Intoxication-Intentional or Culpable Irresponsibility: Art. 50

 

The problems intoxication poses to the criminal justice system, and to law enforcement in particular, are by no means negligible. Drug addiction and alcoholism remain two of the foremost-unsolved problems confronting the criminal justice system of many countries.  To hold perpetrators responsible for crimes committed under the influence of either may not be a solution, but may have a minimal advantage of making treatment services accessible for them.

 

Alcoholism may constitute a disease provided it has damaged the brain to an extent as to grossly impair the ability to make rational judgment and emotional responses. On the other hand, though the taking of alcohol inevitably impairs judgment and the ability to control the emotion, its transient effect cannot be accounted as a “disease”. Therefore, the question lies as to under which of the two conditions one is exempted of criminal liability. Further, a person is deemed voluntarily intoxicated when he takes an intoxicant including alcohol, drugs or any other thing being aware that it is or may be an intoxicant and he takes it in such quantity as impairs his awareness or understanding. Or a person may be involuntarily intoxicated say, for the purpose of medication or being under coercion. The question that repeats itself here is that under which one of the conditions the doer can claim exemption from criminal liability?  Alcoholism, whenever it constitutes a disease, depending on the extent it affected the ability to make rational judgment and emotional responses; it would justify irresponsibility or only diminished responsibility.

 

 

Voluntary and Involuntary Intoxication:

 

 

Regarding intoxication, whether voluntary or involuntary, most penal codes flatly state that intoxication is not defense which is actually, not true. Involuntary intoxication, for example, because of prescription medication or coercion can constitute a defense. Where an offense is committed under intoxication caused due to fraud or coercion, the intoxicated man may not be said to have acted on his own accord, and therefore, is not responsible for the consequences of his acts. The justification for such a provision is based on the contention that the accused had himself not contributed to his drunkenness, which was not likely to be repeated as in case of voluntary drunkenness.

 

Most courts in America have held that even voluntary intoxication, when sever, may render a person incapable of forming certain specific types of criminal intent, which is an ingredient element of the crime in question. For example, murder in the first degree requires, among other things, premeditation and deliberation. Many courts have also held that if a defendant was so grossly intoxicated that he or she could not premeditate and deliberate, he or she can at best found guilty of murder in the second degree. To that extent, the law on intoxication conforms to the mens rea principle. But American law does not absolve intoxicated perpetrators of all criminal liability: gross voluntary intoxication may simply lower the degree of the crime committed. (Adler, Mueller and Laufer)

Generally the development of the law on drunkenness has passed through the following three stages:

1. That insanity, whether produced by drunkenness or otherwise, is a defense. The distinction between the defense of insanity in the true sense caused by excessive drinking, and the defense of drunkenness, which produces a condition such that the drunken man’s mind becomes incapable of forming specific intention, has been preserved throughout the case. The insane person cannot be convicted of a crime. There was no law that takes note of the cause of insanity. If actual insanity in fact supervenes as a result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause.

2. That evidence of drunkenness, which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts, proved in order to determine whether or not he had the intent.

3. That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. (Gaur)

The defense of drunkenness and its legal effects in Ethiopia is prescribed under Art. 50 and the discussion are followed here after. The provision is chiefly intended for persons who with some state of mind contravene the law while under voluntary influence of alcohol or drugs or any other means. It is based on the rule that intoxication is no defense if caused by the offenders’ voluntary act.

 

The main deference between Art. 50 and 48, 49 is not the bio-psychological condition of the offender but it is the condition, that creates the irresponsible nature of the offender. Unlike the legally recognized causes under the preceding articles, under this article, it is the doer who puts himself into a condition of irresponsibility or of limited responsibility by means of alcohol or drugs or by any other means.  Speaking objectively, the doer’s condition at the time of the offence was that of a mentally deficient person and may lead to say he should be treated in the same manner as the mentally deficient a person regardless of the fact that he himself deliberately created this abnormal condition. But speaking subjectively, intent existed before the offence was committed, since the accused was capable of forming a specific intention prior to intoxicating himself. Under this condition, the person not only did he voluntarily place himself in an abnormal condition, but he did so in order to carry out a decision which he had freely made. This is also applicable to circumstances under which a person voluntarily places himself in a state of irresponsibility when he knows and accepts the possibility of doing wrong. Therefore, in the cases coming under this condition, the court must ensure that the case actually committed is that which the accused directly or indirectly intended when he intoxicated himself. This is applicable in relation to both offenses of commission (if A drinks in order to kill B) or omission (if A, a soldier on leave drinks so as to disable himself from going back to his unit). Art. 50(1) supports the second conception, which prevents an accused benefiting from the provisions of Arts.48 and 49 on the sole ground that he committed an offence, while in an abnormal condition that was created by himself.  Thus, the fault of the doer operates as an absolute prohibition from invoking Arts.48 and 49. Instead, in such cases, the offender may be convicted and sentenced as though he had been fully responsible at the time of the act.

 

The second condition by which an offender shall not be benefited from the provisions excluding or reducing the punishment is when a person who commits an offence in a state of partial or complete irresponsibility in which he placed himself, not for the purpose of committing an offence, but when he knew or should and could have known that he was apt to do wrong while being in an abnormal condition (Art.50/2). Under this sub-article, a person drinks or consume drugs, though he foresees, but rejects, the possibility of doing wrong or he is not, but should and could be aware that he may do wrong. This therefore is applicable to states of negligence—advertent and inadvertent. The implication here is that the doer will not be held liable if the wrong he has done is not punishable.

 

The third situation with which Art.50 deals is that of an accused who, having placed himself in a condition of complete irresponsibility commits or attempts to commit an offence with which he did not intend to commit; nor could and should he have foreseen the possibility of committing it. For instance a person may in a particular quite and cold evening staying home alone begin to drink with intent to get himself warm and relaxed but may get completely drunk and commit a punishable act. In such instances, the accused is not liable to punishment under sub-art.3, as the person has neither criminal intention nor criminal negligence existed before he intoxicated himself. According to Art.57 (1), he should, therefore, go free because he is not guilty of the offence committed. However, the need to ensure the peace of the public justifies that the offender should be punished and should not be permitted to excuse himself on the ground that he did not mean to do any harm prior to getting drunk. Under sub-art.3, this conflict is solved by holding the doer not of the offence actually he committed but of a special offence against public safety (Art.491). Art.491 is based on the assumption that anyone who intoxicates himself is always a latent menace for others and that he is punishable as soon as he creates a concrete danger, i.e. he commits an offence.

 

The Defence of Intoxication At A Glance:

Sub-Art.	State of the Defendant	State Induced By	Crime Committed	Legal Consequence
Art. 50/1	Absolute or Limited irresponsibility	Own fault (Voluntary Intoxication)	Intentionally (In order to…)	Fully liable to punishment
Art 50/2	Absolute or Limited irresponsibility	Own fault (Negligence)	Negligently	Punishable for negligent commission of the crime
Art. 50/3	Absolute irresponsibility	Own fault	Accidentally (Neither contemplated nor intended)	Punishable under Art. 491 provided the crime is punishable with at least 1 year.
Art. 50/4	Absolute irresponsibility	No fault on his part (i.e. has been coerced)	While incapable of forming  any mental element	Shall not be liable to punishment

 

The following important inferences can be drawn from the above legal provisions:

- Voluntary drunkenness is not defiance for the commission of a crime, except for minute variations in the liability.

- Sub- Art. (2)  reduces the defendant’s liability to negligent commission of the crime which according to Art. 59/2 is punishable only if the law expressly provides for punishment.

- Su-Art. (3) deals with act neither contemplated nor intended which is committed in a state of absolute irresponsibility and prescribes punishment in accordance with Art. 491 provided that such act is normally punishable with at least one year’s imprisonment. Under Art. 491 the defendant is punishable with fine or with simple imprisonment not exceeding one year, according to the degree of danger or gravity of the act committed.

- Involuntary such as, the thing which intoxicated him was administered to him without his knowledge or against his will shall afford him a valid defence as it does not amount to putting himself into the state of irresponsibility.

 

Voluntariness here has to be understood clearly. There are two things to be distinguished:

• Voluntariness relating to the act of getting intoxicated,
• Voluntariness in doing the act subsequent to the intoxication.

There can a ‘state of incapacity’ produced either by drinking voluntarily or involuntarily. Once the state of incapacity is produced it means that the person is incapable of doing things voluntarily i.e. he is irresponsible either absolutely or partially. However, Art. 50 is concerned with the combination of two factors:

1. He should not have by his own fault out himself in the state of drunkenness,

2. Whish makes him absolutely irresponsible so as to satisfy the essentials of Art. 48 or partially irresponsible so as to fit in to the requirements of Art. 49.

If the defendant gets intoxicated voluntarily:

• he is fully liable under Sub-Art (1) of Art. 50,
• he is liable for negligently doing it under Sub-Art.(2), if he is aware, or could  or should have been aware of the likelihood of committing a crime subsequently,
• he is liable for committing disturbances resulting from acts committed in a state of culpable irresponsibility under Art.491 of the Special Part, if he is completely unaware of the likelihood of committing a crime subsequent to intoxication.

 

Doubtful Cases

 

 

Although nowhere in the Code specifically said so, every accused is presumed to be responsible for his acts. Therefore, as a general rule, the alleging party need not prove that the accused was capable, at the time of the offence, of understanding what he was doing and of behaving accordingly. This presumption, however, is destroyed if doubt arises regarding the offender’s mental stability. The court may fall in doubt about the responsibility of the accused as there are objective reasons to doubt or any of the conditions identified by law are found. And the court cannot proceed before clearing the doubt either through medical examination and inquiry into the character, antecedent and circumstances of the accused. On the basis of the finding, the court shall make such decision, as it thinks fit.

 

 

• Conditions where the Court Falls in Doubt about the Responsibility of the Accused:

 

The first condition where the court is allowed to doubt about the responsibility of the accused brought before it is when the accused displayed any sign of insanity. In fact Art.51 (1) does not specify how the ground of the doubt should be serious. But almost certain that a mere informal conduct displayed in the courtroom is inadequate for the court to fall in doubt about the mental condition of the accused. Instead there should be objective reasons for the doubt (e.g. the accused is interdicted by civil court, the accused produce a medical proof to the effect that he is suffering from a given mental disease, etc.). In other words, if its doubts arises from factual elements and not mere conjecture, the court is obliged to obtain medical evidence and it should do so of its own motion even though the accused is not affected as provided for in the second alinea of sub-art (1) or does not raise a defense of insanity.

 

The second situation in which a medical examination must be ordered is that where the accused shows any symptoms of derangement of the mind or epilepsy, or he is deaf and dumb or suffers from chronic intoxication due to alcohol or drugs. In these instances, it is immaterial whether or not the court is in doubt as to the offender’s mental stability. The court is rather presumed to have such suspicions because the accused is in such a condition that there exists what might be termed as a presumption of irresponsibility.

 

In either of the above conditions, the court is bound to obtain the medical evidence. It may, in addition, require other evidences to help the court to clarify the point in issue.

 

 

• Duties of the Medical Expert:

 

According to Art.51 (2), the duties of the medical expert are of two folds. First, the medical expert shall investigate whether any of the biological causes of irresponsibility or limited responsibility mentioned in Art.48 and 49 is present and what its effects. What the court expects the of medical expert is to state whether the offender’s faculty of “judgment and free determination were affected by some biological defects and, if so, whether the deprivation was complete or partial. In this case the essential time reference is the time of the commission of the crime. Only this time is important to determine irresponsibility. However the mental condition of the offender at the time of trial is also important to determine whether the offender is capable of standing on trial. Accordingly, most criminal codes authorize the court to order medical experts to examine and state the mental condition of the offender both at the time of the commission of the crime and at the time of trial. The Amharic version of sub-art.2, second alinea accurately refer to both the time of the commission of the crime and the time of the trail. The English version, however, refers solely to the time of trial and many agree that this simply an oversight.  Secondly, the medical expert advise the court as to the curative or protective measures that it might be necessary or desirable to order should the accused be found not fully responsible for his acts.

 

Case Problem:

Three friends Khalid, Addisu and Binyam went to a restaurant to celebrate the birthday of Addisu. They started taking drink after drink and were enjoying their time. During their conversation they picked up an argument over an issue and Biniyam got really angry with some of the arguments made by Khalid and seriously left the place and went out. Biniyam was fully drunk by that time. After sometime he reappeared there and continued to drink with his friends. Then Khalid teased him over the matter once again. Biniyam this time got enraged and took a beer bottle and hit Khalid hard on his head. Khalid had a profuse bleeding due to the cut wounds by the sharp edges of the bottle and was rushed to the hospital by both Addis and Biniyam. Unfortunately Khalid died after two days of medical treatment.

Can Biniyam raise the argument that he his case should be treated under Art. 50/3?

Note these points:

1.It was a case of voluntary intoxication.

2.The commission of the act was neither contemplated nor intended as is clear from the facts. They were friends and celebrating a birthday.

3.No evidence of previous enmity or even any disturbances between them.

4.Assume that provocation as defence is ruled out as it was not a case of gross provocation.

5.Assuming that Art. 50/3 can be rightly applied to the facts of the case, can this case be appropriately be dealt with under Art. 491?

6.Do you think that any case is punishable with at least one year of imprisonment (and above) can rightly be brought under Art. 491?

General Defenses:

Defenses for criminal liability are circumstances that relieve an accused from conviction of guilt and its consequent penalty. These circumstances exempt a criminal from criminal liability or entitle him/her to a reduced punishment.

 

Defenses for criminal liability are incorporated in criminal law in different ways. Some are clearly provided by the law as defenses while others are not. The latter categories are special defenses.  They are defenses that apply in particular crime. Special defenses could be non-fulfillment of essential conditions of the crimes provided in the special part of the Criminal Code. According to article 665 of the Criminal Code, for example, the crime of theft is not complete unless the thing abstracted belongs to somebody else. If the accused abstracted his/her property, he/she can raise this fact as a defense. Special defenses could also be defenses provided for particular crime. For example, Article. 640 of the Criminal Code prohibit obscene publications. Article 642 provides defenses for the crime of obscene publication. As a result, artistic, literary or scientific works or objects are not considered obscene or indecent.

 

The other categories of defenses are those expressly provided by law as defense. They are general defenses. They are applicable to all crimes. They are excuses and justifications. The Criminal Code of 2005 does not follow this dichotomy. However, we follow this classification in this module for convenient understanding.

 

Excuses are defenses that arise because the defendant is not blameworthy for having acted in a way that would otherwise be criminal. Excuses are the defects and unusual conditions of the criminal during the commission of the crime. Thus, if persons commit crime unwillingly, without understanding the nature and consequences of their act, with mistaken belief of facts or law, the law excuses them from criminal liability. In the cases of the excuses, the focus is on the individual criminal rather than on the crime committed.

 

Defenses that arise when the defendant has acted in a way that the law does not seek to prevent are called justification defenses. In short they can be called “justifications”.  In cases of justifications, there are preliminary conditions that enable the doer of the act to take necessary and proportionate action. Thus, when there is an attack on legally protected rights, the steps taken to reverse the attack is justifiable act. Similarly, if the persons found themselves in imminent and serious danger and their only choice to avoid this situation is by committing a crime, their act is justifiable if they have chosen the lesser harm. In justifications, the focus is on the act rather than on the criminal. The society encourages those acts. Justifications include acts required or authorized by law, legitimate defense, necessity and professional duty.

 

 

Justification for Defences:

 

Law reflects the value of the society. It punishes persons blamed for committing harmful act against the society. Nevertheless, sometimes the society does not blame the perpetrator of an act that has caused harm to it when that act is committed in certain circumstances. The circumstances in which the doer of an harmful act will not be blamed are provided by the criminal law as defense for criminal liability. The basic reason for the existence of the defense is that it is not just to hold persons guilty for a crime for which the society does not blame them as a criminal.

It is the basic principle of criminal law that there is no crime unless all its elements are fulfilled. Article 23(2) of the Criminal Code provides that a crime is only completed when all its legal, material and moral ingredients are present. The absence of one of these ingredients necessarily implies the absence of crime. If persons commit a crime under the circumstances that provide them with defenses, one of the ingredients of the crime is lacking. As a result, there is no crime committed. For example, homicide is a crime. A person commits homicide when he/she kills a criminal who has been sentenced to death penalty. Yet, there is no crime of homicide as executing death penalty is a lawful act. Thus, justifications are defenses for criminal liability. In justifications, the legal ingredient of the crime is not present. Similarly, the act is short of moral element when irresponsible persons commit it. Consequently, irresponsibility is an excuse. Thus, where either the legal or the moral element is not present, it is not legally acceptable to punish persons for their deeds.

 

 

Burden of Proof in Cases of Defenses:

 

 

The general rule is that it is the duty of the prosecution to prove the accused’s guilt and if at the end of and on the whole of the case, there is a reasonable doubt created by the evidence, given by either the prosecution or the defence, as to whether the accused had committed the crime or not, the accused is entitled to acquittal on the ground of benefit of doubt (Woolmington v. D.P.P., 1935 A.C. 462). However, “the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always are good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go, but an innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breakdown and loose credibility with the community. If unmerited acquittals become general, they tend to lead to cynical disregard of the law, and this in turn , leads to public demand for harsher legal presumptions against indicted ‘person’and more severe punishment of those who have found guilty.”(Per Mr. Justice Krishna Iyer)

 

But the burden of proving the existence of circumstances bringing the case of the accused within any of the general exception in the criminal Code, or within any special exception or proviso contained in any part of the Code, or in any law defining the crime is upon him, and the court of shall presume the absence of such circumstances. It means if an accused pleads defence within the meaning of ‘excusable’ or ‘justifiable’ grounds of defence, there is a presumption against him and the burden to rebut that presumption is on him. This does not mean that the accused must lead evidence. Circumstance which would bring the case of an accused within any of the general defences may be proved from the evidence given for the prosecution or otherwise found on the record. Where an accused pleads a defence but the evidence given in support of such plea fails to satisfy the court affirmatively of the existence of circumstance bringing the case within the general exception pleaded, the accused is still entitled to be acquitted if upon a consideration of the evidence as the whole a reasonable doubt is created in the mind of the court, whether the accused is or is not entitled to the benefit of the said exception. If it is apparent from the evidence on the record, whether produced by the prosecution or by the defence, that a general defence would apply then the presumption is removed and it is open to the court to consider whether the evidence satisfactorily shows that the accused is entitled to the benefit of the general defence.

 

The principles enunciated in the provisions relating to defences to criminal liability are in fact rules of evidence carrying either conclusive or rebuttable presumptions. They deal with the circumstances which preclude the existence of mens rea. They are, therefore, enumeration of the circumstances that are incompatible with the existence of mens rea. Huda calls these principles “conditions non-imputability”, and Kenny calls them “conditions of exemption from criminal liability”. If the existence of facts or circumstances bringing the case within any of the exceptions is proved, it negatives the existence of mens rea necessary to constitute the crime and thereby furnishes a ground for exemption from criminal liability.

 

 

Criminal Responsibility and Irresponsibility

 

 

Responsibility is a person’s mental fitness to answer in a court for his/her action. Persons are criminally liable only if they are responsible for their acts. Thus, the court should not punish the criminals unless it finds them responsible for their acts. Therefore, to determine the guilt of persons it is necessary to ascertain their responsibility. Responsibility or irresponsibility is concerned with the criminals’ awareness and their capabilities to control their action. If the criminal do not know the nature and consequences of their act or if they cannot control their acts despite their awareness, they should not be responsible for the result of their acts. Therefore, before ascertaining that the criminals have committed the crime intentionally or by negligence, it is necessary to assure the responsibility or irresponsibility of the criminals. Irresponsibility may arise in three cases. With regards to adults, it may arise from insanity or intoxication, and with regards to infants, it may arise from their immaturity.

 

• Responsibility is Presumed By the Court: Generally, when a person is accused of a crime his/her responsibility is presumed by the Court. The prosecution need not prove it. This means that of  the important things necessary to make a person liable for punishment within the meaning of Art.49/1 are established the in the following way:

 

1. The proof that the act was done by the accused---It is the burden of the prosecutor.
2. The fact that the accused is responsible for his acts—This is presumed by the Court.

 

However, the question of irresponsibility arises in any of the following two situations:

 

• When the accused invokes it, particularly, during the preliminary objections as per Art. 130/2/g of the Criminal Procedure Code, on the first day of the criminal Proceeding.
• When the Court is doubtful about the mental condition of the accused due to partial or complete deprivation of mental faculties. The Court may entertain such a doubt at any stage of the trail from the conduct of the accused on the trial.

Once the ‘question’ arises it becomes necessary to decide the facts in the light of Arts. 48 and 49. Then it becomes the burden of the defence to prove the accused is irresponsibility beyond reasonable doubt. Then the burden of the prosecution is only to raise a reasonable doubt in the mind of the Court that the accused is responsible and deserves punishment.

 

 

1.1. Absolute Irresponsibility: Art. 48

 

 

According to Art. 23 (3), a criminal offense is not punishable unless the accused is found guilty. Moreover, no person is liable to punishment unless he is found responsible for his acts (Art. 48). Rather the fulfillment of the requirement as to responsibility is a condition precedent to the fulfillment of the requirement as to guilt. This is to mean that no person may be convicted of an offence unless, at the time of commission, he was not irresponsible for his acts. In other words, before a court can decide whether the accused acted intentionally or negligently, it must satisfy itself that the accused was not incapable of so acting.

 

On the other hand, as there is consensus about the fact that insane persons cannot commit punishable crimes; the problem of defining criminal responsibility remained the most controversial one.  The question as to who is responsible person is not yet settled for it involves numerous extra-legal elements. Philosophers, lawyers and physicians have done their best to lay down the criteria for responsibility that could have been utilized across all disciplines. Spiritualists and positivists as well have got different opinions as to who responsible is. The former defined responsibility in terms of free will while the latter thought in terms of determination through factors such as heredity, education, geographical conditions, and the like. This made the effort exerted to reach an entirely complete and satisfactory definition of responsibility a futile exercise.  Thus, more that could be done was to identify certain signs or symptoms, which, if present in a person, should prohibit his being regarded as responsible for his acts. The basis or sources of many of these signs and symptoms were some celebrated common law cases that involved a defense of insanity. Accordingly different tests or rules were developed along each case that aimed at determining irresponsibility. In general responsibility could not be defined in a positive, but only in a negative manner, and this is why most codes including the Ethiopian Criminal Code (2005) do not describe responsible but irresponsible persons.

 

 

Insanity:

 

Insanity is a complete defense to a criminal charge. It is based on the assumption that one who is insane has no mind and hence cannot have the necessary mens rea to commit a crime.

 

Being deprived of free will, an insane person is placed in an even worse condition than a child, because the latter can at least control his will and regulate his conduct, whereas the former cannot. Moreover, the act of an insane man, being unintentional and involuntary, no punishment can deter it. At the same time, people are to be protected from being attacked by maniacs and accordingly, a provision has been made in many jurisdictions for the detention and care of insane persons. (Gaur, K D., Criminal Law, Cases and Materials, 4^th ed., Butterworths, 2005, New Delhi, pp. 115-127)

 

Insanity, according to medical science, is a disease of the mind, which impairs the mental faculty of man. In law, insanity means a disease of mind, which impairs the cognitive faculty, namely, the reasoning capacity of a man to such an extent as to render him incapable of understanding the nature and consequences of his act. It excludes from its purview, the insanity caused due to emotional and volitional factors. It is only insanity of a particular or appropriate kind, which is regarded as insanity at law that will excuse a man from criminal liability. The legal concept of insanity widely differs from that of the medical concept.

 

The kind and degree of insanity available as a defense to a crime has many times been defined. However, the most notable of all is the ‘right and wrong test’ formulated in Mc`Naughten’s case. It was an interesting case, worth remembering. According to the summary of the case Daniel M’Naghten was obsessed by the idea that Sir Robert Peel, by creating the Metropolitan Police in London, wanted to destroy the liberties of Englishmen. He hunted Sir Robert to kill him, but mistakenly shot and killed his secretary. M’Naghten was acquitted of the murder charge by virtue of insanity.

 

The House of Lords moved by the controversy aroused and clarified the defense of insanity as follows:

 

Every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crime, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was suffering under such a defect of reason, from disease of the  mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know he was doing what was wrong. (Freda and others, 1994: 91-93)

 

Therefore according to their clarification, a defendant is not guilty of crime if, at the time of the act, due to severe mental illness, First, in cases the defendant does not know the nature and quality of his or her act (in other words, did not appreciate what he was doing so that the “act requirement” is not fulfilled), for example, a person strikes another person, and in consequence of an insane delusion thinks he is breaking a jar or second in cases, that the defendant does not know the wrongfulness of his or her act (in other words, if he could not form the requisite mens rea), for exaple, one may, under insane delusion, believe an innocent man whom he kills, to be a man who is going to take his life.

 

On the other hand, the isolated reference to and application of the second part of the test and the resultant miscarriage of justice caused courts to constantly change and reshape their tests of insanity. The following are some of the short-lived insanity tests:

 

• The irresistible impulse addition to the M’Naghten test: A defendant may be acquitted if he or she was unable to control the action due to mental illness.
• The Durham Rule, or “product test” (1954): The defendant must be acquitted if the crime was the product of mental disease or defect.
• The Currens Test (1961): The defendant must be acquitted if he or she “lacked substantial capacity to conform his conduct to the requirements of  the law…as a result of mental disease or defect.”

 

Latter in 1982 the American Congress settled the issue, at least as far as federal law is concerned, by providing for an acquittal by reason of insanity if “at the time of the commission of the act the defendant, as a result of sever mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his act.” But majority of states in the region have adopted the version codified in the American Law Institute’s Model Penal Code and known as the ALI test:

 

A person is not responsible for criminal conduct if at the time of such as a result of mental disease and defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law.

 

This test focuses on the defendant’s capacity to form the necessary criminal intent by asking whether the defendant appreciated the wrongfulness of the act. It also emphasizes, as part of the mens rea, the defendant’s volitional capacity: Could the defendant really intend to commit the wrongful act? Did he have the “(substantial) capacity” “to conform his conduct to the requirements of law”?

 

The laws, which the Criminal Code of Ethiopia provides regarding defense of insanity, are found in Article 48.  As elaborated earlier in this section, our law do not describe responsible, but irresponsible person. It implies that an offender is presumed to be responsible so long as he does not show any of the signs of partial or total irresponsibility enumerated in the law, and only an offender who does not show any of these signs is fully liable to punishment. Thus, responsibility of an offender is not an element that the alleging party must always establish. Instead, responsibility is a legal presumption.

 

Essential Conditions to Establish the Defence of Insanity:

 

 

Art. 48(2) requires the proof of the defence of irresponsibility i.e. the incapacity of the defendant to form a guilty intention basing on the following important things:

 

1. Nature of the incapacity: That the accuses is incapable of understanding the nature or consequences of his act or of  regulating his conduct according to such understanding,
2. Reason of the incapacity: That such incapacity is due to age, illness, abnormal delay in his development or deterioration of his mental faculties, (one of the causes specified under Art. 49 (1) i.e. a derangement or an abnormal or deficient condition).
3. Time of the incapacity: That such incapacity exists at the time of his act that produced the consequences in question.

 

The Code resorted to one of the three principal methods of defining criminal responsibility, namely: The biological method, the psychological method and the bio-psychological method. The three methods differ on factors that deem to be the source of irresponsibility. The biological method consists in specifying a number of physical or mental disabilities or defects deemed to render the person concerned irresponsible. The psychological method on the other hand consists in prescribing that a person incurs no liability that, at the time of the offense, was incapable of understanding the nature of his acts or of controlling himself. And according to the bio-psychological method, followed in many modern Codes including the Criminal Code of Ethiopia, a person is regarded as irresponsible only if, at the time of the commission of the crime, he was deprived of his mental faculties in consequence of certain biological defects. In other words there must be a causal relation between the biological defect, which the offender suffers, and the psychological failure as a result of which the person become incapable to understanding his acts. However the mere presence of the two does not suffice. Aaccording to this system reasons other than mental disease such as anger, hatred or lust, are capable of rendering a person ‘mad’ or ‘insane’. In the popular sense of the terms, they are excluded from being considered as grounds of legal irresponsibility

 

Sub-Article 2 of the provision clearly provides the test of insanity. It provides both the biological and psychological tests, which are enumerated below:

 

• Age: refers to old age, for senility may affect a person’s mental faculties;
• Illness: refers to any form of mental as well as physical disease as a result of which a person is deprived of his mental faculties.
• An abnormal delay in the offender’s development, which includes cases such as idiotism, cretinism, the consequences of deafness, dumbness sleeping sickness, and the like;
• Deterioration of mental faculties of the offender due to poison, intoxication by alcohol or drugs, hypnosis or somnambulism;

The sub-provision further cross-referred to the unlimited biological causes recognized under Article 49 as capable of affecting person’s state of mind.

Regarding the psychological consequences in most legal systems two different mental conditions are recognized to claim exemption from criminal liability.

 

These are:

a) the accused was incapable of knowing the nature of the act, owing to unsoundness of mind, or

b) the accused was precluded by reason of unsoundness of mind from understanding that what he was doing was either wrong or contrary to law.

 

In this regard, our law in the same sub-Article specifies three manifestations.

They are:

• inability to understand the nature of the act. For example, if person strikes another, and in consequence of an insane delusion he thinks that he is breaking a jar.
• inability to understand the consequences of the act for example a person may kill a child under an insane delusion that he is saving him from sin and sending him to heaven
• inability to regulate one’s conduct according to such understanding (some suggests this implies the notion of ‘irresistible impulse’ which includes cases where the offender is deprived of the power of controlling his conduct/Graven)  by disease.

These psychological failures can also be categorized into lack of intelligence and absence of will power. In the first category, due to some kind of disease the doer is deprived of minimum of intelligence, which should be present in a responsible person so as to enable him to know what he is doing.  In the second category, the doer is deprived minimum of ‘power of will’, which should be presented in a responsible person so as to enable him to make a reasonable decision or to act in accordance therewith. For a person to be regarded as criminally irresponsible, it is not necessary that both his intelligence and volition should have been abolished. It is sufficient to show that the offender at the time of the act was totally deprived of either his intelligence or volition. Further, it is of no importance whether the biological causes are temporary or permanent nature. Only the presence of one type of disease at the time of the act is relevant.

 

Proving Insanity

 

In addition to its role in determining responsibility, insanity plays an important role in determining whether the defendant is competent to stand trial or not. In this latter case only relatively less complication may occur in establishing insanity for it is based on the actual state of mind of the defendant existing at the time of trial. A more controversial application of insanity occurs when one attempts to determine whether the defendant was sane or not at the time of the act. This is because insanity may have been completely removed at the time of trial. Therefore, although in both cases medical science has the decisive role to play, looking in to the motive and conduct of the accused before, during and after the incident is more relevant in establishing insanity for the purpose determining irresponsibility. Accordingly, Art. 51 of the Criminal Code authorized the court to order an inquiry to be made as to the character, antecedents and circumstances of the accused person. Therefore the conduct of the doer prior to the incident as well as at the time of the incident and subsequent to the incident does not support the contention that he was insane at the time when the offense was committed; the court may make such decisions as it thinks fit. This implies that ‘legal insanity’ is not the same thing as ‘medical insanity’ and a case that falls within the latter category need not necessarily fall within the former.

 

Besides, the law presumes that every person is sane unless the contrary is proved. Mere absence of motive would not indicate that the accused was insane, or that he did not have the necessary mens rea for the commission of the offence. Thus in a case where pre and post facto situations show little or no sign of insanity, the doer bears a heavy burden to prove its existence at the time of the commission of the act.

 

At last, what the law lays down is not that the accused claiming protection under it should not know an act to be right or wrong, but that the accused should be ‘incapable’ of knowing whether the act done by him is right or wrong.

 

The capacity to know a thing is quite different from what a person knows. The former is a matter of potentiality; the latter is the result of it. If a person possesses the former, he cannot be protected in law, whatever might be the result of his potentiality. In other words, what is protected is an inherent or organic incapacity, and not a wrong or erroneous belief which might be the result of a perverted potentiality.

 

 

Legal Effects of Criminal Irresponsibility:

 

The legal effects of criminal irresponsibility are of two kinds. other is that an irresponsible person incurs no liability since, according to sub-art. (1), “the criminal who is responsible for his acts alone liable to punishment. The other is that hand the law required the court to ensure the irresponsible person will not be any more a menace for others. Therefore, sub-art. 3 authorizes the court to make orders under Arts. 129-131, whenever these measures are necessary for the treatment of the offender or the protection of the public or both.

 

Limited Responsibility: Art. 49

 

 

It is believed that the fact that some who committed particularly notorious crimes invoked insanity and escaped justice has prompted several states to pass legislation providing for an alternative disposition, that of “guilty but mentally ill.” This novel idea is meant to cover defendants not mentally ill enough to qualify for an outright acquittal “by reason of insanity,” yet not well enough to be found fully accountable and “guilty”. Therefore, between insanity and sanity, there exists intermediary stages where an offenders faculties are affected to such an extent that, although he is certainly able to understand what he does and to act accordingly, it is equally certain that his intelligence or will-power is not that of a “normal” person and that his degree of guilt is consequently lesser than that of such a person. Such a person may neither be relieved of liability, since he is not fully irresponsible, nor should he be liable to a full punishment, since he is not fully responsible.

 

Unlike irresponsible persons, who are for some biological reasons totally deprived of their mental faculties, semi-responsible offenders are persons who are for some biological reason only partially deprived of their understanding or volition.  It is therefore, to this kind of offender that Art. 49 applies and it applies only where there is no doubt the accused is not fully irresponsible within the meaning of Art. 48.

 

Characteristics of Limited Responsibility

 

 

It was believed that some biological diseases or defects are less serious to cause absolute irresponsibility. Accordingly it was proposed that the biological causes of limited responsibility described under Art. 49, stated as a derangement of the mind or understanding (e.g. hysteria), an arrested mental development (e.g. imbecility) and an abnormal or deficient condition (e.g. alcoholic intoxication) do not have the effects specified under Art. 48.

 

But according to the contemporary view, the causes and characteristic ingredients of limited responsibility are similar to those of irresponsibility. The question is that whether the abnormality substantially impaired the defendant’s mental responsibility for his acts or not. This is a question of degree.  In most cases only expert evidence will enable the court to decide whether and to what extent the accused is irresponsible. But some common law jurists  such Per Lord Parker argues that 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 be called ‘substantial’, medical evidence serves a limited purpose. For jurists, it is a matter upon which juries may quite legitimately differ from doctors.

 

A person is not partially responsible for the sole reason that he is of low intelligence or poor education. A mediocre intellect does not amount to feeble-mindedness within the meaning of criminal law. A person may have an insufficient education or be capable of realizing that he does something unlawful. Therefore, like Art. 48, it is required that the offender should have been at the time of the offense in a biological abnormal condition affecting his mental faculties. In fact, it sufficient that the offender’s capacity of understanding or will power should have been diminished.

 

Furthermore, a person is not partially responsible for the sole reason that he is of week character or morally perverted. “The court must reduce the penalty only with regard to an offender who suffers from a mental disease or whose mental development is incomplete, but not with regard to a weak person who is aware of the unlawful nature of his act and who commits an offence out of dishonesty”.

 

 

Legal Effects of Limited Responsibility:

 

 

Like that of irresponsibility, the legal effects of limited responsibility are of two kinds:

1.The accused is liable to punishment since he was not irresponsible at the time of the act and he is capable of understanding the meaning and purpose of punishment; however, the penalty must be reduced because the offender’s responsibility, and consequently his degree of guilt, is reduced. Since persons who are not fully responsible for their acts may, like irresponsible persons, be in need of medical treatment or threaten public safety, the court must, whenever the necessity is present make an order under Art. 130 or 131, as the case may be.

Thus, unlike other defenses, the legal effects of insanity, whether absolute or limited, shows that the court is duty bound to deal with the causes of the insanity. If the court orders confinement or compulsory treatment, that is for the benefit of the offender himself or the community in which the defendant is living.

3.1. Historical Background:

The history of Ethiopian Criminal law reveals the following important legislations incorporating the Criminal law of the country before the enactment of the existing Criminal Code of FDRE, 2005.

A. The Fewuse Menfessawi,

B. The Fetha  Negest,

C. The Ethiopian Penal Code, 1930.

D. The Penal Code of the Empire of Ethiopia, 1957.

E.  The 1974 Revolution and Criminal Law

F.  Special Penal Code of 1981

A. The Fewuse Menfessawi (The Canonical Penance):

The first attempt to compile the law was made by the emperor zar’a  Ya’equob (r.1434- 1468).  Desiring to govern his realm by a written law rather than by amorphous customary law and oral tradition, the emperor ordered distinguished Ethiopian Orthodox Church Scholars to compile an authoritative written law. The compilation had 62 articles mainly on criminal matters. Since this was far less than comprehensive, it was not able to resolve many of the legal problems that arose during that period.

B. The Fetha  Negest (The Law of the Kings):

The failure of the Fewuse Menfessawi led to the next codification by the same Emperor Za’ra Ya’eqob . The Fetha Negest is a very interesting legal compilation.

 

As highlighted by Graven (year), Fetha Negest included the following important criminal law principles :

• those concerning “intention” and “negligence”,
• relating to the proportion  between the fault and sanction,
• the individualization of punishment,
• the forgiveness and redemption of offenders, and
• the sharing of guilt case of fighting etc.

These solutions in case of fighting etc. are most current, familiar and understandable situations for the people.

The Fetha Negest was formally incorporated into the Ethiopian legal system in 1908 by Emperor Menelik II. It can be said that in most cases, the Fetha Negest has attempted to incorporate the most suitable legal principles, which could be conceived in the epoch of its emergence. However, it suffered from the following drawbacks:

• It lacked the systematization and other characteristics of modern codes,
• Neither the ‘specific’ is differentiated from the ‘ general’ nor the ‘exception’ from the ‘rule’,
• Aggravating and extenuating circumstances were not clearly provided for,
• In general, the arrangement of the provisions is so haphazard that it is hard to locate  the most relevant provision ,and
• The Fetha Negest was accessible and understandable only to those who continuously studied it i.e. the clergy.

The criminal provisions of the Fetha Negest were applied in Ethiopia until they were replaced by the Penal Code.

C. The Ethiopian Penal Code of 1930:

The Penal Code of 1930 reflects the norms and values of the old absolutist monarchy of the generation of Emperor Menelik II and Emperor Zewditu (i.e. the era between 1889 and 1930). It was also drawn up in a less systematic and clear manner and did not follow the rules of a modern codification process.

The main attributes of the Code were as follows:

• The crimes and respective punishments were defined in exact fashion, and
• The penalties were considerably softened and improved by setting the fines in proportion to the then economic and monetary situations of Ethiopia.
• The Code under its Special Part protected the three great classic categories of interests. These were:

1. The state and Community,

2. Persons, and

3. Property.

Provisions of “Petty Offences” were incorporated towards the end of …..? .The sources of the Penal Code of 1930 seem to have been the Fetha Negest and the Siamese Penal Code and the Penal Code of the French Indo-China of the time. The drafter of the Code is believed to have been a Frenchman. The Penal Code of 1930 was in force until it was repealed and replaced by the 1957 Penal Code of Ethiopia.

D. The Ethiopian Penal Code, 1957:

Criminal laws do indeed reflect the conditions generally prevailing in the country where they apply. Therefore, they necessarily change. If substantial changes occur in the society, substantial modifications also become necessary in the legal and other rules. The old codified laws used in Ethiopia, approximately between 1450 and 1931, did not follow the rules of modern codification process and thus eventually proved unsatisfactory. When the necessity was felt for transformation of legal system in the second half of the 20 century, the modern codification process was initiated.

The task of drafting a new comprehensive penal code was entrusted to Jean Graven , a Swiss jurist who at that time had been the Dean of Faculty of Law and President of the Court of Cassation in Geneva , Switzerland.

The Sources and the Merits of the Penal Code Of 1957:

Obviously, the Criminal Code that appears in present-day society should be able to provide solutions to the complexities of modern life. In view of this fact, the drafter looked into the most modern penal codes that embodied the latest thinking in the sphere of criminal law. The primary source of the Code was the Swiss Penal Code of 1937 and the pre- 1957 Swiss Jurisprudence. The secondary sources were the French Penal Code of 1810 with respect to general format, the Yugoslav Penal Code of 1951 in relation to military offences, and more generally the code of Norway, Denmark, Poland the Federal Republic of Germany, the Netherlands, Portugal, Spain, Italy, Brazil and Greece. Some provisions of ‘the Universal Declaration of Human Rights’ and ‘the Red Cross Geneva Convention’ were also incorporated in the 1957 Penal Code of Ethiopia. The incorporation of   the latest principles of law in present day jurisprudence made the penal code of Ethiopia one of the modern and sophisticated criminal codes of the time.

In addition to this, the drafter also included a wide range of provisions that covered legal institutions that might arise in the future. New concepts, not   only juridical, also sociological and criminological were developed into a homogenous penal code, which aimed at the prevention of crimes and rehabilitation of criminals. The object of criminal law should not be retributive from the outset, despite the fact that punishment will serve as deterrent of prospective offenders.

It was the rationale of the penal code and the concepts embodied in some of its provisions that aroused bitter controversy among the members of the codification commission. The Fetha Negest, as well as the Penal Code of 1930, started from the presumption that criminals have to pay, i.e. have to be penalized for the injury they would cause to the individuals and to society at large. The objective of punishment was, according to these laws, in essence retributive. Now the draft penal code came up with new proposition with principal objective of  that the prevention of crime and rehabilitation of criminals. It was this deviation from the traditional approach that took some members of the commission by surprise.

After an arduous exchange of arguments, the draft was accepted mainly because it aimed at not only satisfying the then state of affairs, but guiding society as an instrument of change. The new code was intended to affect national unity and to provide for the progressive development of Ethiopia. On some points, however, compromises had to be made. Some were the following:

• Collective Punishment: According to customary law, where offences had been committed by one or several persons, it was found impossible to ascertain which of the persons involved was the criminal, the court could, where equity so required, order ‘the damage’ to be made good jointly by the group of persons who could have caused it and among whom the persons who caused the damage were certain to be found.

As this traditional practice seemed not be in line with rule of law and human rights, the compromise formula that was reached after a long debate between the foreign experts and the Ethiopian members of the codification commission was that, ‘where an offence is committed by a group of persons, the persons who proved to have taken no part in the commission of the offence shall not be punished.’

• Mutilation of Human Body As Punishment-Abolished: According to the old practice, habitual offenders were punished by mutilating the human body so as to give it the maximum deterrent effect. There was a general consensus not to incorporate this form of punishment. However, flogging was to be inflicted on such offenders provided that it was medically ascertained that the life of the offender would not be endangered.

• ‘Presumption of Innocence’- Introduced: In the past, the accused was required to prove his innocence. In modern penal legislation, however, the generally accepted principle is that the accused enjoys the presumption of innocence, according to which the burden of introducing evidence to prove the guilt of the accused is on the Prosecution. This is opposed to the previous principle of “presumption of guilt”. In addition to this, accused has the right to produce defense witnesses.

• Rules Applicable to Young Offenders: In the past, all offenders who were thought to have the capacity to discriminate between what is good and what is bad were brought before the regular courts. In the modern penal law, on the otherhand infants are completely exonerated from criminal provisions. Infancy is according to art 52 of the Penal Code, ‘the period extending from birth up to nine years.’ Infants are not deemed to be responsible for their acts under the law. The measures to be taken against such offenders should have curative, educational or corrective measures as may be necessary for their own good. Penalties and measures to be imposed on offenders between the ages of 9 and 15 years were those provided by Arts. 161-173 of the Penal Code. Thus, young persons were not subjected to the ordinary penalties applicable to adults nor should they be kept in custody with adult offenders. For purposes of the criminal law, the age of majority for young persons is 16 years.

• Probation and Suspension of Sentences: In the past all forms of sentences were executed. Present-day penal legislation provides that certain offenders may, under defined circumstances, be granted release on probation or the sentence may be suspended for a fixed time. Even after the execution of a sentence of imprisonment, one may be granted a reduction of the term which one is required to serve. In accordance with the rationale of modern principles of criminal law, the Ethiopian Penal Code aims at not punishing the offender, but at rehabilitating and educating him. As a result, it provides ample opportunities for probation and suspension of sentences.

• The Personal Nature of Criminal Punishments And Measures: If a convicted person died before the execution of a sentence, there was, according to customary laws, the possibility of proceeding against his property or the property of his next of kin. This was not retained in the Penal Code of 1957. The principle is that, ‘crime is personal to the one who is found to have committed it’, it is thus an innovation made in the present criminal law.

• The Punishment For Burning Of Crops (Arson): since Ethiopian society is predominantly an agricultural society, severe penalties are prescribed for offences relating to or committed on agricultural products. Recognizing this deep-seated value, burning of crops (arson) entailed more severe penalties than other comparable crimes provided in the new penal code. In addition to the above matters, drafter of the Code, Jean Graven, also pinpointed the following areas where new and old ideas have been reconciled:

• Capital punishment and corporal punishment (flogging) were maintained but with all the necessary precautions as to the instance of application and the conditions of administration.
• Pecuniary punishments particularly confiscation of property were made to be applicable in limited instances of serious crimes against the sovereign and the state
• The principle of collective responsibility for certain crimes involving tribes or anonymous criminals were made to rest on customary practices which had their own justification.
• The severe provisions on abduction and enslavement and the flexibility one sees with regard to adultery, concubine and illicit damage to property by stray animals of others are reflections of the changing modes of life of Ethiopia. In the words of the drafter while enacting the Penal Code :

“…the Ethiopian legislator has made every effort to construct a complete edifice, one maison mouvelle…   where one can find order and peace security and progress, united in a single whole.”

Thus, the historical objective behind the enactment of the Penal Code of 1957 was to let it serve as a unifying force and as a machinery to enhance future development of the country the Penal Code of Ethiopia was promulgated on July 23, 1957 and came into force on May 5, 1958, and was in force until May 8^th 2005.

E. The 1974 Revolution and Criminal Law:

Following the 1974 revolution, a "revolutionary" system of neighborhood justice emerged. It was difficult to distinguish between criminal acts and political offenses according to the definitions adopted in post-1974 revisions of the Penal Code. In November 1974, a proclamation which introduced Martial Law, was introduced. The martial law set up a system of military tribunals empowered to impose the death penalty or long prison terms for several political offenses. The Proclamation applied the law retroactively to the old regime's officials. The revolutionary government these officials responsibility for famine deaths, corruption, and mal-administration. Special three-member military tribunals sat in Addis Ababa and in each of the country's fourteen administrative regions.

In July 1976, the government amended the Penal Code of 1957 to institute the death penalty for "anti-revolutionary activities" and “economic crimes”. Investigation of political crimes came under the overall direction of the Revolutionary Operations Coordinating Committee in each awraja. In political cases, the courts waived search warrants required by the Criminal Procedure Code. The government transferred jurisdiction from the military tribunals to kebele and peasant association tribunals. Political trials constituted the main business of these tribunals until 1978.

Generally, the 1976 revision of the Penal Code empowered association tribunals to deal with criminal offenses. The revision limited the jurisdiction of association tribunals to their urban neighborhood or rural area. Elected magistrates, without formal legal training, conducted criminal trials. Procedures, precedents, and punishments varied widely from tribunal to tribunal, depending on the imperatives of the association involved. Peasant association tribunals accepted appeals at the Wereda (district) level. Appellate decisions were final. But decisions disputed between associations could be brought before peasant association courts at the Awraja level. In cities, Kebele tribunals were similarly organized in a three-tier system. Change of venue was arranged if a defendant committed an offense in another jurisdiction.

The judicial system was designed to be flexible. Magistrates could decide not to hear a case if the defendant pleaded guilty to minor charges and made a public apology. Nonetheless, torture was sometimes used to compel suspects and witnesses to testify. Penalties imposed at the local association level included fines of up to 300 birr. The tribunals could determine the amount of compensation to be paid to victims. The tribunals could impose imprisonment for up to three months and hard labor for up to fifteen days.

Association tribunals at the Awraja or Wereda level handled serious criminal cases. These tribunals were qualified to hand down higher sentences. Tribunal decisions were implemented through an association's public safety committee and were enforced by the local People's Protection Brigade. Without effective review of their actions, tribunals were known to order indefinite jailing.

The 1976 Special Penal Code, which was further elaborated in 1981, created new categories of so-called economic crimes. The list included hoarding, overcharging, and interfering with the distribution of consumer commodities. More serious offenses involved: engaging in sabotage at the work place or of agricultural production, conspiring to confuse work force members, and destroying vehicles and public property. Security sections of the Revolutionary Operations Coordinating Committee investigated economic crimes at the Awraja level and enforced land reform provisions through the peasant associations. These committees were empowered to charge suspects and held them for trial before local tribunals. Penalties could entail confiscation of property, a long prison term, or a death sentence.

F. Special Penal Code of 1981:

In 1981, the Revised Special Penal Code replaced the Special Penal Code. This amended Code included offenses against the government and the head of state, such as crimes against the state's independence and territorial integrity, armed uprising, and commission of "counterrevolutionary" acts. The 1981 amendment also included breach of trust by public officials and economic offenses, grain hoarding, illegal currency transactions, and corruption; and abuse of authority, including "improper or brutal" treatment of a prisoner, unlawful detention of a prisoner, and creating or failing to control famine. The Amended Special Penal Code also abolished the Special Military Courts. The Code created new Special Courts to try offenses under the Amended Special Penal Code. Special Courts consisted of three civilian judges and applied the existing Criminal and Civil Procedure Codes. Defendants had the right to legal representation and to appeal to a Special Appeal Court.

3. 2.The Criminal Code of the Federal Democratic Republic of Ethiopia, 2005 Proclamation No. 414/ 2004

The 1957 Penal Code of Ethiopia, was on 9^th May of 2005, and a new Criminal Code was  brought into enforcement. The factors that necessitated the revision of the Penal Law of Ethiopia are as follows:

1. To Incorporate the Modern Legal Concepts: During, nearly half a century? Since the 1957 Penal Code came into enforcement, several radical political, economic and social changes have taken place in Ethiopia. Among the factors that brought the changes, recognition of modern legal concepts by the Constitution and the international agreements ratified by Ethiopia were the major. The important phenomena that have been recognized in the Country in the recent past are:

• The equality between religions, nations, nationalities and peoples,
• The democratic rights and freedoms of citizens and residents,
• The Human rights,
• The rights of social groups like women and Children.

 

2. To Fill in the Lacunae: The 1957 Penal Code fails to properly address some of the criminal behavior arising out of advances in technology, the complexities of modern life as well as sufferings caused by reason of harmful traditional practices. Some such areas are:

• The High Jacking of aircraft,
• Money laundering,
• Crimes related to corruption and drugs,
• Grave injuries and sufferings caused to women and children by reason of harmful traditional practices.

It is true that the Constitution guarantees respect for the cultures of peoples, surely it does not intend to support those practices which are scientifically proved to be harmful. It is the responsibility of the legislature, by adopting progressive legislations, to educate and guide the public to discontinue such harmful traditional practices.

3. To Adopt a Comprehensive Criminal Code: It is desirable to adopt a comprehensive Criminal Code by putting together various Criminal provisions in the Negarit Gazeta in a disintegrated manner.  Similarly, since the parallel application of the regular Penal Code, 1957 and the Revised Special Penal Code of the Provisional Military Administration Council 1982 (Proclamation No. 214/1982), in respect of similar matters disregards equality among citizens. The Comprehensive Criminal Code, 2005 is intended to put an end to such practice.

4. Punishments for Certain Offences Increased: On the basis of public opinion taken during discussions on the draft Criminal Code, punishments in respect of crimes like rape and aggravated theft have been increased.

5. Matters Concerning the Determination of Sentence Revised: Since it is essential to facilitate the method by which the courts can pass similar punishments on similar cases, some major changes have been made in the provisions of the Code. Provisions of the Penal Code that used to make sentencing complicated and difficult have been amended. Provisions have been inserted which enables the courts to pass the appropriate penalty for each case by carefully examining from the lightest to the severe most punishment. A provision (Art. 88/4) has been introduced requiring the Federal Supreme Court to issue sentencing manual to ensure and control the correctness and uniformity of sentencing.

6. Purpose of Criminal Law and Objectives of Punishment Redefined: Another important point in respect of the determination of sentence is that, the purpose of Criminal Law is to preserve the peace and security by preventing the commission of crimes and a major means of preventing the commission of crime is punishment. Punishment can deter wrongdoers from committing other crimes; it can also serve as a warning to prospective wrongdoers. Although imprisonment and death are enforced in respect to certain crimes the main objective is to prevent wrongdoers temporarily or permanently from committing further crimes against society. And in such cases with the exception of the death sentence even criminals sentenced to life imprisonment can be released on parole before serving the whole term. In certain instances, convicts can be released on probation without enforcement of the sentence pronounced. This helps wrongdoers to lead a peaceful life and it indicates the major place which the Criminal Law has allocated for their rehabilitation. The fact that wrongdoers, instead of being made to suffer while in prison, take vocational training and participate in academic education, which would benefit them upon their release, reaffirms the great concern  envisaged by the Criminal Code about the reform of criminals. These express provisions in the new Code are included with intention that the Courts should, on passing sentence, take into account the purpose of the Criminal Law and the different aims of punishment.

In order to introduce all the above mentioned revisions and to adopt a comprehensive Criminal Code, substantive activities have been undertaken throughout the country. Discussions have been held on the draft Criminal Code prepared by the Ministry of Justice and the Justice and Legal System Research Institute. Legal and medical professionals, psychiatrists, different institutions of higher education and professional associations have made significant contributions through the opinions they have to the enactment of the law.  Representatives of the people selected from different sectors and associations have forwarded important views in discussion forums on the draft laws conducted in Addis Ababa and the regions. Moreover, the opinions of legal scholars and the laws and exigencies of foreign countries have been consulted to enrich the content of the Criminal Code.

It is hoped that the new Code will ensure respect for order, peace and security of the state and its peoples as well as respect for the rights and freedoms of its citizens and inhabitants. The Code is also expected to accelerate the economic progress of the State, strengthen   a steady order of free market and above all contribute towards the promotion of a fair judicial system in the country.

3.3. Scheme of the Criminal Code of FDRE, 2005:

The Criminal Code of 2005 has incorporated the Ethiopian Criminal law systematically, coherently and comprehensively. The Code is organized into three main parts.

I. General Part:

Part I of the Criminal Code is entitled “General Principles of Criminal Liability”, Part II Special Part and Part III is Petty Code. The General Part has two Books, namely:

Book. I. Arts. 1-86 “Crimes and the Criminal”. It lays down the general principles relating to “Criminal law and its Scope”(Art. 1-22), “The Crime and its Commission” (Art. 23-47), and the “Conditions of Liability to Punishment” (Art. 48-86).The General Part of the Criminal Code is the most technical part of the Code and the basic tool in the interpretation of any provision that embodies a specific crime. Issues such as the principle of legality, negligence, criminal responsibility, participation, lawful acts, justifiable and excusable acts, extenuating and aggravating circumstances etc, are covered in Book I.

Book. II (Arts. 87-237) is titled “The Criminal punishment and its Application”. This book deals with calculation of sentences, kinds of punishment, ordinary punishments applicable to adults, special measures applicable to adults, penalties applicable to young persons and also rules regarding determination , suspension, discontinuance and extinction of penalty.

II. The Special Part:

The “SPECIAL PART” of the code embodies ‘Specific Crimes’ which are organized under different titles systematically. This part of the Code includes four books. Each Book is sub – divided into Titles, chapters, sections, paragraphs and finally Articles. The Books of part II of the Code are follows.

Book III (Arts.238-374) incorporates ‘Crimes against the State or National or International Interests’. Book IV (Arts.375-537) deals with ‘Crimes against Public Interest or the Community’, Book V (Arts. 538-661) embodies ‘Crimes against Individuals and the Family’, and ‘Crimes against Property’ are found in Book VI (Arts. 662-733) of the Code.

Part III of the Criminal Code incorporates “The Code of Petty Offences”. This part of the Code also has two subdivisions, a General Part and a Special Part. The General Part embodies the rules governing liability to punishments and the Special Part deals with “Petty Offences” under specific heads.

The Criminal Code of FDRE, 2005, on the whole, consists of three parts, eight books, twenty eight Titles which include 865 Articles arranged in seventy two Chapters.

• Relation between General and Special Parts of the Code:

The ‘General Part’ of the Criminal Code sets out the general principles of liability which are common to all serious crimes. This part explains what is meant by a criminal intention, negligence, imprisonment, probation and the like. The ‘Special Part’ describes the various acts which are deemed to be ‘criminal’ and lays down the penalties applicable to them. It defines the essential elements of each crime such as murder, theft, robbery etc, and prescribes appropriate punishments for each of such crimes. However, the said penalties cannot be ordered unless the conditions prescribed by the General Part with respect to liability to punishment are fulfilled. In other words, the Special Part does not operate by itself but has to be considered together with the General Part. This means, a person who behaves in a manner contrary to provisions of the Special Part is not automatically punishable. He shall be punishable only where his conduct is found guilty in accordance with the general principles of criminal liability laid down in the General Part of the Code.

Furthermore, even after the liability to punishment is established, mechanical imposition of sentence is not what is expected of a Judge, simply by referring to the punishment mentioned in the pertinent article of the Special Part. Those who administer justice are in fact dealing with ‘criminals’ rather than ‘crimes’ with ‘human beings’ rather than with ‘cases’. They are expected to individualize their decisions. To this end, they must bear in mind the provisions of the General Part; since these provisions, more than those of Special Part, will enable them to arrive at a decision truly reflecting the circumstances of each individual case. For example, Art.665 of the Special Part prescribes 5 years imprisonment for an crime of Theft. It does not mean that whoever commits theft should be sentenced for 5 years imprisonment.  Therefore, in order to decide whether, in a particular case, imprisonment should be ordered for 5 years or for six months, or less than that, the Court must of necessity, has to make reference to the General Part. Moreover, as any action taken under the law must serve the purposes of law, those who administer justice will have to satisfy themselves that their decisions are really capable of achieving these purposes as defined in the General Part. In other words “punishments have to be tailor-made” for each and every criminal having regard to his personal circumstances and other relevant matters in order to bring him back to the society as a law abiding citizen.

3. 4. Classification of Crimes under the Criminal Code

Generally, offences may be classified based on two criteria:

1. Classification based on the “Seriousness of the Crimes”.

2. Classification based on the “Subject matter” of the Crime.

• Classification based on the ‘seriousness of the Crime’:

Crimes are generally classified into different categories according to varying degrees of seriousness. For example, English Law classifies offences into treason, felony and misdemeanors.

Treasons are the most heinous, although the rarest species of felony. Anything done in the nature of an attempt to displace the governing body is classed as Treason. It is a breach of duty of allegiance to the sate. This crime finds its place in the penal codes of every country ‘as a crime against the state’. ‘Felony’ is a serious criminal offence punishable by at least one year imprisonment. ‘Misdemeanor’ is a criminal offence which is less serious than a felony, and is usually punishable by no more than a year in a country jail, and /or a fine, restitution or some other minor penalty. These include all offences which are not felonies and treasons.

The Criminal Code of FDRE has not adopted such a ‘tripartite’ distinction but simply classifies crimes into various titles on the basis of content rather than on the scale of punishment. Although an explicit distinction is not made between crimes, the range of punishment implies the gravity of crimes. “Crimes of very grave nature” are punishable with ‘rigorous imprisonment’ in Central Prisons for a period of one to twenty five years (Art.108) “A crime of not very serious nature” may subject to special provisions that may face ‘simple imprisonment’ for a term of ten days to three years (Art. 106), subject to Special provisions that may extend the period beyond three years. “Petty offences” on the other hand, are punishable with fine or arrest for a relatively shorter period of one day to three months (Art .747), subject to certain aggravating exceptions (Art.767-769).

The three variations in the deprivation of liberty , namely, ‘rigorous imprisonment’, ‘simple imprisonment’ and ‘arrest’ apparently  denote a de facto classification into ‘very serious crimes’, ‘not very serious crimes, and ‘petty offences’.

• Classification Based On the “Subject Matter” Of The Crime:

A more clear cut and explicit kind of classification of crimes that is found in the Criminal Code is based on the content or subject matter of the crime. The object of the criminal law is to protect the “interests” of the state, the community and the interests of the individual in order to ensure peace and security .Therefore, crimes against such interests are kept under various Titles. The classification mainly makes distinction between “crimes” in Part II   (special part) of the Code and ‘Petty offences’ embodied in Part III of the Code entitled ‘The Code of Petty Offences. Further, the Special Part of the Code organizes the various interests to be protected in the following order:

• Interests of the ‘State’: Crimes against state or against National or international interests, Arts. 237-374.
• Interests of the ‘Community’: Crimes against the Public Interests or the Community Arts.378 – 537.
• Interests of the ‘Individual’: Crimes against the individuals and the Family Arts.538-733.

The individual interests of a person   protected under the Code include his life, his person (body), his liberty, his honor, his morals, his family, his property etc.

• The Petty Offences:

A ‘petty offence’ is an infringement of a mandatory or prohibitory provision of a law or regulation issued by a competent authority or a minor offence which is not punishable under the Criminal Law. Such acts or omissions are made punishable under the Petty Code.

The policy underlying the classification of crimes under the Criminal Code of FDRE, 2005, can be better understood from the following observation made by the drafter of the 1957 Penal Code Prof. Jean Graven in this regard…

“… abandoning the famous ‘tripartite division’ of the offences according to their supposedly different natures into felonies, misdemeanors and petty offences, the new Ethiopian law has deliberately enthroned the identity of the nature of the offences retained in the Penal Code, all of them simply called “offences”, and the unity of all general principles, which are applicable to them. On the other hand, it has detached from them the minor, formal and petty offences, which form the subject matter of the Code of Petty Offences. Here the natural distinction between evidently different fields is instantly perceptible…”

2.1. Crime is a Deceiving Concept

There are no easy explanations for the phenomena collectively called crime. Crime is deceiving concept because it covers an enormous range of human behaviour. Crime may be associated in the public mind with pick-pocketing, robberies, house-breakings, and riots, but crime is also a businessman placing bribe to win a city contract. It is also syndicate-controlled loan shark taking over a business from a businessman who couldn’t meet the exorbitant repayment schedule. It is quiet a student suddenly a rifle to the top of a university tower and begins shooting at those below. Crime is often mistakenly thought of as the vice of the few. It is not. It is everywhere in the society. It is in the bed room of a married couple where wife battering and marital rape happen, among the family members where child abuse and incest happen on the road where eve teasing and cheating happen, at work place where a variety of criminal behaviour is found including abuse of power, corruption and sexual harassment. Therefore, trying to find a single comprehensive answer to “the crime problem” is, like trying to lump together measles and schizophrenia, or lung cancer and a broken leg.

The concept of crime has always been dependent on public opinion.  In fact “law” itself reflects public opinion of the time.  Obviously, every society formulates certain rules to regulate the behavior of its members, the violation of which is forbidden.  However, the problem arises as to what acts should be forbidden, or what acts should be selected for punishment by the society or the state, in other words what acts should be declared as crime.  According to Terence Morris, “Crime is what society says is crime by establishing that an act is a violation of the criminal law.  Without law there can be no crime at all, although there may be moral indignation which results in law being enacted.”  Therefore, in order to know the nature and the content of crime we must first of all know what ‘Law’ is, because the two questions “Crime” and “Law” are so closely related with each other that it is very difficult to understand one without knowing the other.  “Law”, is the aggregate of rules set by men politically superior, or sovereign, to men as politically subject.  Law is a command enjoining a course of conduct to be observed by all the members of the society and is backed by a sanction.  The command may be of a sovereign or the command of a political superior to political inferiors, or the command of a legally constituted body or the legislation duly enacted by a legally constituted legislature and addressed to the members of the society in general.  That being the definition of law, disobedience or violation of law may be termed as crime.  But all violations of law are not crimes for an act done in breach of law of contract, personal law or a civil law, are only civil wrongs leading to civil proceedings. Only such violations, which endanger the safety of individual, his liberty and property, are crimes. To common man crimes are those acts which people in society “consider worthy of serious condemnation”. Therefore, crime is an act which both forbidden by law and the moral sentiments of the society.

According to Wechsler, “the purpose of penal law is to express the social condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it”.  To understand this explanation of Penal law three questions have to be answered:

1. What kind of conduct is ‘forbidden’?
2. What kind of ‘formal social condemnation’ is considered appropriate to prevent such conduct?
3. What kinds of ‘sanctions' are considered as best calculated to prevent officially out lawed conduct?

• Forbidden Conduct:

The concept of forbidden conduct is not a static one; it changes with the change of social norms. The very definition and concept of crime is not only according to the values of a particular group and society, its ideals, faith, religious attitudes, customs, traditions and taboos but also according to the form of government, political and economic structure of society and a number of other factors. For instance, what is a sex crime in India and Eastern countries may be a sweet heart virtue in West and Scandinavian countries.  What is an offence against property in a capitalist culture may be a lawful way of living in a socialist society.  What is permissible in a free and affluent society may be a pernicious vice in a conservative set up.

The notion about crime also changes with time.  What is an offence today may not be an offence tomorrow and what has not been an offence till yesterday may be declared a crime to day.  For example, polygamy, till the passing of the legislation prohibiting a man from marrying again during the subsistence of the first marriage, marrying more than one wife was no crime. Now it is a punishable crime under the Criminal Code.  Another example is “abortion”.  Forcibly aborting the foetus from the womb of the mother for reasons whatsoever was considered as a great sin against the humanity by all societies till recent past.  Now, with the advancement of medical sciences termination of pregnancy on medical grounds has been legalized and approved by many though not all.

Thus, the concept of crime is ever changing.  What was not crime yesterday may be a crime today and what is a crime today may not remain a crime tomorrow.  Therefore, social changes affect the criminal law in many ways, such as:

• Through changes in structure of society, especially in its transition from rural self-contained and relatively sparsely populated to a highly urbanized and industrial pattern.
• Through changes in the predominant moral and social philosophy.
• Through developments in science especially in Biology and Medicine.

• Impact of Social Change on the Law of Crimes:

Criminal offences dealing with protection of life and liberty have essentially remained unchanged throughout all ages all over the civilized world.  Only certain crimes against human body like abortion and sexual crimes took new forms due to changes in the attitude of the society towards such conduct.

The crimes against property have undergone a lot of profound changes mainly as a result of transformation of a primitive agricultural society into a commercial or industrial society.  The original crime ‘theft’ has been widened to include embezzlement, fraudulent conversion that is designated as “White Collar Crimes”.  The concept of property has widened including not only physical things but also varieties of other assets i.e. even the things which are not capable of being taken away physically.  These include electricity, shareholders claims, Copyrights, etc., which have become subjects of such crimes.

2.2. Crime is A Multidimensional Problem:

Crime is not just the responsibility of the police, the courts, and the prisons. Crime cannot be controlled without the active support of individual private citizens, schools, businesses, and labour unions. This is so because crime has its effects on everyone-not just the criminal and his victim. The fear of crime has affected basic patterns of life of people. People in society are in need of an efficient system that is capable of checking the incidence of crime in the society so that they can feel a sense of safety and security which is essential for a peaceful living. Therefore, the problem of crime has been the concern of more than the law enforcement machinery.

Clearly, then, crime has many dimensions.  To the student of crime, it is a problem of explanation and interpretation.  To the legislator, it is a problem in definition and articulation. To the police, it is a problem in detection and apprehension.  To the judge, it is a problem of due process and of punishment.  But, it is a problem too for more than these.  It is a problem to the person who is engaged in breaking the law; it is a problem to the victim who may be deprived by it of life, possessions and even the pursuit of happiness.  And finally to others it is a threat to tranquility and a disturbance in the social order.  (__Robert Quiney)

2.3 Definition of Crime:

The transient nature of crime makes it very difficult to derive any precise definition of the term.  In spite of the attempts made by various jurists, a satisfactory definition of crime has not been achieved.

• Literal Meaning of Crime:

The word “Crime” was originally taken from a Latin term “Crimen” which means “to charge”.  The Greek expression “Krimos” is synonymous to a Sanskrit word ‘Krama’ which means “Social order”.  Therefore, in common parlance the word crime is applied to those acts that go against social order and are worthy of serious condemnation.

• General Meaning of Crime:

The Oxford English Dictionary defines crime as “an act punishable by law as forbidden by statute or injurious to public welfare”.  It is a very wide definition including many things in the present day complex society.  Any act like selling adulterated food, molestation of women or young children in buses and railways, misleading advertisements can be said to be injurious to public welfare.  It is too wide a definition and fails to precisely identify the thing it purports to define.  Though there is no precise definition for crime, we can still have an understanding of the word by examining different definitions put forward by different jurists.

• Crime is a “Public Wrong”—Blackstone:

Blackstone, (1968) has defined crime as “an act committed or omitted in violation of a public law either forbidding or commanding it”. Thus, according to Blackstone crime is an act in violation of public law.  But what is ‘public law’?  It has several accepted meanings.  According to Austin, (yrar) public law is identical with “Constitutional law”.  This being so, the crime would then mean an act done in violation of Constitutional law.  The definition would thus cover only political crimes namely crimes against the state, and crimes like arbitrary deprivation of life, personal liberty and property, leaving aside a vast area of other criminal behavior.  Germans interpret public law to include both constitutional law and criminal law.  As we have already seen, it is fallacious to define crime with the help of constitutional law.  And it would be meaningless to define crime using the expression “criminal law”. It would rather amount to arguing in a circle. What is a crime? - Violation of criminal law.  What is criminal law? -The law that deals with “Crimes”.  In this sense also Blackstone’s definition fails to define crime satisfactorily.  There is yet another accepted meaning of public law given by Kenny, (year) According to him, public law means all “positive law” or “municipal law” which means “any law made by the state”.  Then crime would mean an act done in violation of all positive law which is not true for many acts though done in breach of law are not crimes.  Thus it may be said that, whatever meaning we attach to the expression “public law”, the definition of Blackstone proves unsatisfactory.

Blackstone, (year) perhaps visualizing the inadequacy of his first definition of crime tried to give a modified definition and said, “A crime is a violation of the public rights and duties due to the whole community, considered as a community in its social aggregate capacity”.

The second definition of Blackstone proceeds in terms of “public rights and duties” replacing the phrase “public law”.  In fact even this definition is not without error.  In addition to that Stephen, while editing Blackstone’s Commentaries committed further error as he slightly modified the definition and reconstructed it in the following words: “A crime is a violation of a right, considered in reference to the evil tendency of such violation as regards the community at large.”

Stephen (year) committed two errors in modifying Blackstone’s second definition:

1. He dropped the word ‘duties’ from Blackstone’s definition narrowing down the scope of crime to the violation of rights only, whereas criminal law fastens criminal liability even on those persons who omit to perform duty required by law, for example, failure to report the preparation or commission of an crime (Art. 39 & 443 of the Criminal Code) failure to appear before courts as a witness or an accused person (Art.448 of the Criminal Code) a parent’s gross neglect in bringing up a child (Art. 659 of the Criminal Code), failure to provide the maintenance allowances stipulated under (Art. 658 of the Criminal Code), etc.

Similarly, are other acts, which do not violate any one’s right but are nevertheless crimes, e.g., being in possession of arms and ammunition, (Art.808 of the Criminal Code) carrying of prohibited arms (Art. 809 of the Criminal Code).

2. The second error committed by Stephen in editing Blackstone’s definition lies in the expression evil tendency of such violation as regards the community at large.  It means that crimes are breaches of those laws, which injure the community.  However, all the acts that are injurious to the community are not necessarily crimes.  Even transactions of civil nature can injure community.  For example, where the Directors of a company fail to manage its affairs properly, the mill is closed, workers are rendered unemployed, production of a commodity essential for the society is stopped—will it not be an act which is injurious to the society?  But can we prosecute the Directors for any crime?    The answer to this will probably be “NO”.

Thus, as has been rightly pointed out by Kenny, “it is possible that, without committing any crime at all, a man may by breach of trust or by negligent mismanagement of a company’s affairs, bring about a calamity incomparably more wide spread and more severe than that produced by stealing a cotton pocket hand-kerchief, though that petty theft is a crime.”  Therefore, to define crimes as those breaches of law which injure the community is not completely true.

• CRIME is A “Moral wrong” – Stephen:

According to Stephen (year) crime is “an act forbidden by law and which is at the same time revolting to the moral sentiments of the society”.  Defining crime, as something against the moral sentiments cannot be accepted because there are acts though not immoral, classified as highly criminal, e.g., Treason i.e.  ‘anything done to displace the governing body of state.’  Treason is graded as a crime in the highest degree and considered as a heinous crime by all Penal Codes.  This is not because the moral sentiments of the society are being affected but for the security and stability of the government.  Similarly, there are acts, which are highly immoral but not criminal. For example, an expert swimmer stands by the side of a river and sees a child drowning in the river and makes no effort to save the child and the child dies by drowning.  His act may be highly immoral but it is neither a criminal nor a civil wrong.

• Crime is A “Procedural Wrong” –John Austin:

Austin (year) and some writers (e.g.…) define crime in terms of the proceedings adopted in such cases.  Austin defined crime while making a distinction between civil and criminal wrongs.  He observed, “A wrong which is pursued by the sovereign or his subordinates is a crime.  A wrong which is pursued at the discretion of the injured party and his representatives is a civil injury”.

The definition does not explain a number of crimes under the Criminal Code in which the prosecution could be initiated only at the instance of injured party as is done in the case of civil wrongs.  For example, in case of Adultery (Art. 618 Criminal Code) no court shall take cognizance of the crime except on a complaint made by the injured spouse (Art 13 Cr. P. C). Thus, even Austin’s definition of crime in terms of procedural wrong also is not without defect.

• Crime is a “Creation of Government Policy”:

‘Russell’ has rightly observed that, “to define crime is a task which has so far not been satisfactorily accomplished by any writer.  In fact, criminal offences are basically the creation of a criminal policy adopted from time to time by those sections of the community who are powerful or astute enough to safeguard their own security and comfort by causing sovereign power in the state to repress conduct which they feel may endanger their position”. We find ample evidences supporting the observation made by some of these are Kenny’s “Outlines of Criminal Law” (1966, 19th ed., by J.W. Cecil Turner, Cambridge University Press, UK) brings out the following examples in this regard.

In the first place, as the history of the early Roman law reveals, an offensive conduct may become recognized as a crime as a result of the combined effect of a number of different social forces.  For instance, in a primitive monarchy or Oligarchy when all nominal state power rested in the hands of a personal sovereign or a small group of men, anything done in the nature of an attempt to displace the governing body was classed as “Treason” and such   behavior is criminal in the highest degree.  Such an attempt would be repressed by all means available to the ruling element.  The person who commits treason is called a traitor; and any one who slew him was held guiltless.

Another example is that of the English Law of Outlawry.  The ancient city-states of Europe depended largely on the strength and construction of their “City Walls”.  For this reason erecting private buildings near the City Walls was prohibited since these might hinder the movements of defending troops within the city walls and offer cover to approaching enemies from outside.  The maintenance of these walls in a state of efficiency was so important that at Rome religious superstition was invoked for their protection and they were classed as “res sanctae” (things sacred).  It was a capital offence to harm them or even to climb over them to enter the city instead of coming through the gates in the proper way.

Different social forces and impulses affected the development of law everywhere.  Such forces varied from the legislative power of the dictator to the unidentified pressure of public opinion.  An illustration of the dictator’s power bringing a change in the law is of Emperor Claudius for his private purposes.  Desirous of marrying his brother’s daughter Aggrippina, he brought a change in the ‘law of incest’, permitting marriage between a niece and her uncle leaving the rest of the law relating to such prohibited marriages i.e. between uncles and nieces or aunts and nephews incestuous.

Therefore, Kenny (year) opined that, so long as crimes continue to be created by the government policy, it was difficult to give a true definition of the nature of crime.  Hence, he resorted to broadly describing a crime as he realized that it is nearly impossible to give a scientific definition of crime.  While doing so, he kept in view an all-important aspect of the matter i.e. “the controlling power of the state with regard to criminal prosecution is an undeniable fact”.  According to him “Crime” has the following three characteristics:

1. A crime is a harm brought about by human conduct, which the sovereign power in the state desires to prevent,
2. Among the measures of prevention there is threat of punishment,
3. Legal proceedings of special kind (criminal proceedings) are employed to decide whether the person accused did in fact cause the harm and is according to law to be held legally punishable for doing so.

• Crime Is A “Legal Wrong”:

Since no satisfactory definition of crime acceptable and applicable to all situations could be derived, penal statutes define, specifically, different criminal behaviors, which they purport to check.  Even the Criminal Code of FDRE, 2005, which has codified the great bulk of the criminal law of the country, does not give any standard definition of crime.  Art. 23(1) simply states that,

“A crime is an act which is prohibited and made punishable by law.

In this Code, an act consists of the commission of what is prohibited or omission of what is prescribed by law.”

This provision is nothing but a statement of fact, which is made for the purposes of the Code, and cannot be regarded as a definition of crime. It refers to the specific kinds of conduct prohibited under the Special Part of the Code.

‘Crime’ Distinguished From ‘Civil Wrongs’:

“Crimes” are said to be harms against the society and are therefore, considered as graver wrongs. “Torts” (cases of non-contractual liability) are wrongs against individuals and are treated as lesser wrongs. “Breaches of contract” are also civil wrongs, which result from non-performance of contractual obligation.

“Tort” is a private wrong and the remedy available is reparation for the injury suffered and not punishment.  “Breach of contract” entails civil liability of the defaulter that may result in forced (specific) performance, cancellation of the contract or payment of damages.  But unlike criminal law, the state will not be involved in the dispute or litigation other than legislating the legal framework that facilitates contractual transactions, providing remedies in case of non-performance and adjudicating over the case if the creditor files a suit.  Moreover, the remedies unlike criminal law do not involve punishment but performance of obligations and payment of damages.

There are several factors that distinguish torts from crimes.  However, torts also include certain harms or damages caused by fault that are designated as offences like assault, defamation, negligence etc.  But unlike criminal offences non-contractual liability may arise irrespective of fault (strict liability) or due to harm caused by others for whom a person is answerable (vicarious liability) as in the case of harm caused by one’s child, one’s employee in due course of his work, etc., Tortious liability is said to be “strict” (or irrespective of fault) in the following instances.

a)      If it arises from acts that do not constitute fault, or

b)      Due to harm caused by things owned or possessed by a person namely, animals, buildings, machines, and vehicles and manufactured goods.

Further, faults that result in tortious liability are wider in scope of application than offences, because in addition to offences the term “fault” for the purpose of “tortious liability” may include violations of private law (Art. 2035 ECC), Professional fault (Art. 2031, ECC) and other faults that are considered to be faults on the basis of the “standard of a reasonable man’s conduct under similar circumstances” (Art. 2030 ECC).  In short, criminal liability invariably requires moral guilt (intention or negligence) and personal act or omission while non-contractual liability doesn’t.

Another important difference lies in the fact that “analogy” is forbidden in criminal cases (Art. 2 (1), The Criminal Code, 2005), but may be permissible in Civil (i.e. contractual and tort) cases where legal provisions embody illustrative (rather than exhaustive) lists.  The distinction between the two also lies in the degree of certainty of evidence.  Criminal cases require certainty beyond reasonable doubt while the preponderance of evidence in the balance of probability suffices in civil cases.

In addition to these, the following are some more important legal aspects which distinguish these legal wrongs:

Nature of wrong:

Crime is a public wrong i.e. a harm done against the society. A ‘tort’ is a private wrong committed against an individual generally or the public in a given locality. A ‘breach of contract’ is committed when any term or condition of an agreement enforceable by law is violated by any one of the parties to the agreement. Therefore, this too is a private wrong committed against a specific individual.

Nature of the Right Violated:

In a crime and a tort there is a breach of ‘right in rem’ whereas in a breach of contract there is breach of ‘right in personum’.

Origin and Nature of the Duty:

In a crime the duty not to cause harm is fixed by the state. In tort such Duty is fixed generally by the operation of law where the law of non-contractual liability remains un-codified and by the state where it has been incorporated in codified law (Art.2035ECC).Under criminal law the duty is towards the whole world and it arises on account of the statutory enactments. In case of torts the duty is towards the public generally. Duty either arises on the basis of statutory enactments (Art.2035ECC) or on the basis of general responsibility towards the society and it is independent of any personal obligation under a contract. Whereas, in case of breach of contract the duty is fixed as a result of contractual relationship of the parties and the duty is specifically towards the contracting party. The duty is breached as the result of failure to perform contractual obligation.

Consent of the Victim:

Consent of the victim to the injury caused is a qualified defence in criminal law. (Art 70 Criminal Code). In torts, consent of the plaintiff to the alleged injury nullifies right to remedies. A contract it is founded upon consent. Therefore, if there is consent to the breach of any term or condition of the contract, the plaintiff forgoes his right to claim the remedies.

The Element of Intention:

Intention is an essential element of crime (Art.57 and 58 of Criminal Code).  Intention may form one of the ingredients of tort but not an essential precondition for the Tortious liability.  In an action for breach of contract whether the breach   was intentional, is an irrelevant question.

The Element of Negligence:

Negligence attended with criminal lack of foresight amounts to a crime (Art.59 Criminal Code). Mere negligence may amount to a tort (Art.2029 ECC). There is no question of negligence in an action for breach of the obligation arising out of a contract.

Relevancy of Motive:

Motive may be a factor for consideration in deciding the quantum of punishment in criminal liability. Motive is taken into consideration in deciding tortious liability. Motive is irrelevant (1717 ECC) in an action for breach of contract. A breach is a breach with whatever motive it was committed.

 

Initiation of Legal Proceedings:

Criminal proceedings are conducted in the name of the state. The state steps into the shoes of the victim as the protector of interests of its inhabitants. In case of the other two civil wrongs, it is the injured party that brings the action against the wrong-doer.

Remedies Available:

The criminal is punished by the state. The punishments may range from fine, compensation through imprisonment of different kinds to capital punishment. In torts the remedies available are damages, compensation, restitution and injunction. For breach of contract cancellation of contract, damages, specific performance and forced performance of contract are the available remedies.

All these distinctions show a difference in the legal proceedings, which are taken upon the commission of a wrong.  But they do not indicate any essential intrinsic difference in the nature of ‘crimes’ and ‘torts’.  Some times the same injury such as negligence, defamation, amulet etc, may fall under both the categories. Therefore, Kenny (year) rightly observes that, “in a way there is no distinction between crime and tort in as much as a tort harms an individual, where as crime is supposed to harm a society.  But then a society is made up of individuals, harm to an individual is ultimately harm to the society”. Writers on English legal history have often mentioned that in early law there was no clear distinction between criminal and civil offences. The two have been called ‘a viscous intermixture’, and it has been explained that the affinity between tort and crime is not the least surprising when we remember in the history of law how late in the history of law there emerged any clear conception of difference between them; this is more, not a peculiarity of the English system, as was pointed out by Maine (year). There is indeed no fundamental or inherent difference between a crime and a tort. Any conduct which harms an individual to some extent harms society, since society is made up of individuals; and therefore all that is true to say of crime that it is an offence against society, this does not distinguish crime from tort. The difference is one of degree only, and the early history of the common law shows how words which now suggest a real distinction began rather as symbols of emotion than as terms of scientific classification. Thus the word ‘felony’ originally indicated something cruel, fierce, wicked or base. As Maitland (year) says: ‘In general it is as bad a word a as you can give to man or thing, and it will stand equally well for many kinds of badness, for ferocity, cowardice, craft.’