If we start from the beginning, the question is, is there an inquisitive judiciary in Ethiopia? There is no definite answer to this question. If given, it will not be valid. It is possible to unravel the complexity of the question, break it down into sub-questions, and come up with a concise conclusion. In this way, its existence is based on fact. Here are some questions to be answered. Do our courts have jurisdiction to review and correct the actions of the administration? If so, what is the legal and constitutional basis for their authority? What are the issues that can be considered by the Inquiry? In other words, what administrative functions can the courts investigate? What grounds of judicial review can administrative actions be considered in court? When a client asks for an appeal to be heard by an investigator, what is the procedure that goes from questioning to ‘hearing and decision making’? What decisions can the courts make when an appeal is made to an inquiry? That is, what can the party who has been harmed by the administrative action find in the court? If there is an inquiry in Ethiopia, all the above questions need to be answered. Sometimes there are answers to some questions, but for others it is difficult to find answers. The final conclusion in answering these questions is that judicial activism, even if it is not judicial activism, requires courage to be fully implemented in Ethiopia. Judges, on the one hand, must stand up for the rights and freedoms of individuals and, on the other hand, refrain from interfering in the work of the executive. Although the concept and scope of the Inquisition in general, and its structure in Ethiopia in particular, will be explored in subsequent chapters, one key and fundamental point should always be kept in mind.

Namely: Administrative law in Ethiopia is not yet independent of the constitution and civil law. The legitimacy of the administration’s actions is not determined by an independent administrative law or a judicial inquiry system. There is no separate administrative justice system (civil and criminal justice system) that holds the administration accountable for its actions, except for a limited number of cases that the legislature allows to appeal.

ADMINISTRATION LAW, የኢፌዴሪ ህገመንግስት, CONSTITUTION LAW

የአስተዳደር ውሳኔ ምንድነው?

አስተዳደራዊ ውሳኔ ምንድነው?

‘አስተዳደራዊ ውሳኔ’ በአስተዳር ህግ ውስጥ ከቃል አጠቃቀም፣ ከይዘትና ከወሰን አንጻር ቁርጥ ያለ መደብ ከሌላቸው ፅንሰ ሀሳቦች መካከል ጎልቶ ይወጣል፡፡ ውስብስብነቱ ከፅንሰ ሀሳቡ ወካይ ስያሜ ይጀምራል፡፡ ‘አስተዳደራዊ ውሳኔ’ በሚል እዚህ ላይ መጠቀሱም በአገራችን የአስተዳደር ህግ ውስጥ መደበኛ መጠሪያው ቢሆን ይበጃል በሚል ብቻ ነው፡፡ ጀርመኖች እንኳን የራሳቸውን ወካይ ቃል መፍጠር ተስኗቸው አሁን ላይ በአስተዳደር ህጋቸው ዐቢይ ስፍራ ይዞ የሚገኘውን ‘Administrative act’ (Verwaltungsakt) በሚል የሚጠሩትን ፅንሰ ሀሳብ ለማዳበር ከፈረንሳዮች acte administrative ለመዋስ ተገደዋል፡፡

‘Administrative act’ (Verwaltungsakt) is a core concept of the German administrative law. It covers most of the actions of the administrative authorities through which they affect the legal interests of an individual. The origin of this concept is traced from the French concept of acte administratif from which it was borrowed by the German jurists and developed into a German concept since 1826 onwards.a

በእንግሊዝኛው ፍቺ ከወሰድነው Administrative Decision በይዘቱ Administrative Act ውስጥ የሚጠቃለል ሲሆን ዘርፈ ብዙ መልክ ካላቸው አስተዳደራዊ ተግባራት መካከል አንድ ነጠላ ተግባርን ብቻ ይወክላል፡፡ ሆኖም ለአገራችን የአስተዳደር ህግ ‘አስተዳደራዊ ተግባር’ ወይም ‘አስተዳደራዊ ድርጊት’ የሚለውን ቃል ብንጠቀም ገላጭነቱ አይጎላም፡፡ ከዚህ በተጨማሪ አስተዳደራዊ ድንጋጌ ማውጣት እንዲሁም ምርመራ፣ ቁጥጥርና ክትትል ሁሉም የአስተዳደር ተግባራት እንደመሆናቸው ዳኝነታዊ ባህርይ ያላቸውን ተግባራት ለይቶ ለማመልከት ውስን ይዘት ያለውን ቃል መጠቀም ያስፈልጋል፡፡ ከዚህ አንጻር በዚህ መጽሐፍ ውስጥ ‘የአስተዳደር ውሳኔ’ ወይም ‘አስተዳደራዊ’ ውሳኔ የሚለው ቃል ዳኝነታዊ ባህርይ ያላቸውን ተግባራት ለመግለጽ ጥቅም ላይ ውሏል፡፡ ሆኖም በመደበኛ ትርጓሜው አደናጋሪ መልዕክት ስለሚፈጥር ይዘቱንና ፍቺውን በቅድሚያ መወሰን ያስፈልጋል፡፡

እ.ኤ.አ. በ1976 ዓ.ም. በወጣው የጀርመን የአስተዳደር ስነ ስርዓት ህግ የአስተዳደር ተግባር (Administrative act) የሚከተለው ፍቺ ተሰጥቶታል፡፡

Administrative act is every order, decision or other sovereign measure taken by an authority for the regulation of a particular case in the sphere of public law and directed at immediate external legal consequences.b

ወደ አማርኛ ስንመልሰው፤

የአስተዳደር ተግባር ማለት ቅርብና ውጫዊ የህግ ውጤት የሚያስከትል በህዝብ አስተዳደር ህግ ማዕቀፍ ውስጥ አንድን ልዩ ሁኔታ ለመቆጣጠር ሲባል ስልጣን ያለው አካል የሚሰጠው ትዕዛዝ፣ ውሳኔ ወይም ሌላ ማናቸውም ሌላ ሉዓላዊ እርምጃ ነው፡፡

በትርጓሜው ውስጥ ተጨማሪ ሰፊ ማብራሪያ የሚሹ ንዑስ ሀሳቦች ታጭቀዋል፡፡ ሆኖም በአጭሩ ለማስቀመጥ ያህል በጀርመን የአስተዳደር ህግ የአስተዳደር ተግባር ማለት ህግ ለማስፈጸምና የአስተዳደር ስራ ለማከናወን ስልጣን የተሰጣቸው ተቋማት ይህን ህዝባዊ ስልጣናቸውን (public functions) በመገልገል የሚሰጡትን ትዕዛዝ፣ ውሳኔ ወይም ማናቸውም በማድረግ፣ ባለማድረግ የሚገለጽ እርምጃ ሁሉ ያጠቃልላል፡፡ ይህም ማለት በውል ወይም ከውል ውጪ ኃላፊነት ህጎች ስር የሚሸፈኑ ግላዊ ድርጊቶች፣ ውሳኔዎች፣ እርምጃዎች ወዘተ…በአስተዳደር ተግባር ስር አይሸፈኑም፡፡

በትርጓሜው ላይ ‘ልዩ ሁኔታ ለመቆጣጠር’ ሲባል ተግባሩ ህጋዊ ውጤት እንደሚያስከትል ወሰኑም በአንድ ልዩ ሁኔታ ላይ ያነጣጠረ እንጂ ጠቅላላ ተፈጻሚነት እንደሌለው ያመለክታል፡፡ ስለሆነም የበታች ሠራተኛ ለበላይ ኃላፊ የሚያቀርበው የውሳኔ ሀሳብ፣ ሪፖርት ወይም የምርመራ ውጤት ራሱን ችሎ ህጋዊ ውጤት የማይከተለው በመሆኑ እንደ አስተዳደራዊ ተግባር አይቆጠርም፡፡ በአንድ ዘርፍ በተሰማሩ ነጋዴዎች ላይ የተወሰደ እርምጃ (ለምሳሌ ስጋ ሻጮች ማሟላት ያለባቸው የጥራት ደረጃ) ከላይ በተቀመጠው ትርጓሜ ውስጥ አይወድቅም፡፡ ምክንያቱም ተፈጻሚነቱ ሁሉንም የዘርፍ ነጋዴዎች ስለሚያቅፍ ጠቅላላነት ይታይበታል፡፡ በመጨረሻም ህጋዊ ውጤቱ በአስተዳደሩ ውስጣዊ መዋቅር ተወስኖ የሚቀር (ለምሳሌ በአንድ ነጋዴ ላይ እርምጃ እንዲወሰድ የበላይ ኃላፊው ለበታች ሠራተኛ የሚያስተላልፈው ማሳሰቢያ) ከሆነ በአስተዳደራዊ ተግባር ውስጥ አይመደብም፡፡

የአሜሪካው የፌደራል አስተዳር ስነ ስርዓት ህግ ተፈጻሚነቱ አስተዳደራዊ ድንጋጌ የማውጣት (rule making) እና አስተዳደራዊ ዳኝነት (adjudication) የመስጠት ሂደቶች ላይ ነው፡፡ በህጉ ላይ በተሰጠው ፍቺ አስተዳደራዊ ዳኝነት ማለት በውጤቱ ‘ትዕዛዝ’ የሚያቋቁም የአስተዳደር ሂደት (agency process for the formulation of an order) ነው፡፡ ትዕዛዝ የሚለው ቃል በአስተዳደር ስነ ስርዓት ህጉ ላይ ፍቺ የተሰጠው ሲሆን ይዘቱ እንደሚከተለው ይነበባል፡፡

order means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.c

‘ትዕዛዝ’ ከጀርመኑ ‘የአስተዳደር ተግባር’ ጋር ሲነጻጸር መሰረታዊ ልዩነት አይታይበትም፡፡ ጉዳዩን የሚቋጭ የመጨረሻ መሆኑ ህጋዊ ውጤት እንደሚከተለው ይጠቁመናል፡፡ በይዘቱ አንድ ድርጊት እንዳይፈጸም፣ እንዲፈጸም ወይም የአንድ ሁኔታ (መብት) መኖር/አለመኖር የሚያረጋግጥ መግለጫ ወይም ከአስተዳደራዊ ድንጋጌ ማውጣት ውጪ ያለ ማንኛውም የመጨረሻ እልባት የሚሰጥ ነው፡፡

በመቀጠል የአገራችን የፌደራል ረቂቅ የአስተዳደር ስነ ስርዓት ህግ (1993) የተጠቀመውን ቃል እና አፈታቱን እናያለን፡፡ በረቂቅ አዋጁ የትርጓሜ ክፍል አንቀጽ 2 /2/ እንደተመለከተው አስተዳደራዊ ውሳኔ ማለት፤

ማናቸውም አስተዳደራዊ ባህርይ ያለውን ተግባር ወይም ነገር ከመፈጸም ጋር የተያያዘ ውሳኔ ወይም ውሳኔ አለመስጠትን ጨምሮ ቅጣትን ለመጣል፣ ወይም መፍትሔ ለመስጠት ወይም የመከላከል ዓላማ ወይም ውጤት ያለው በአስተዳደር ተቋማት የሚሰጥ ማናቸውም ውሳኔ፣ ትዕዛዝ ወይም ብይን [ነው፡፡]

የትርጓሜውን ይዘት ይበልጥ ለመረዳት የእንግሊዝኛውን ቅጂ መመልከቱ ጠቃሚ ነው፡፡

Administrative Decision means any decision, order or award of an agency having as its object or effect the imposition of a sanction or the grant or refusal of relief, including a decision relating to doing or refusing to do any other act or thing of an administrative nature, or failure to take a decision

በቀጣይ በ2001 ዓ.ም. በተዘጋጀው ረቂቅ የአስተዳደር ስነ ስርዓት ህግ አዋጅ አርቃቂዎቹ የተለየ አገላለጽ መጠቀም መርጠዋል፡፡ በረቂቁ አንቀጽ 2/2/ ላይ አስተዳደራዊ ውሳኔ እንደሚከተለው ተተርጉሟል፡፡

አስተዳደራዊ ውሳኔ ማለት ተጨባጭ ሕጋዊ ግንኙነቶችን ለመመስረት፣ ለማሻሻል፣ በምርመራ ለማረጋገጥ ወይም የተሟላ ለማድረግ ለአንድ ጉዳይ የተወሰነ መፍትሔ የመስጠት ዓላማ ያለውና በግለሰብ ወይም በተወሰኑ ሰዎች ላይ ተፈጻሚነት ያለው በተቋሙ የሚሰጥ ሕጋዊ ውሳኔ ሲሆን፣ አስተዳደራዊ ባህርይ ባለው ተግባር ወይም ጉዳይ ላይ ውሳኔ አለመስጠትንም ይጨምራል፡፡

በሁለቱም ረቂቆች ላይ የሚታየው ገላጭነት የጎደለው የቋንቋ አጠቃቀም አብዛኛው ሰው በቀላሉ አይረዳውም፡፡ ከዚህም አልፎ የህግ ባለሞያዎች፣ ዳኞች እና አስተዳዳሪዎች በጋራ የሚያግባባ አገላለጽ አልያዘም፡፡ ለምሳሌ በተለምዶ ሰርኩላር በሚል ስያሜ ጠቅላላ ተፈጻሚነት ኖሯቸው የሚተላፉ ትዕዛዞች የአስተዳደራዊ ውሳኔና የአስተዳደራዊ ድንጋጌ ከፊል ባህርያት ይጋራሉ፡፡ ሆኖም በአንደኛው ስር ለመፈረጅ ሁለቱም ትርጓሜዎች ግልጽ መለያ መስፈርት አላካተቱም፡፡ ለአስተዳደራዊ ውሳኔ ትርጓሜ ለማበጀት ጥሩ መነሻ የሚሆነው የፍርድ ቤት ውሳኔ ነው፡፡ ሁለቱን የሚያመሳስላቸው ብዙ ነጥቦች አሉ፡፡ አስተዳደራዊ ሆነ የፍርድ ቤት ውሳኔ ሁለቱም ምንጫቸው ዳኝነታዊ ስልጣን ነው፡፡ በዳኝነት ፍሬ ነገሩን የማረጋገጥና በተረጋገጠው ፍሬ ነገር ላይ ህጉን ተፈጻሚ የማድረግ ተግባራት ይከናወናሉ፡፡ ዓላማው አከራካሪ የሆነ አንድ ተለይቶ የታወቀ ጉዳይ (particular case) መቋጨት ነው፡፡ ጉዳዩን በመቋጨት የሚነገረው ትዕዛዝ፣ ብይን ወይም ውሳኔ በባለጉዳዮች ወይም ሶስተኛ ወገኖች ላይ ህጋዊ ውጤት ያስከትላል፡፡ እነዚህ ወሳኝ ባህርያት በጀርመኑ እና የአሜሪካው የአስተዳደር ህጎች ላይ በግልጽ ተለይተዋል፡፡

በአንድ የአስተዳደር መ/ቤት የተፈጸመ ተግባር የአስተዳደር ውሳኔ ነው ወይስ አይደለም? የሚለው ጥያቄ በአስተዳደር ህግ ውስጥ መሰረታዊ ከሚባሉት ውስጥ አንዱ ነው፡፡ ጥያቄው ተቋሙ ካሉት ጠቅላላ የማስተዳደር (ህግ ማስፈጸም)፣ ከፊል የህግ አውጭነት እና ከፊል የዳኝነት ስልጣናት መካከል የትኛውን እየተገለገለ እንደሆነ የሚለይበት ነው፡፡ የጥያቄው ሌላ መልክ ሲታይ ተቋሙ የፈጸመው ተግባር በባህርዩ ዳኝነታዊ ነው ወይስ አይደለም? የሚለውን ጥያቄ ይመልሳል፡፡ የውሳኔ ሰጭውን የስልጣን እና የተግባር ዓይነት መለየት በህጉ የአፈጻጸም ወሰን ላይ የራሱ ጉልህ እንደምታዎች አሉት፡፡ ጠቅለል ባለ አነጋገር የአስተዳደር መ/ቤቶች ዳኝነታዊ ወይም የህግ አውጭነት ስልጣናቸውን በሚገለገሉበት ጊዜ ካልሆነ በስተቀር ሙሉ በሙሉ በአስተዳደር ስልጣን ውስጥ የሚወድቁት ድርጊቶች በመደበኛ ፍ/ቤቶች ቁጥጥር ሊደረግባቸው አይችልም፡፡ በሌላ አነጋገር አስተዳደራዊ ውሳኔ ወይም ድንጋጌ ባልሆነ ጉዳይ ላይ የአጣሪ ዳኝነት ስልጣን አይኖራቸውም፡፡ የአስተዳደር መ/ቤቶች ዳኝነታዊ ስልጣናቸውን ተጠቅመው አስተዳደራዊ ውሳኔ ሲሰጡ መሰረታዊ የውሳኔ አሰጣጥ መርሆዎች ተፈጻሚ መሆን ይጀምራሉ፡፡

ETHIOPIAN NEWS, News Politics, POLITICS

“ኢትዮጵያን የሚያድነው ለውጥ የትኛው ነው ?” “What change will save Ethiopia?”

የኢፌዴሪ ህገመንግስት, CONSTITUTION LAW, News Post

ባህርያትና የስልጣን ምንጭ፣