ፎረንሲክ ፖቶሎጂ ወይም የአስክሬን ምርመራ የአንድን ሰው አሟሟት በአጋጣሚ፣ ራስን ማጥፋት፣ በተፈጥሮ ወይም በሰው እጅ የሞተ መሆኑን የሚገልጽ የፎረንሲክ ሳይንስ ጥበብ ነው፡፡ ፎረንሲክ ሳይንስ የተጀመረው ከክርስቶስ ልደት በፊት በ44ኛ ዓመት ዓለም ነበር፡፡ በወቅቱም ትልቅ ስምና ዝና የነበራቸውን የንጉሳውያን ቤተሰቦች አሟሟት ለማጣራት ነበር የተጀመረው፡፡ የፎረንሲክ ፓቶሎጂ መጀመርና በብዙ ሰዎች መለመድ በመቻሉ ለጂዲ ኤን.ኤ እውቅናና አሁን ለደረሰበት ደረጃ ከፍተኛ አስተዋጽኦ እንዳለው የዘርፉ ባለሞያዎች እየገለፁ ይገኛሉ፡፡

የመጀመሪያው የአስክሬን ምርመራን የሚያትት መጽሀፍ በ1247 ሶንግቺ በተባለ ፀሀፊ ተጽፏል፡፡ በዚህም የፎረንሲክ ህክምና ሳይንስ አባት ለመባል በቅቷል አምስት ህትመቶቹን (በዚያንጅሉ) xiyanjilu, ርዕሶች ለንባብ አብቅቷቸዋል፡፡

በአውሮፓ የመጀመሪያው የአስክሬን ምርመራን የሚያትት መጽሀፍ ለንባብ የበቃው በ1507 ባምበርድ ኮድ አፓርድ በሚል ርዕስ የወጣው ነበር፡፡ በዚህም የሞት መንስኤ፣ የግድያ ወንጀሎችና በመርዝ የሚሞቱ ሰዎችን መለየት የተጀመረበት ወቅት ነበር፡፡

የአስክሬን ምርመራ ሳይንስ የህክምና ሳይንስ ዘርፍ ሲሆን በ19ኛው መቶ ክፍለ ዘመን የሞት መንስኤዎችን የሚያረጋግጥ መሳሪያ ለመሆን በቅቶ ነበር፡፡ ይህ የምርመራ ሳይንስ ለመጀመሪያ ጊዜ እውቅና ተሰጥቶት አገልግሎት ላይ የዋለው እ.ኤ.አ 1959 በአሜሪካን ሀገር ነበር፡፡ ከዚህ ዓመት በኋላ በዚሁ ሀገር የሞት መንስኤን ለማጣራት እየተጠቀሙበት ይገኛሉ፡፡ በርካታ የአሟሟት መንስኤዎችም ታውቀው ለህግ የተላኩ ሲሆን በፍርድ ቤቶችም ተቀባይነት በማግኘት የሟቾችን የአሟሟት መንስኤ በማረጋገጥና አጥፊዎች እንዲቀጡ ተደርጓል፡፡

አሁን አሁን በአሜሪካን ሀገር ድንገተኛ ሞትን፣ የተፈጥሮ፣ ያልተጠበቁ እንዲሁም በመርዝ የሚሞቱ ሰዎችን የሚያጠና የህክም ዘርፍ ሲሆን ፅናትን ቆራጥነትንና ፍጹም የሰው ልጆችን የሞት መንስኤዎችን ለማጥናት ፍላጎት ያላቸው ሰዎች ብቻ ሊገቡበት የሚገባ የህክምና ዘዴ መሆኑን ባለሙያዎች ይመክራሉ፡፡

ከቅርብ ጊዜያት በኋላ በአሜሪካን ሀገር የአስክሬን መርማሪዎች ቁጥር ከጊዜ ወደጊዜ በእጅጉ እየቀነሰ የመጣበት ሁኔታ መኖሩን በዚሁ ሀገር የሚገኘው ‘’National Acadamy of science’’ የተባለው ተቋም እየገለፀ ይገኛል፡፡ ይህ ተቋም በ2009 ባወጣው ሪፖርት መሠረት በአሜሪካን ሀገር በሁሉም ግዛቶች ከ500 ያልበለጡ ሙያተኞች ብቻ ይገኛሉ፡፡ ነገር ግን በዓመት ከ500 ሺህ በላይ የሞት መንስኤን እንዲመረምሩ በመደረጉ ከፍተኛ ችግር ውስጥ መግባታቸውን እየተናገሩ ይገኛሉ፡፡ እንደ ብዙ የባለሙያዎች አስተያየት የአስክሬን ምርመራ ባለሙያ እጅግ ሊያንስ የቻለው ከአራት ዓመታት የህክምና ትምህርት በኋላ ለሶስት ዓመት የአጠቃላይ የሰውነት አካል ትምህርት ስለሚሰጥና የሙያ ሰርተፍኬት ለማግኘት የፅሁፍና የተግባር ፈተና መስጠታቸው እንዲሁም በየ10 ዓመት ፍቃዳቸው እንዲታደስ በመደረጉ ሰልጣኞች ወደዚህ ሙያ ሊመጡ እንዳላስቻላቸው ይነገራል፡፡ በተጨማሪም በስልጠና ተቋም የሚገኙ መሳሪያዎች ተመጣጣኝ አለመሆናቸው፣ ወደዚህ ሙያ እንዲገቡ የሚያማልሉ ነገሮች አለመኖራቸውና የክፍያ ማነስ ባጠቃለይ ለአስክሬን ምርመራ ሙያ አዳጋች ሁኔታን መፍጠሩን በሙያው ለ40 ዓመታት ያገለገሉት ዶ/ር ቪሴን ዲማሪዬና ሳን አንቶኒዮ ይናገራሉ፡፡

በተፈጥሮ የአስክሬን ምርመራ ባለሙያ በማህበረሰቡ የሚገለል፣ በቤተሰቡ ላይ ሀዘን የሚፈጥርና ሁልጊዜ ከሞቱ ሰዎች ጋር የሚያገናኝ ሙያ በመሆኑ የራሱ የሆነ ተጽእኖ በባለሙያው ላይ መፍጠሩ አይቀርም ነገር ግን ክቡር የሆነውን የሰው አካል በምን ምክንያት እንደሞተና ለፍትህ አካል የሚያቀርብ በመሆኑና አጥፊዎችን የሚያስቀጣ በመሆኑ ሊወደድና ከፍተኛ ክብር ሊሰጠው የሚገባ ሙያ ሊሆን ይገባዋል፡፡

በአገራችን የአስክሬን ምርመራ ከተጀመረ ጥቂት ዓስርት ዓመታትን ብቻ አሳልፏል፡፡ እስከ ቅርብ ዓመት ድረስ ይህ አገልግሎት የሚሰጠው በዳግማዊ ምኒሊክ ሆስፒታል ብቻ ነበር፡፡ ያውም በሁለት የአስክሬን ምርመራ ባለሙያዎችና በአንዲት ኩባዊት ባለሙያ ከየሀገሪቱ ክልል መንገድ ላይ የሞቱ፣ በአደጋ፣ በሰው እጅ የተገደሉ ሰዎች ወደዚሁ ሆስፒታል ለምርመራ ይላካሉ፡፡ በዚህም በከፍተኛ ጫና ውስጥ እየሰሩ እንዳሉ መገንዘብ አያዳግትም፡፡

የአስክሬን ምርመራ ውጤት ለፍርድ ሂደት እጅግ ከፍተኛ ድጋፍ እንደሚሰጥ አያጠያይቅም በአንፃሩ ደግሞ የተዛባ ውጤት በፍርድ ሂደቱ ላይ ጫና እንደሚያሳድር ይታወቃል ስለዚህ በአገራችን በርካታ ባለሙያዎችን በበቂ ሁኔታ ማሰልጠን እንዲሁም የአስክሬን ምርመራ ሆስፒታሎችን ቁጥር በከፍተኛ ሁኔታ መጨመር ያስፈልጋል፡፡ በቅርቡ የመቀሌ ዩኒቨርስቲ ከመቀሌ ሆስፒታል ጋር በመተባበር የአስክሬን ምርመራ እንደጀመሩ ይታወቃል፤ ሌሎች ክልሎችም በአካባቢያቸው ካሉ የኒቨርስቲዎች ጋር በመተባበር ሙያተኞችን በማሰልጠን አገልግሎቱን መጀመር ይገባቸዋል፡፡ የፌደራል ፖሊስ ሪፈራል ሆስፒታልም ይህን አገልግሎት ለመጀመር እቅድ እንዳለው የተገለፀ ሲሆን አገልግሎቱን ሲጀምር በዳግማዊ ምኒሊክ ሆስፒታል ላይ ያለውን ጫና ይቀንሳል ተብሎ ይጠበቃል፡፡

የአስክሬን ምርመራ ውጤት ለህግ አካላት የሟቹን የሞት መንስኤ በአደጋ፣ በሰው እጅ፣ በተፈጥሮ በመርዝ መሆኑን የሚገልጽ የህክምና ዘዴ በመሆኑ በእጅጉ ይጠቅማቸዋል፡፡ ስለዚህ የሚመለከተው አካል በመላ-ሀገሪቱ አንድ የምርመራ ጣቢያ በመክፈትና ባለሙያዎችን በማሰልጠን የፍርድ ስርዓቱን ውጤታማ እንዲሆን ማስቻል ይጠበቅባቸዋል፡፡ (ይህ ጽሑፍ በፖሊስና ርምጃው መጽሔት ለመጀመሪያ ጊዜ መጋቢት 2 ቀን 2006 ዓ.ም ተጽፏል)

According to Art.52 of the Ethiopian Criminal Code, infants are completely exonerated from criminal provisions. The lower limit of penal majority is made nine years under this article. Therefore, the Ethiopian criminal code never applies to children who commit an offence before having completed their ninth year. Whatever offence may be committed by a child who is not yet in his tenth year, he is not criminally liable and may not be subjected to a penalty under the law. He is presumed by law to be doli incapax, and showing that he understands what he is doing and that he would also understand the purposes of penalty cannot rebut the presumption. Furthermore, punishment, which in any event might do more harms than good owing to its psychological consequences, is not a proper objective for one who deals with infants.

The main task is to investigate why the infants do wrong and to bring about a change in the circumstances, which lead him to commit the offence. This is not to say, however, that children may do as they please, but merely that they are not the concern of the criminal law. Instead, they are under the exclusive jurisdiction of their parents or persons exercising parental authorities. If they do wrong, corrective steps may be ordered at home or at school, but not in court. And yet, provisions  of  the Revised Family Code and Arts.576, 659 are designed to ensure that infants do not become delinquents in consequences of their parents failing in their duties.

Classification of Young offenders under the Code:

Immaturity refers to inability to appreciate the nature and consequences of an act due to early age. It includes infancy, young criminal and persons in the transitory age.

Infancy:

Infancy is the period extending from birth to what might be called criminal majority. The age limit that marks the end of infancy varies from one country to another. In our country, infancy ends at the attainment of ninth year (article 52). The infants who have not attained the age of nine years are exonerated from criminal liability.

For example, Hamdi is eight years old. He set fire to a hut in which three persons were asleep. Two persons seriously injured in the fire. The third person died in the fire. Hamdi will not be liable for causing negligent homicide contrary to article 543 of the Criminal Code, nor will he be liable for injuries caused by negligence contrary to article 559 of the Criminal Code.

Young Persons:

Young persons are persons whose age is between nine and fifteen (article 53(1)). Young persons don not enjoy complete immunity from criminal liability. They are considered responsible for their acts.  However, the court may not treat young persons in the same manner as it does adults. The court orders the penalties and measures provided under article 157-168 rather than the punishments provided under the special part of the Criminal Code.

Young persons are criminally liable for two reasons. First, persons begin to understand the nature of their acts, to be able to form a decision and to keep to it between the age of nine and fifteen. During this period, their intelligence and volition develop and become gradually closer to those of adults. Secondly, the commission of a crime shows that the time has come to take action because no action has been taken at home or school or it has failed. Further, it is easy to correct young persons in early age and their separation from their family does not affect them.

The objective of subjecting young persons to any action is to turn juveniles into useful citizens. Therefore, the primary aims of any action taken with respect to young persons are and must be education and correction. The commission of a crime by the young persons implies that there are problems in bringing them up. These problems may arise from different causes that include the parents’ failure to perform their legal duty to bring up their child properly, disunited family, poverty, migration and association of young persons with criminals. Since the causes for criminal behavior of young persons are different, the court should apply different penalties and measures that can correct and educate them.

The court, according to article 54 of the Criminal Code, should require information about the conduct, position and circumstances of the young criminal. The court may obtain this information from persons having close relationship with the young criminal such as parents, representatives of the school, guardianship authorities and institutions. Besides, the court before passing measures or penalties may order the young criminal to be kept under observation in medical or educational center, a home or any other suitable institution.

The court after it has obtained necessary information assesses the penalties and measures by taking into account the age, character degree of mental and moral development of the young criminal, as will as the educational value of the penalties and measures to be applied.  Accordingly, when an adult commits a crime, he/she is liable to the penalties prescribed by law with the respect to this crime. Every crime carries with it a certain punishment the kind and extent of which vary depending on the kind and seriousness of the crime. However, young criminals are liable to only penalties and measures provided for them. Therefore, the court may order appropriate measure against young criminals irrespective of the kind and seriousness of the crime they committed.  In ordering the measure, the court should ascertain that the measure ordered could eliminate the problems of young criminals. In this regard, the work of judges of juvenile criminal is similar to that of the medical doctors.

The court is not bound by its orders and may at any time vary them if this is required in the interest of the young person. This is another point that distinguishes the penalties and measures ordered against young persons from that of the adults. In cases of adult, it is a generally admitted procedural principle that a final judgment may not be revised in the course of its enforcement. This difference is justified, as there is certain amount of experimentation involved in the dealing with young persons. It is unpredictable whether the measure ordered succeeds in reforming the young criminals. Thus, the court’s duties do not end after it has begun judgment. It may order a new measure if it appears that the one that is being enforced does not serve the purpose for which it is ordered.

The measures provided for young criminals under article 158-162 of the Criminal Code are five in number. They are summarized in the following table.

Transitory Age:

The criminal responsibility and guilt of persons between the age of fifteen and eighteen years are determined as though they were an adult, but the punishment that may be ordered is not necessary that which would be ordered if they were adults. As a result, the court has three options. First, it may order any of the penalties applicable to adults and mitigate it according to article 179. However, the mitigation is not compulsory. In such case, the court may not sentence the criminal to death penalty. Secondary, the court may order one of the special penalties applicable to young persons. Finally, the court may order special measures applicable to young criminals based on the conditions laid down under article 177.

Special Provisions Applicable to Young Persons:

Complete immunity from criminal liability is enjoyed only by infants and ceases to operate when they attain their tenth year. Thereafter and until they reach penal majority (i.e., when they attain their sixteenth year), young offenders, known in the Code as “young persons”, are no longer exonerated from criminal provisions, though they may not be treated in the same manner as adults.

Where a young person commits an offence the penalties and measures to be imposed by the court shall be those provided in Book II, Chapter IV of the Criminal Code between Arts. 157-168. The reason that the young persons are subjected to these special provisions is not because they do not deserve the ordinary penalties but because they are not as well suited to their requirements as those special measures and penalties. As compared to measures and penalties prescribed for adults, the court has wider option and allowance for flexibility. Besides these provisions that provide young persons, among other things, protection from being subjected to the ordinary penalties is applicable to adults or being kept in custody with adult offenders. By doing so, the provisions squarely fits with the Constitution of the Federal Democratic Republic of Ethiopia and the UN Convention on the Rights of the Child.

Reasons for Young Persons Criminal Liability

There are two basic reasons that underlie why young persons have to be held criminally liable. First, young persons are assumed to begin to understand the nature of their acts and able to form a decision and keep to it. During this period and therefore, their intelligence and volition develop and become gradually closer to that of an adult. Second, the commission of an offence by them calls action by the society because no action has been taken at home or at school or it has failed. On attaining their tenth year, therefore, minors are no longer a problem to their parents alone; they become the responsibility of the society as well. Thus, the community is entitled to ensure that its younger members are not let to corrupt and perish. Accordingly, the primary aim of any action taken with respect to young persons is and must be education and correction; penalties should be used in the last resort.

Assessment of Sentence  in Case of Young offenders:

Art. 55 provides some guidelines, that the court has to follow in assessing the sentence regarding young offenders. According to Art.55 first aliena, the court in assessing the sentence shall take into account the age, character, and degree of mental and moral development of the young offender as well as the educational value of the measures to be applied. In view of enhancing the capacity of the special measures and penalties prescribed bring the desired result, i.e. reform and rehabilitation; the second aliena of the same provision allowed the court to vary its orders at any time to ensure the best possible treatment. This implies that the court must always take into account the best interest of the young person, a standard adopted by the FDRE Constitution and ICRC.

Measures for the Problem of the Young Criminals

The court may impose penalties on young criminals. These penalties as provided under article 166-168, are of two kinds. These are fine and imprisonment. The court may not sentence a young criminal to fine or imprisonment unless the measures applied under article 158-162 have been applied and failed.

A court may sentence a young criminal to fine when he/she is capable of paying the fine and of realizing the reason for its imposition. Thus, a court may not impose fine on young criminal who has no means of income. The fine should be proportionate to the criminal’s means and gravity of the crime (article 167). Thus, a court may impose different fine on two young criminals who have committed the same crime with the same circumstances if the magnitude of their income differs. The fine may be imposed in addition to imprisonment.

A court should not order the sale of property of the young criminal or  the conversion of fine into labor or compulsory labor. If the failure to pay the fine is deliberate,  the court may convert the fine into home or school arrest.

The court may impose imprisonment on young criminals when they committed a crime punishable with rigorous imprisonment of more than ten years or death penalty (article 168(1)). The young criminals serve the sentence either in corrective institution or penitentiary detention institution. If the court sends the young criminals to penitentiary detention institution, they will not be mixed with prisoners who are sentenced to rigorous imprisonment or special confinement. The court sends young criminal when they are incorrigible or likely to be a cause of trouble, insecurity or corruption to others. Thus, the court sends young criminals to penitentiary detention institution when the measures ordered against them could not reform them. The court shall transfer young criminals from corrective institution to penitentiary detention institution when they are dangerous or when they have attained 18 years and the sentence extends beyond the age of majority.

The period of detention shall extend from one year to ten years (article 168(2)). The enforcement of this period of detention takes place under the regime of simple imprisonment (168(3)). That is, the court should not send young criminals to a prison that is appointed for the purpose of rigorous imprisonment. If young criminals appear to have been reformed, they may be released on probation after they have served two-thirds of the sentence of imprisonment. Thus, a young criminal who is sentenced to six years of imprisonment may be released on probation if he/she serves four years of imprisonment.

Infancy/Immaturity: Art. 52

Suppose a 3-year-old pushes her baby brother down the stairs, and the baby dies. Could we try the 3-year-old for murder? Does the 3-year-old commit the act of killing? Does she have the requisite intent (mens rea)? In fact a 3-year-old does not even know the meaning of life and death. To prevent silly inquires into whether an infant committed a criminal act with the requisite criminal intent almost every jurisdiction set infancy limit below which children are absolutely exempted from being subject of criminal law. This is based on the principle that an infant is incapable of distinguishing between right and wrong and so no criminal responsibility could be fastened in regard to his deeds. Children of such age are granted absolute immunity on the ground that they are doli inapax, that is, incapable of doing a criminal act, because a child under such age group cannot form the necessary intention to commit a crime. This is therefore a legal presumption. In other words it is immaterial whether the nature and quality of the wrong done as it is normally one to be done only by someone with high caliber and experience.

Some jurisdictions have adopted a qualified immunity as well to children whose age is above the infancy limit but below certain age limit. In the case of India, for instance, section 83 provides qualified immunity to a child above seven years of age and below twelve years of age. In other words, if it is     shown that the child has not attained the requisite degree of understanding to judge the nature and consequences of his conduct, he is exempted from criminal liability. In the absence of such proof, a child above seven years of age as much liable for his criminal act as an adult is. The maturity of understanding can be inferred from the nature and quality of the act, subsequent conduct of the doer and allied factors.

However, no absolute rule as regards the age of discretion is found. It differs from country to country. In Malaysia and England, the age of complete immunity is ten years. In India, Canada and some states in Australia it goes down to the age of seven. In Germany, Austria and Norway the minimum age is 14 years; while in Denmark and Sweden, it is 15 years; in Argentina a minor under 16 years and in France below 13 years if age is not punishable. Interestingly in the United States, the age of absolute incapacity varies from state to state ranging between eight to 12 years. Thus, the higher infancy limit a country has, the higher protection would children get and vise versa.

It is also common in many jurisdictions to have different age groups for young offenders with different treatment and punishment prescribed. The problems arising in relation to young offenders are not the same as those, which arise in relation to adults, because there exists between the two classes of offenders a difference in the nature of their intelligence or volition. A minor, even though he may be more intelligent than an adult, is nevertheless not a “miniature man” and he may not be treated as such for his appreciation of the world, is not that of a grown-up person.  This implies that a court dealing with a young offender consider the offence merely as an indication that he requires medical treatment, education or correction. The idea of retribution is almost altogether absent from the provisions applicable to young offenders, as indicated by the fact that the seriousness of the offence committed is not normally taken into account in deciding the offender’s fate. The issue is not to punish a juvenile “according to the degree of individual guilt”, but “to ensure the best possible treatment” and penalties.

This however does not mean that the provisions applicable to juvenile are not of a penal nature. Quite to the contrary, young offenders other than infants are subject to criminal law; yet, as they constitute a special category of wrong-doers (as is emphasized by the fact that, in many countries the law concerning them is enacted separately and not embodied in the penal code, and that they are tried by specialized courts under special rules of procedure), they come under special rules. (Philip Graven, pp. 144-145)

Accordingly, the Criminal Code of Ethiopia deals with infancy (which ends at the age of nine years), adolescence (which extends from nine to fifteen years, this being the limit of penal majority), and an intermediary period extending between penal and civil majority, i.e., between fifteen and eighteen years of age.

The part respectively played by the medical expert and the court in deciding upon the criminal’s responsibility is one of the most controversial issue. In most common law countries, it appears that the jury is allowed to ignore the findings of the medical expert. In the case R v. Bryne, Per Lord Parker argued that the ‘mental responsibility of a person for his acts’ points to a consideration of the extent to which the accused person’s mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts. For him the question is therefore to what extent the abnormality in a particular circumstance substantially impaired the mental responsibility of a person for his acts.

A further argument is that the question of degree of essentially one for the jury. He press go on his argument and says that medical evidence is relevant, but as the question involves a decision not merely as to whether there was some impairment of the mental responsibility of the accused for his acts but whether such impairment can properly called ‘substantial’, the jury may quite legitimately take different position from doctors. The argument goes on and says after all claiming that, there is no scientific measurement of the degree of difficulty, which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble, the court can only approach in a broad, common sense way.

Sub-art.(3) of Art.51 on the other hand seems to put a clear boundary between the roles of the court and the medical expert in determining irresponsibility.  The court therefore may not substitute itself for the expert and adjudicate medical questions, to which he is not qualified to decide. Instead, the provision required the court to be bound to the ‘definite scientific findings’, in the sense that, if the expert states that the accused is a chronic alcoholic or a pyromaniac, it may not ignore this statement in making its decision. If the judge is allowed to disregard scientific findings to which he is not qualified to appreciate, some say he would at once be entitled to convict an irresponsible offender merely because the latter committed, in the judge’s opinion, an atrocious crime demanding punishment.

The same is true with the role of the medical expert. He/she may not substitute himself/herself for the court and adjudicate legal questions, to which he is not qualified to decide. It is, therefore, for the court to draw the “legal inferences” from the expert’s findings, so that if the expert states the accused is not fully responsible and should accordingly sentenced to, say, a punishment reduced by one half, the court is not bound by this statement.