Introduction
Criminal reinstatement (simply reinstatement) also known as “Expungement” or “Expunction” in the common law legal system is a legal process that allows individuals with criminal records to have their convictions removed from public records. This means that the records are destroyed; making them inaccessible to organizations that may conduct background checks. Reinstatement is a concept included in our criminal code and criminal procedure code, but the law and its details are hardly known in our society. As a result, it is not widely used. This paper explores the concept of reinstatement, its difference from pardon, the eligibility criteria, the process involved, its relevance in helping individuals reestablish their lives following a conviction, and the impact it has on individuals and society as a whole. It also highlights the gaps in the current practice of criminal reinstatement and concludes with recommendations for improvements.
Setting the Context: Explaining the Concept of Criminal Reinstatement
For individuals who have faced the consequences of a criminal conviction, moving forward can often be a challenging process filled with diverse obstacles. The stigma associated with a criminal record can severely restrict employment opportunities, and limit personal relationships. Criminal reinstatement serves as a valuable tool for individuals seeking to overcome such barriers and regain control of their lives.
Black’s law dictionary defines reinstatement as “To place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed.” Those who have served their prison term by fulfilling requirements can be reinstated to their previous position.
Reinstatement removes criminal records, allowing individuals to legally deny or not disclose their past crimes in certain circumstances. The objective is to allow individuals to move beyond their past mistakes and overcome the barriers associated with a criminal record.
Clearing the Record: Exploring the Differences between Reinstatement and Pardon
Clearing one's criminal record can be a pivotal step towards rebuilding a person's life, enabling them to move forward without the burden of a past conviction. Two common legal mechanisms used for this purpose are reinstatement and pardon. While both reinstatement and pardon aim to provide individuals with a fresh start, they differ significantly in terms of the body bestowed with the power to grant, effect, scope, and eligibility criteria’s to mention some.
The power to grant pardons is outlined in both the FDRE constitution and the FDRE Procedure of Granting and Executing Pardon Proclamation No. 840/2014. According to Article 71(7) of the FDRE constitution and Article 5 of the aforementioned proclamation, the President holds the constitutional power to grant pardons at the federal level, while the chief executive of a State is responsible for granting pardons at the State level, as stated in their respective regional constitutions and regional pardon granting proclamations. Additionally, according to Black's Law Dictionary, a pardon is defined as the official cancellation of punishment or legal consequences by the executive branch. On the other hand, the decision to reinstate is typically made by a judge, as explicitly stated in Article 218 and 219 of the criminal procedure code.
Regarding the difference on the base of their effect, reinstatement as vividly stated under article 232 (1) of the criminal code refers to the legal process of cancellation of a criminal conviction. Its goal is to treat the conviction as if it never occurred, providing individuals with the opportunity to honestly answer "no" when asked if they have ever been convicted of a crime. On the other hand, a pardon is an act of official forgiveness granted by the executive branch of the government. It is a declaration that the person convicted of a crime is fully absolved of all legal penalties and the conviction remains as a part of their criminal record according to article 229(2) of the criminal code.
Regarding the scope reinstatement generally applies to all kind of crimes. The only requirement for reinstatement is fulfillment of the eligibility requirement and completion of the waiting period. This period can vary depending on the nature and type of penalty and can be two or five years.
Pardons, on the other hand, cannot be granted for international crimes as stated under article 28 of FDRE constitution. However, the president has the power to commute death penalty to life imprisonment as stated under article 28(2) of the constitution. In addition to this in some regional pardon granting proclamation there are list of case which are non-pardonable. For instance as clearly stated under article 3 of the former SNNPRS procedure of pardon Granting Regulation no. 141/2015, Rape, abduction, homosexual, a prisoner who committed aggravated robbery crime punished above 5 years, Aggravated homicide, all corruption, sentenced by human trafficking, forgery or use forged instruments, Crimes against revenue or financial benefits of the region or crimes on public infrastructures and a person who granted pardon found convicted on another crime, a prisoner against whom prosecutor filed an appeal or cassation complaint, a prisoner who has been attempted to escape or escaped from prisoner administration or punished on grave disciplinary infringement in principle, have been identified as non-pardonable crimes.
Eligibility for reinstatement typically depends on various factors such as the nature of the crimes, the time passed since the conviction, completion of the sentence, and the individual's criminal history. Pardons are usually granted on a case-by-case basis, considering factors such as the severity of the crimes, the person's behavior since the conviction, and the impact on their rehabilitation or reintegration into society.
Eligible criteria or Conditions for reinstatement
Eligibility for criminal reinstatement is usually determined by various factors such as the nature and severity of the crime, the time that has passed since the conviction, and the individual's criminal history.
As clearly stated under Article 232(1) of the criminal code criminal reinstatement is not automatically granted as of right. It is typically a discretionary decision made by a judge based on various factors such as the nature of the crime, the individual's criminal history, rehabilitation efforts, and other requirements.
In this regarding article 232 (1) of the criminal code clearly states that a convict who has undergone his penalty or whose penalty is barred by limitation or has been remitted by pardon or whose penalty has been suspended on probation or who has been released conditionally may, at his request, obtain his reinstatement and the cancellation of his conviction if he fulfills the conditions listed under article 233 of the criminal code. One thing worth mentioning at this juncture is if the convicted person is incapable of acting by himself or has dead the application can be made by his legal representative or a next-of-kin.
As clearly stated under article 234 (1) of the criminal code reinstatement cannot be ordered until the earliest time when the penalty would have ended if it had been completed when the sentence was enforced, in cases where the penalty is prevented by a time limitation.
Article 233 of the criminal code outlines the eligibility criteria that a convicted person must meet. The first condition is time period: There is often a waiting period before an individual becomes eligible for reinstatement. This time period can vary depending on the nature of the sentence and could be two or five years depending on the type of penalty. In case of serious crimes request for reinstatement requires the passage of at least five years. Accordingly in case of sentence of rigorous imprisonment, permanent expulsion, or general confiscation of property, or since being released due to a pardon or conditional release application for reinstatement cannot be requested before five years. Additionally, the convict must have successfully completed any probationary period if their penalty was suspended. For other penalties, a minimum period of two years is required.
However, there is an exception on waiting period as outlined in article 234 (2) of the criminal code. This exception applies when the applicant has performed a notably praiseworthy act in the civil, military, or social domains, justifying an earlier reinstatement before the usual time period expires.
In addition to the time served, the convicted person must also have fulfilled any secondary penalties that were imposed upon them. This could involve paying compensation, damages, and costs as ordered by the judgment. It's important to note that the extent to which these payments can be reasonably expected will depend on the individual's circumstances.
Furthermore, during the specified period mentioned earlier, the convicted person must have demonstrated good behavior and have not been convicted of another crime that carries a prison sentence. This requirement ensures that they have genuinely reformed and not engaged in further criminal behavior.
It is worth mentioning that the minimum period for the reinstatement conditions outlined in the first circumstance will only apply if it does not conflict with the period regarding recidivism, as stated in Article 67 of the criminal code.
Precautionary measures specifically designed for minors are further elaborated upon in the context of reinstatement. As per article 53 of the Criminal Code and article 3 of the Criminal Procedure Code, a minor is defined as an individual aged between nine and fifteen. According to Article 157 et seq., corrective measures taken on children falling within this age bracket differ from the penalties applicable to adult offenders due to their minor status.
Corrective measures for minors encompass various options, such as sending them to a medical facility, providing supervision and education, reprimanding them, confining them to either their school or home, assigning them to a correctional facility, and in severe cases of crime, even involving imprisonment. Article 175 states that precautionary measures and alternative punishments, aside from incarceration, can be implemented within two years from the time of sentencing. Upon reinstatement, the underage child can either undertake the process independently or be assisted by individuals possessing legal authority over them.
Navigating the Legal Process for reinstatement
According to Article 218 of the criminal procedure code the reinstatement process begins by filing a petition by the convicted person or his legal representative for reinstatement to the court having passed the sentence the cancellation of which is sought.
The application shall be in writing and shall give reasons. The application shall be accompanied by necessary documents to enable the court to ascertain whether the conditions laid down in the criminal code are fulfilled or not.
As per article 219, of the criminal procedure code the application for reinstatement 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. Where the application is allowed, the provisions of article 235 of the criminal 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. Where the Court dismisses the request for reinstatement as unjustified it cannot be renewed before a period of two years has elapsed as per article 236 of the criminal code. The decision of the court shall be read out in open court, and shall be published in a newspaper. No appeal shall lie from the decision of the court.
Consequences of reinstatement
Consequences of reinstatement are provided under article 335 of the Criminal Code. As per this article, the convicted person is relieved, for the future, of any forfeitures of rights or privileges, incapacities and disqualifications and recovers the capacity to exercise his civil, family and professional rights; Furthermore, the sentence will be removed from public record and considered non-existent going forward. It is also worth noting that any defamation against the reinstated person regarding their past crime will be punished. Article 235 (3) of the criminal code explicitly states that any criticism related to a previous conviction made out of ill-will or for any other reason will be subject to defamation laws, and defenses based on justification or public interest will not be accepted.
Revoking a reinstatement Decision
The revocation of reinstatement decision refers to the process of cancelling or rescinding a previous decision to reinstate a criminal record. Criminal reinstatement is the legal process of sealing or destroying a person's criminal records, making them inaccessible or non-existent. It is typically done to give individuals a fresh start and remove the stigma associated with a criminal record.
In some cases, a previously granted reinstatement decision may be revoked due to certain circumstances. The revocation process may vary some possible reasons for revoking reinstatement decision includes
Commission of New crimes, according to article 237 of the criminal code reinstatement shall be revoked and may no longer be granted when subsequently, within a period of five years, a fresh sentence to capital punishment or rigorous imprisonment has been imposed upon the reinstated person by a judgment which is final. According to Article 108 of the Criminal Code rigorous penalty is imposed on criminals deemed dangerous to society and rigorous punishment ranges from one year to twenty-five years. This is because the purpose of reinstatement is to provide a clean slate for individuals who have met certain criteria, such as completing rehabilitation programs or maintaining a crime-free period.
False information or omissions can be ground for revocation of reinstatement decision. If false or misleading information was provided during the reinstatement process, it can lead to revocation of reinstatement decision. One of the eligibility requirements for reinstatement is remittance of conviction by pardon. As vividly stated under article 23 of FDRE Procedure of Granting and Executing pardon Proclamation No. 840/2014, if pardon is granted on the basis of false or fraudulent evidence the pardon granted will be nullified or will become void. Thus, if the person is reinstated on the base of pardon granted on false or fraudulent evidence then reinstatement decision can be revoked. Similarly, if essential information was omitted or undisclosed, such as previous criminal convictions, it may also result in the revocation of reinstatement decision.
Criminal Reinstatement: A Rarely Utilized Concept
Criminal reinstatement is rarely utilized in Ethiopia; the main reason is absence of a digitized criminal recording system. The absence of a digitalized crime recording system may make it more difficult to trace and access criminal records, potentially leading some criminals to believe that their records cannot be easily found or used against them. This could result in some individuals not seeking reinstatement, as they may expect their records to go unnoticed or remain hidden.
Another reason why criminal reinstatement is not widely used is the perception that it yields minimal significant impact. Criminal reinstatement is typically sought to provide individuals with a fresh start, remove barriers related to employment, other opportunities, and facilitate their successful reintegration into society. However, since many employers and job applications still inquire about an applicant's criminal background, but without the support of a digitalized crime record system, these questions have become ineffective. As a result, individuals with criminal records are hesitant to seek reinstatement.
Further lack of awareness is also the other possible reason why individuals may not use reinstatement. Many people may be unaware of the existence or benefits of reinstatement, especially if they have limited access to information or legal resources. They may not be aware that they are eligible or may not know how to navigate the legal process involved.
Conclusion
Criminal reinstatement is a rarely utilized concept, primarily due to the absence of a digitized criminal recording system and the perception that it has limited impact. By implementing digitized systems, increasing public awareness, simplifying the process, and assessing the impact of revocation, it is possible to improve the utilization and effectiveness of this concept.
Recommendations
1. Digitize Criminal Recording Systems
To promote the utilization of the concept of reinstatement, implementing fully digitized criminal recording systems is imperative. Digital records can offer increased accuracy, accessibility, and ease of retrieval, eliminating the barriers linked to paper-based systems. This enhancement would pave the way for efficient revocations and reinstatements if necessary.
2. Public Awareness and Streamlining of the Process
Efforts should be made to increase public awareness regarding the concept of reinstatement. Education campaigns, involving legal professionals, community organizations, and online resources, can help individuals understand what reinstatement entails and when it may be necessary.
3. Assessing the Impact
Further research should be conducted to assess the true impact of reinstatement. Evaluating the experiences of individuals who have undergone reinstatement would shed light on the significance of this concept and how it can be improved.