Criminal Law and

Criminology

Instructor: Abreha Mesele (Asst.

Prof)
2021
Chapter One
 Introduction to Criminal Law
• Criminal Law is the body of law
defining crimes and their respective
punishments against the community at
large, regulating how suspects are
investigated, charged, and tried, and
establishing punishments for convicted
criminals. Criminal Justice
Administration
• The criminal law identifies, defines
and declares the conducts that it
seeks to prevent and prescribes the
appropriate punishments for them.
 The Place Of Criminal Law In Criminal Science

• “Crime” is an offence committed by

an individual who is a basic unit
of a society. Therefore, study of
crime i.e. Criminal Science” is a
social study.
• Aims of Criminal Science
– To discover the causes of criminality,
– To devise the most effective methods
of reducing the amount of criminality,
– To perfect the machinery for dealing
with criminals.
 Branches of Criminal Science
• Criminology studies about the causes of
crimes and the means of responding to such
phenomena and respective consequences to
society and individual victims .
– Criminal Biology – Crime is caused by the inherent biological
traits obtained genetically. Hereditary
– Criminal Sociology –asserts that crimes are caused by societal
learning and environmental factors. Criminal anthropology

• Penology /criminal policy –are designs

crafted to prevent the commission of crimes,
means of treatment, perpetrators and
procedure of handling such individuals by
formulating the causes of crime and
institutions(prison systems)
– Deals with treatment, prevention and control of
crimes
 Cont’ed
• Criminal Law- is an agency in which
Criminology and Penology, are
implemented through the
instrumentality of ‘Criminal law’
using different punishments
– Substantive Criminal Law
– Adjective /Procedural Criminal Law

• Re-socialization and rehabilitation to the welfare

of the society
• Sociological approach to criminology is the modern
approach(where it study social behavior, systems
and structures(social –structural and social
process)

• Refer to Criminology and Sociology Course for further detail

Enacting criminal law: Whose Power?
• Power formula under the FDRE
Constitution?(article 50(8) and 52(1)
cum 55(5) of the FDRE Constitution)
– All powers not given expressly to the
Federal Government alone, or
concurrently to the Federal Government
and the States are reserved to the
States.
– The States may, however, enact penal
laws on matters that are not
specifically covered by Federal penal
legislation.
• What about criminal procedure code?
 Nature And Scope Of Criminal Law
• According to Edwin Sutherland, Criminal
Law of a place can be defined as “a body
of special rules regulating human conduct
promulgated by state and uniformly
applicable to all classes to which it
refers and is enforced by punishment.”
• Elements Criminal Law for its efficient
Implementation
– Politicality –state prescribed command and
sanctions enforced
– Specificity-strict construction of terms
– Uniformity-equal treatment and protection
– Penal sanction –liabilities (penalties )
 General Objectives of Criminal Law
• Protection of Persons and Property- jus in rem-
security order & peace
• Deterrence(special/individual and general/market) of
Criminal Behavior-article 18 of the FDRE
Constitution
• Punishment of Criminal Activity
• Rehabilitation of the Criminal(Arts. 190-210 of the
Criminal Code)
• Class Group Discussion:
– Compare and Contrast the Objective of the 1957 Penal Code
and the 2005 FDRE Criminal Code? Preamble of both Codes
– What specific objectives of punishment are fulfilled in
death penalty? Should we still retain it as a type of
punishment in our Criminal Code? Article 6(5) of the
ICCPR, article 15 of the FDRE Constitution, article 117
of the FDRE Criminal Code( Retentionist vs. Abolitionist)
 Cont’ed
• Purpose is the ultimate objective
to be attained. Art. 1 para. One
• Aims are activities targeted to
bring about the purpose
– Prevention –Due notice
– Deterrence -Punishment
– Reform
• Function is specific activities
actually implemented whereas
purposes is the ultimate end of
these activities.
 Criminal Law, Private law and Morality-
Distinguished
• A wrong is an act forbidden by the
society. It is a violation of
norms(values)
• Question: What is morality? Right/Wrong
dichotomy? Subjective, objective and
inter-subjective elements
– Moral Wrongs -are forbidden acts by the
society. However, not all moral wrongs are
legal wrongs. Are reprehensive acts
– Legal Wrongs
• Public wrong (criminal wrong)- the state interferes
by itself. What about upon complaint crimes?
• Civil Wrong (private wrong)-the state takes action
against the wrongdoer
 Morality and Criminal Law
• Both aimed at maintaining social
order. Most legal wrongs will have
serious consequences when violated
towards peace and order than moral
wrong.
• Hate the crime not the criminal
taken from the Gandhian Philosophy
which stated hate the sin not the
sinner. Hence, reformative justice
is the philosophy of the state.
 Class Discussion :
Moral vs. Legal Wrong
• There were many people standing on the
bank of the river Blue Nile. Among them
there were several people who knew
swimming. Suddenly, a woman fell into the
water and started to scream for help. None
of the onlookers made a move to help her.
In front of all of those people the woman
drowned and died.
– Did any one of the people standing on the bank
of the river have duty to save the woman from
drowning?
– If at all they committed a wrong, what kind of
wrong was it? Can you prosecute any of those
people for the death of the woman?
– Can the moral duties make legal duties?
 The Concept of Crime
• Crime is an ‘act’ or ‘omission’ which is
prohibited by criminal law and the moral
sentiments of the society.
• Spatiotemporal nature of crime(public
opinion)
• Wechsler –the purpose of criminal law is to
express the social condemnation of forbidden
conduct, buttressed by sanctions calculated
to prevent it.
• Government structure, economic and other
social ties matters to define a forbidden act
– Ex. Abortion in time
• Social Change on the laws of crimes
– Theft-in primitive and modern societies
 Cont’ed
• Crime is a multidimensional problem –
becomes the concern of all people under
a sovereign than law enforcement
machineries. Perspective wise
• Definitions of crime
– Literal meaning of crime-crimen (Latin) to
charge. Greek Expression Krimos is
synonymous to a Sanskrit word Krama means
social order. Hence, crime is an act which
is against the social order worthy of
serious condemnation.
– General meaning of crime
• Oxford English Dictionary – crime is an act
punishable by law as forbidden by statute or
injurious to public welfare.
 Cont’ed
– Crime is a public wrong –Blackstone(1968)
• Crime as an act committed or omitted in violation of
a public law either forbidding or commanding it.
– Crime is a moral wrong –Stephen
• Crime is an act forbidden by law and which is at the
same time revolting to the moral sentiments of the
society. Treason is not immoral, drowning of a
child.
– Crime is a procedural wrong –John Austin
• A wrong which is pursued by the sovereign or his
subordinates is a crime. Whereas a wrong which is
pursued at the discretion of the injured party and
his representatives is a civil wrong. What about
crimes upon complaint vs. crimes of accusation
(11CPC)(212 FDRE CC cum 13 CPC)?
– Crime is a creation of government policy
– Crime is a legal wrong
• Article 23 FDRE Criminal Code
 Crime vs. Civil Wrong
• Crimes are against the societal order whereas
civil wrongs are against individual interest.
• Example
– Criminal law vs. Tort law
• Strict construction –analogy
• Purposes (compensation and peace and order )
• Preponderance vs. beyond reasonable doubt
• Public prosecutor vs. plaintiff
• Nature of wrong –private vs. public
• Nature of rights violated (right in rem vs right in
personanum )
• Origin and nature of duty
• Consent of the victim
• Intention and negligence
• Motive
• Initiation of legal proceedings
• Remedies available
 Standard/degree of proof
• የሰ/መ/ቁ 104923
• በወንጀለኛ ህግ አንቀፅ 692(1) መሰረት የማታለል ተግባር ተፈፅሟል ለማለት መሟላት ባቸው
ሁኔታዎች
– በበቂና በአሳማኝ ሁኔታ ሲረጋገጥ ስለመሆኑ
• የወንጀል ህግ አንቀፅ 23(4)፣32፣40፣57 እና 58(1) and የወ/መ/ሥ/ሥ/ቁ/. 141፣142 እና 149
• Clear and convincing vs. Beyond reasonable doubt
– Art.134(2) Cr. P.Code
– Art.20(3) FDRE Con
– Art. 13(2) cum 9(4) of the FDRE Con.
– The Committee has noted a lack of information regarding article
14, paragraph 2 and, in some cases, has even observed that the
presumption of innocence, which is fundamental to the protection
of human rights, is expressed in very ambiguous terms or entails
conditions which render it ineffective. By reason of the
presumption of innocence, the burden of proof of the charge is on
the prosecution and the accused has the benefit of doubt. No guilt
can be presumed until the charge has been proved beyond reasonable
doubt. Further, the presumption of innocence implies a right to be
treated in accordance with this principle. It is, therefore, a
duty for all public authorities to refrain from prejudging the
outcome of a trial.
 Class Discussion
• “Crime is any form of conduct which is
forbidden by law under pain of
punishment”.
• Explain the concept of crime as a breach
of public right. Does this explanation
satisfactorily identify all crimes?
• “Crime is the creation of government
policy”. Critically evaluate the statement
giving practical examples from the
experiences in the development of
Ethiopian Criminal Law.
• Enumerate the specific legal aspects that
differentiate crime, tort and a breach of
contract.
Chapter Two
 The Development Of Criminal Law Of Ethiopia
• The Fewuse Menfessawi/Canonical Penance/Spiritual
Remedy
– During Emperor Zar’a Ya’equob(1434-1468) first codified law
– Only 62 articles on criminal matters
– adopted from Old Testament of the Bible
• The Fetha Negest/the law of the kings
– Had two chapter on religious and secular matters
– Intention and negligence
– Proportion between fault and sanction
– Individualization of punishment
– Formally incorporated into the legal system in 1908 during
Emperor Menelik II
• Drawbacks of FN was retributive
– Lacks systematization
– There were no specific and general and exception and
principle
– Aggravating and extenuating were not clearly regulated
– Organized haphazardly
– Had limited circulation (clergy only )
 Cont’ed
• 14th and 15th century King Amde Tsion
(r. 1314-1344) -Ser'ate Mengist, the
'Law of the Monarchy (short collection
containing altogether twenty-one
articles of law, which appears to record
a continuous legislative activity which
started in the 14th Century). The Law
Consists in Majority Cases Religious
Affairs but Civil and Penal Matters were
also found scattered in limited manner.
 Cont’ed
• The Ethiopian Penal Code, 1930.
– Regulates Era of Emperor Menelike II
and Empress Zewditu
– Was aimed at retribution –pay the price
– Attributes of the Code
• Crimes and punishments were clearly defined
• Penalties were softened and improved by
introducing fine to economic situation of
the country
• Protected interest includes (special part
(the state and community, persons, and
property) petty offences were incorporated
too
• Fetha Negast was the source
• Frenchman drafter (believed )
 Cont’ed
• The Penal Code of the Empire of Ethiopia, 1957.
– Jean Graven (Swiss)-Switzerland
– The 1934 Swiss Penal Code and pre 1957 Swiss Jurisprudence
were the sources
– French Penal Code 1810 secondary source-general format
– The 1951 Yugoslavia Penal Code –military offences
– UDHR and Red Cross Geneva Convention were also
incorporated(international)
• Improvements (collective punishment avoided,
mutilation of human body as a punishment abolished,
presumption of innocence introduced , rules
applicable to young offenders, probation and
suspension of sentences, personal nature of criminal
punishment and measures and more sever penalty for
arson
• Capital and corporeal punishment was retained
• Confiscation was limited only to crimes against the
state
 Cont’ed
• The 1974 Revolution and Criminal Law
– Emphasis for political crimes (Martial Law)
– Crimes like anti-revolutionary and economic
crimes was emphasized
– Jurisdiction was given to Revolutionary
Operations Coordinating Committee at each
Awraja
– Torture was used to compel suspects admit
• Special Penal Code of 1981
– Abolished the military tribunal by
introducing special courts and inculcate
new crimes(armed uprising, breach of trust
by public official, grain hoarding and
corruption etc
 Cont’ed
• Criminal Code of FDRE 414/2004
• Reasons for a new criminal code
– Incorporation of modern legal concepts
• Equality between religion, nations nationalities
and peoples
• Human Rights
• Vulnerable groups protection
– To fill lacunae
• Crimes born out of time and technology
– High jacking of aircraft
– Money laundering
– Corruption and drugs
– Harmful tradition practices against women and children
• To adopt a comprehensive criminal code
• Increment of punishments for certain crimes
• Matters concerning the determination of sentences
• Redefining purpose and objectives
 Cont’ed
• Scheme of the FDRE Criminal Code
– General Part –Part I
• Principles, conditions , defenses and punishments which
are basic tool for the interpretation of the special part
– Special Part-Part II
• Various crimes and penalties
– Crimes against the state or national or international interests
(art. 238-374)
– Crimes against public interest and community (art. 375-537)
– Crimes against individuals and the family (art. 538-661)
– Crimes against property (art. 662-733)
– Petty Offences – Part III
• General
• Special part
• Classification of crimes
– Seriousness of the crime considered (Treason)
– Subject matter (interest of the state, interest of
the community and interest of individual)
 Class Discussion
• Do you think that the Revised
Criminal Code of Ethiopia is close
to the prevailing social values of
Ethiopia? Do the social values of a
country come in the way of
implementation of criminal laws of
the country?
Chapter Three
 Basic Principles Of Criminal Law

• The Principle of Legality(Historical

antecedent)
– Nullum crimen, nulla poena sine praevia lege
poenali (Latin, No crime (can be committed), no
punishment (can be imposed) without (having been
prescribed by) a previous penal law) is a basic
maxim in continental European legal thinking.
– Used in French Revolution as a political right
– there is no crime or punishment without a
pre-existing law that prohibits that
crime’
– Fair warning by duly notifying the crimes
and respective punishments which reduces
arbitrariness
 Cont’ed
– ex post facto – unfairness and does
not bring deterrence effect
– The rule of lenity(all ambiguities in
statutory language be resolved in the
defendant’s favor)
– “nullum crimen sine lege(no law no
offence), nulla poena sine lege(no law
no punishment)” are important
principles inherited from
Roman Law
– non bis in idem ( Prohibition
of Double Jeopardy )
 nullum crimen sine lege
• Certainty in Legislation
– Promotes certainty and definite
where people regulate their
conduct and behavior in order to
avoid the hazard of falling
within the grips of the penal
provisions of laws. Even the
language of criminal law must be
drafted clear, certain and
unambiguous
 Cont’ed
• Accessibility of the law
– Must be certain and knowable and duly
publicized in a language the society can
understand.
– What is Law in Ethiopia? One requirement is
publication in Negart Gazeta.
• Rule of strict Construction
– Prohibition of analogy
– Principle of strict interpretation
• Ambiguity/unclear
• Doubt of meaning
– Grammatical or logical interpretation
– Historical interpretation
• Doctrinal –academic interpretation
• Judicial-in the course of judgment
• Legislative-
 Non-retroactivity of penal laws
• History
– first formulated in Article 8 of the French
Declaration of the Rights of Man of 1789, which
reappeared in the French Constitution of 1791,
and remains in the French Code Penal
– 1651, Hobbes wrote:
• “No law, made after a fact done, can make it a
crime ... For before the law, there is no
transgression of the law”.
– Article 1, section 9(3) of the American
Constitution which prohibited ex post facto laws.
Article 7 of the European Convention on Human
Rights provides
– Art. 15 ICCPR
– Art. 22 of the FDRE Constitution and art. 5 of
the Criminal Code
• Application of the more favourable law
 Non bis in idem( Prohibition of Double Jeopardy )
• Art. 23 of the FDRE Constitution
• The previous acquittal or previous
conviction may be pleaded by the
accused as a bar to the subsequent
trial.
• Multiple punishment ?
 Class Discussion
• Compare Art. 22 of the FDRE and
Art. 5 of the FDRE Criminal Code
• Is Interpretation of law totally
ruled out within the meaning of
principle of legality? To what
extent judges can be flexible?
 Equality of What?
• Humans are essentially equal , of equal
worth and should have this ideal
reflected in the economic , social and
political structures of society.
• Formal Equality
– Treat equals equally and unequal unequally.
Aristotle
• Substantive Equality – Content wise
• Proportional Equality
• Moral equality
• Equality of Opportunities
• Equality of resource- distribution
• Equality of welfare
 The Principle of Equality

• All men are equally the children of God

and Equal in his sight despite their
widely differing temporal circumstances.
Harris, the quest for equality ,1960
• Developed in the process of Roman Law.
Non-Romans and Romans(governed by the jus
civile (Civil Law) were treated
separately.
• Romans Developed Jus gentium (law of the
nations) to rule peoples they conquered.
These laws were derived from principles of
justice from natural laws. Consequently,
slaves were considered to have human
rights to be treated fairly and decently.
 Meaning of the Equality Principle
• Equality before the law (treatment )
procedural equality - justice
– Application and enforcing of laws and
the operation of the legal system.
– Nondiscrimination clause
– The existence of independent and
impartial tribunal
• Equal protection of the
laws(substantive equality of
protection)
• Article 4 Cr. Code cum art. 25 FDRE
Constitution
 Exceptions: Founded Justifications
for differential treatment
• Immunities sanctioned by Public Int’al
Law- Diplomatic immunity
• Immunity sanctioned by the FDRE
Constitution-Constitutional Immunity
– HPR art. 54(5 &6)
– HOF art. 63
– Art. 39(1 c) cum 130(2g) criminal procedure
• Requirements of individualization of
criminal justice
– Art. 88(2) Cr. Code
– Differential treatment in sentencing
– Special treatment for women, young persons
and feeble minded
 The Principle of Individual Autonomy
• Each individual should be treated
as responsible for his or her own
behavior.
• Factual element of autonomy
– Freewill(the capacity to choice)vs.
duress, mistake, coercion etc
• Legal Element of autonomy
– Independent agency
– Euthanasia ?(should it be regulated)
• Limitation to the individual
autonomy?
– The right to life and the right to die
Chapter Four
 Jurisdiction
• Jurisdiction, generally, means “the
legal competence of a particular
court to hear a certain type or
class of cases that is enforceable.
• Hence, the conflicts of
jurisdiction might arise when the
courts of two or more places
decline to try a crime, or when the
courts of two or more places claim
to have jurisdiction to try one and
the same crime.
 Cont’ed
• Conflicts in jurisdiction may be of two
kinds
– Negative Conflict of Jurisdiction
• When two or more courts decline/deny
jurisdiction to assume, this scenario enables
the suspect to escape punishment.
– Positive Conflict of Jurisdiction
• When two or more courts claim to assume
jurisdiction, the suspect may be subjected to
double jeopardy.
– Levels of conflict of jurisdiction
• At national level –Ethiopian criminal courts
art. 99-107 of the Criminal Procedure Code.
• International –conflict between Ethiopian Courts
and foreign courts art. 11-22 of the Criminal
Code
 Fundamental Principles Of Application Of
Jurisdiction
• The Principle of Territoriality- art.11
– Is a place where the crime is committed and it is advantageous
for forum convenience
• The Principle of Quasi-Territoriality or the Protective
or Security Principle –art.13
– Are crimes committed abroad but will have significant impact to
the country assuming jurisdiction
• The Principle of Active Personality or the Nationality
Principle-art. 14,15(2) & 18(1)
– Crimes committed abroad by Ethiopian citizens
• The Principle of Passive Personality or the Passive
Nationality Principle
– Crimes committed by aliens abroad against the nationals of the
forum
•  The Principle of Universality or the Principle of
Universal Jurisdiction
– Crimes by stateless persons(nullius or res communis), when a
state refuse for extradition or unwilling to try
 Crimes under Int’al Law
• Eichmann Case (crimes against
humanity was arrested in violation
of the sovereignty of Argentina )
• Ethiopian Cases –Complementarity?
– Art. 17, 18(2)
Application of the FDRE Criminal
Code as to Place
• Principal Jurisdiction(art.11,12,13, 14
and 15(2))
– Territoriality Jurisdiction
• Art.11 Normal Case
– Crime committed by any person(except art.11(2))
– The crime must be punishable under Ethiopian Law-
principle of legality
– The Crime must have been committed on the Ethiopian
territory –art. 2 FDRE Constitution and art. 25 of the
FDRE Criminal Code
• Special case art. 12
– Extradition art. 21 criminal code
– Delegated jurisdiction
– Extra territorial jurisdiction art.13-16
• Vital interest of the country
• Quasi-territoriality
 Subsidiary Jurisdiction
• Is a jurisdiction which relates to
crimes that don’t directly or
chiefly concern Ethiopia.
• Derivative Jurisdiction –helps
avoid negative conflict of
jurisdiction.
– Art. 15(1), 17(1(a&b) and 18(1)
• Condition for application of
subsidiary Jurisdiction art. 19
 Extradition
• Extradition vs. Asylum
– Extradition is the official process whereby one country
transfers a suspected or convicted criminal to another
country. Refuge country and a requesting country
• Crimes usually kept outside extradition
– Political crimes
– Military crimes /desertion
– Religious crimes
• The Principle of Double Criminality
– Is a condition of extradition that the crime is
punishable acc. to the law both of the state of asylum
and of the requesting state.
• The principle of Specificity
– The requesting state is under a duty not, without the
consent of the state of refuge, to try or punish the
criminal for any other crime that that for which he was
extradited.
Chapter Five
Conditions of Criminal Liability
• Essential Elements of Crime
– Physical element (actus reus)
• Preparatory acts, attempted crimes and completed crimes
• Causation
– Mental element (mens rea)
• Intention
– Direct and indirect
• Negligent
– Advertent /conscious
– Inadvertent/ unconcscious
– Legal Element
• Principle of legality
– Nullum crimen sine lege
– Nullum crimen pona lege
– Non bis in adum
– Non retroactivity
– Proof of criminal law
 Meaning of Actus Reus
• is such a result of human conduct as the
law seeks to prevent. The act done or
omitted must be an act forbidden or
commanded by some law in force.
• defined as a physical or muscular
movement towards a given object which may
also include willful restraint from doing
a given act.
• Whether the offender’s act or omission
has caused
• Whether bringing about such a result or
state of affairs is prohibited by law.
• It is also called criminal act
 Cont’ed
• Deed of commission(exercise of
the behavior)
• Result of the commission-the
consequence of the deed/act
• Deed of Commission
– Crimes of Commission (“Acts”)
• These are characterized by positive
behavior, i.e. by actively doing something
to bring about the harmful ‘result’.
 Cont’ed
• Results of Omission
– Crimes of Omission (“Failure”) intentional
non doing
• It is impossible to bring about these results by
positive behavior. These are the results of
negative conduct omitting to act expected of him.
• Crimes of Omission: Where there is a Duty Imposed
by Law
– Art.39, 254,256, 443, 308, 284-285, 448, 575, 658, 659,
779, 824, 855
– Crimes of Commission by Omission (“Refusal”)
• Crimes of Commission by Omission: Where there is a
Duty Recognized by Law
– Art. 537 , 778, 575(1 &2 and 659(1 &2))
• These offences include behaviors which include both
positive and negative elements refusal to perform a
duty includes a positive expression of
‘unwillingness to act’ expected of him.
 THE ‘MORAL INGREDIENTS’ OF CRIME
(mens rea)
• the guilty state of mind of a person which
is associated with the principle “Nulla
poena, sine culpa” which means there is no
punishment without guilt. Blameworthiness
• Art.57
– “No one can be punished for an offence unless he
has been found guilty there of under the law. A
person is guilty if, being responsible for his
acts; he committed an offence either
intentionally or by negligence.
• Art. 20(3) presumption of innocence
– Responsibility is presumed
– State of mind (art. 58 and 59) at the time of
the commission of the crime
Tests in the evaluation of the state
of mind
• Objective standard of morality
– Reasonable man standard
• Test of subjective standard
– Responsibility is presumed
• Voluntariness of conduct
– Insanity, coercion
• Foresight of consequences
– Negligence (lack of foresight )
 Common Forms of ‘States of Mind’
• Intention
– directly
• There is full knowledge i.e., awareness
of consequences accompanied by with
(intent).
– indirectly(recklessness)
• There is awareness of consequences and
unwillingness to renounce the course of
conduct.
• Negligence
– Failure to exercise Reasonable care and
prudence(reasonable man standard)
– Failure to exercise due care and attention
– advertent
• There is awareness of consequences but
disregards the possibility
• foresees the possibility of some harm but
disregards (or rejects) its occurrence.
• A’ is driving a car and ‘B’ his passenger,
points to him that he drives too fast and
might hit someone, to which the driver
replies ‘you needn’t worry, I am a good
driver’. Advertent
• If the passenger insists but the driver
responds that it is 2 o’clock in the
night, the police are asleep and no body
will see us if something should happen.
Indirect intention
 Cont’ed
– Inadvertent
• There should or could have been awareness
of consequences but lack of
consideration of the same
• The accused is not aware of a possible
harm and there is no foresight about the
result
• The accused believing that the gun is
unloaded pulls the trigger and to his
surprise finds some one injured.
 Accident
• Art. 57(2)An effect is said to be an
accident when the act by which it is
caused is not done with intention of
causing it and when its occurrence as a
consequence of such act is not so
probable that a person of ordinary
prudence ought under the circumstance in
which it is done, to take reasonable
precaution against it.”
• The act must be an accident or misfortune
– the doer suffers more than the injured
– The absence of both intention and negligence
– Act done with proper care and caution
 Cont’ed
• The act must have not been done
with any criminal intention or
knowledge
• The act must have been done with
proper care and caution.
 Causation art.24
• Sine qua non test/ theory of absolute causation
– Without which not…
– Mixes causation and occasion of the harm
– It provides possible candidates for liability
– But for test
• Adequate or proximate cause test
– Normal course of things
– Pretending to shoot vs. death resulted out of pretention ?
– Presumption in favor of the prosecution in the chains of
causation
• Factors That Might Break the Chain of Causation
– Existence of preceding causes,
– Existence of concurrent causes
• Simultaneous (if A and B shoot c and bring his death) who bullet
kills c? art. 32 co offender
– Intervention of extraneous causes
• After the event and external to it.
 Physical element of a crime
• Where there is no physical
participation art. 32 Criminal
code
– Indirect participation
– Another person intervened
– Victim’s own conduct has affected
the result
– Contributory negligence of the
victim
– Where the participation is
superfluous
 Important Questions of Concurrence
• Whether the commission of
concurrence will give rise to sever
degree of guilt or not to the doer
• Determination of punishment
 Concurrence of Crimes art.60-67
• Material Concurrence/concurrence of
crimes
– When several unlawful acts are done in
contravention of one or more article
of the law
– Successive criminal acts
– Independent or related crimes art.65
• Robbery(670) =theft + coercion (art.582
cum 665)
• Art. 721 cum 723(related but ancillary or
subordinate
 Cont’d
• Notional Concurrence/concurrence of criminal
provisions
– When one unlawful act is done in contravention of several
articles of the law.
• Rape(620) incest(654), adultery(652), public indecency (639)
• Simultaneous notional concurrence
– When a single criminal act results in several punishable
crimes
• Non-simultaneous combination of crimes-art66
– Concurrence of intentional crimes-66(1)a
– Concurrence of intentional and negligent crimes -66b
– Concurrence of negligent crimes 66c
• If A sets fire to B’s hut with an intention to
destroy it. If B dies
– Arson 494
– Intentional homicide(indirect )
– Negligent homicide (advertent )
• Concurrence of victims (art. 60(c) FDRE CC
Determination of punishment in cases
of Concurrence
• Cumulative punishment is only
allowed under art 768
• Upon finding concurrence of crimes,
the court acc. to 184-187
– Impose a penalty on the most sever
crime
– Aggravate the penalty without
exceeding the max. limit art.184
Unit of guilt and penalty art.61
• Imperfect concurrence (unit of guilt and purpose)
• Single act or combination of criminal acts 60/1
– Single or combination of acts committed
– Against the same protected right
– Flowing from a single criminal intention or negligence
• If A stabs B but failed to kill him and causes
injury
– Attempted homicide
– Not bodily injury
• Successive non concurrent acts/continuing
offence60/2
– Repeated acts done
– Against same protected right
– Flowing from the same criminal Intention or negligence
– Aiming at achieving the same purpose
 Con’ted
• Ancillary /subordinate acts -60(3)
– Non-punishable acts of execution
• The putting into circulation of
counterfeit coins
• The use of forged documents
• Merger of intention and purpose
• Renewal of guilt and penalty -62
– If a truck driver who did not fasten
his load of bricks is aware of his fat
that a brick has fallen off and killed
one person and then having aware of
this if the driver continues and
killed another.
 Period of limitation
• Period of limitation is a
limitation in time for the
prosecution of a suspected criminal
within a period of time.
• Art. 211 ff, 217 , 170
 Corporate criminal liability
• Liabilities of juridical persons
Art.23(3) cum 34
• Kinds of corporate liability
– Criminal liability
– Civil liability
• Principles of corporate liability
– Vicarious liability
– Direct liability
Chapter Six
 Degree in the Commission of Crimes
• Different stages of commission of crimes to
realize a criminal design
• Material element
– Completed
– Incomplete(inchoate offences)
• Preparatory acts – a mere intention to
commit a crime is not punishable
– Overt and covert acts –art. 23
– Desire-Initial design /plan/preparation-
decision-overt act/enforcement
– Preparatory is harmless unless the preparation
consists of a crime
– Preparation must not be punished for
individuals to change their mind
 Cont’ed
• Attempt- is a second degree in the material
element of a crime where a substantial effort
but unsuccessful result. An attempt is more
than preparation.
• Elements of an attempt
– Intent/internal mental process/covers the thing in
full
– Overt act/the intent must be manifested clearly
(point of no return)-covers in part.
– Failure to achieve the result
• Kinds of attempt
– Incomplete attempt-voluntary withdrawal, external
intervention
– Complete attempt (impossible offence and active
repentance )
– Impossible attempt
 Preparatory vs. Attempt
• All preparatory acts are not
punishable but all attempts are
punishable
• The relative proximity between the
act done and the evil consequences
– Preparatory is devising or arranging
the means or measures necessary
whereas attempt is a direct movement
towards the commission
 The stage of Attempt
• Reasonable interference test or
unequivocality test
– Intention to commit the crime and overt
behavior towards the commission of the
crime
– If there is one reasonable answer
• The Commencement of the execution
test
– Go beyond the point of no return/point of
irrevocability/has taken decisive steps
• Proximity test
– Last act for the result, not remote
 Cont’ed
• Locus poenitentiae test
– Place of repentance may make a certain
behavior preparation or an attempt
• Social danger test
– The seriousness of the crime attempted
and the apprehension of the social
danger involved is taken into account
to distinguish an act of attempt from
that of preparation.
 Cont’ed
• Renunciation and active repentance
– Renunciation –renouncing ones criminal
pursuit of his own free will-reduced
punishment 180
– Active repentance is a scenario where
the perpetrator having completed the
criminal activity prevents or
contributes to prevent the consequence
of the crime out of his free will.
Chapter Seven
 Participation in the Commission
of Crimes
• Degrees and roles played by different
persons in the commission of the crime.
– Two argument
• equal liability due to illegality for both
principal and secondary criminals
• Differentiated liability to the degree and role
of their participation
• Participation in the principal capacity
– Narrow definition –physical
participation /material
– Broad Definition –moral criminal
/mastermind
 Cont’ed
• In Ethiopia the broad definition is recognized
– Material offender
• Art.32(1a)
• A bachelor performs sexual intercourse with a married
woman.
– Moral offender
• Full association with the commission of a crime art.
32(2b)
• Abebe, who is not a member of the military, promised 5000
birr to Bayuh, a military member to quit his membership
and the latter did the same.
– Indirect offender
• Art. 32(1c) uses intermediaries
• A woman persuades a man to commit rape against another
woman.
• Legal effect of punishment
– Art.35 cum 41
 Cont’ed
• Co- criminal /co-offender- art. 32(3) cum
33
• Participation in secondary capacity
– Before or during the commission of the crime
(accessory before or during the commission of
the crime)
• Incitement/instigator
• Complicity /accomplice
• Criminal consiparacy-38
– may encourage each other.
– may feel bolder than if they were on their own.
– may fear reprisal from the other
– may not want to loose face from the others
• Accessory after the fact -40
Chapter Eight
 Criminal Responsibility

• Criminal Defenses –are defenses where a

criminal will be subjected to a reduced
punishment or exoneration from
liabilities.
• Defenses are differently incorporated
in the criminal law (clearly as
defenses and elements of certain
crimes)
– General defenses- are defenses applicable
to every types of crimes indicating the
non-fulfillment of the essential conditions
of a crime(art. 23(2) FDRE CC
– Special defenses-are elements of a crime
which indicate the non-fulfillment of these
elements and are specifically applicable.
 General Defenses
• Are expressly provided by the law as
defenses
1. Excusable Acts -defenses that arise
because the defendant is not
blameworthy for having acted in a
way that would otherwise be criminal
– are the defects and unusual conditions
of the criminal during the commission of
the crime
– if persons commit crime unwillingly,
without understanding the nature and
consequences of their act, with mistaken
belief of facts or law
 Cont’ed

2. Justifiable Acts /lawful acts

– Are defenses that arise when the
defendant has acted in a way that the
law does not seek to prevent.
– The focus is on the criminal act not
on the suspected criminal
– Legitimate defense, necessity and acts
required or authorized by law
– Art. 23(4) criminal offences and
punishable offences
• Deserving of punishment
  
Burden of Proof in Cases of Defenses

• Responsibility/capacity is presumed
and any person who alleges
irresponsibility shall proof it.
Reasonable doubt
– Art.57(1) second alinae cum 48(1),
130(2g) Cr.P C and art.196 Civil Code
• Mental /moral fitness
• Grounds of irresponsibility
– Age (infants )
– Mental status (insanity)
– Intoxication
 Cont’ed
• Criminal responsibility is presumed. Every
person is capable to offend the criminal
law. Art. 57(1) cum 48(1) and art. 130(2g)
of the criminal procedure code(preliminary
objection). Art. 196(1 &2) civil code
• Who should proof responsibility?- the
person who alleges irresponsibility. When?
In the preliminary objection?
• Does this contravene presumption of
innocence? No. because the proof is on the
irresponsibility not on the guiltiness
side.
• Responsibility is related to mind (moral
element)-art. 23(2)
 Causes of absolute or partial irresponsibility

• owing to age, illness, abnormal delay in

his development, deterioration of his
mental faculties )
– Psychological
– Biological
– Bio-psychological
• Incapable of understanding his act
/regulating his conduct
• At the time of the commission of the act
• Evidence (proving insanity) art. 51
– About irresponsibility and time
– Expert witness
– Circumstantial evidence
• Art. 48 and 49= insanity
 Art. 50 intoxication
• Reason for incapacity –is other than
the causes mentioned under art.48 and
49
• Voluntary and involuntary
intoxication
• intentional or culpable
irresponsibility)-voluntary placement
in a state of irresponsibility to
commit a crime is punishable.
• Guilt mind vs. guilt action- the
criminal law punishes guilt mind not
the action taken
 Cont’ed
• Art.50/1
– state of the defendant (absolute or
limited irresponsibility)
– State induced by –own fault(voluntary
intoxication)
– Crime committed –intentionally in order
to …
– Fully liable to punishment
• Art.50/2
– Absolute or limited irresponsibility
– Own fault /negligent
– Negligently
– Punishable for negligent crime
 Cont’ed
• Art.50/3
– Absolute irresponsibility
– Own fault
– Accidentally /neither contemplated nor
intended
– Punishable under art. 491
• Art.50/4
– Absolute irresponsibility
– No fault on his part/has been coerced
– While incapable of forming any mental
element
– Shall not be liable to punishment
 Art. 52- infancy/immaturity
• doli inapax (incapable of doing a
criminal act), because a child
under such age group cannot form
the necessary intention to commit a
crime.
• what is birth? Art. 1 cum 2 civil
code
– [Birth-9) =exoneration of criminal
liability due to lack of intelligence
– [9-15)= young offenders Art. 53
– (15-18)-transitory age/ ordinary
provision Art. 56
 Lawful Acts(Art. 68 & 69)
• Art. 68 is an illustrative listings other than
exhaustive from the phrase in particular implicates
because it is to mean for instance, such as etc
• The law permits self contradiction for its proper
implementation and execution.
– Elements
• Acts required /authorized by law are not criminal offence and
punishable offence because there is no legal element (it is not
prohibited act) as per art. 23(2) cum art. 24
– Common Good/General interest(acts in respect of
public, state or military duties)- to maintain the
constitutional order
• Eg. Art. 50 Criminal Procedure Code states that “any private
person or member of the police may arrest without warrant a
person… and hence, that private person despite that she hasn’t
any official status will not be punished for Art. 585( illegal
restraint) due to Art. 68(1) a). The same holds true for Art. 57
of CPC(Assistance of arrest) which is an interference with
liberty Art. 602(1)
• Articles 443(1b) are acts contrary to Art. 613
 Cont’d
• Gov’t employees/public servants
– Eg. Police- Art.585 and 604
– Death penalty executioner
• Military duties –combatants (soldier is
justified to kill another ). A soldier is by
definition a person licensed by law to kill to
be killed.
• However, such lawful acts must obey the law
and must be proportional.
– Eg. Art. 271 of the FDRE Criminal Code(civilians,
POWs etc)
• Acts done in the exercising the right of
correction or disciple- Art. 36(1e) FDRE
Constitution cum Art. 2039(c) Civil Code
– Art. 576(3) Disciplinary Measures for purposes of
upbringing?
 Cont’ed
• Art. 68(1c) –Private Justice(taking the law into one’s own hand )-
– eg. Art. 1148 of the civil code right of holder or possessor to repel by force a
usurper
– Art. 2076(2 )of the civil code to kill animal because Art. 2097(2) for good faith
• Art. 69 Acts done in exercising professional duty
– This can be incorporated under art. 68 but treated differently under Art. 69
– What is a profession?(elements of profession)
• Extensive training
• The service needs the society
• Certification
– As long as the service is needed by the society, the professional must render
it /exercise it .
– Limitation
• Accepted practice of the profession
• Grave professional fault (art. 2031 civil code)
– Eg. Bodily injury, battery
 Defense of Consent
• Art. 70 Consent of the Victim
– Relatively Protected Rights –despite the fact that crime is public,
offences under the criminal code are arranged from most sever to
lenient crimes. Crimes against the state and group crimes are among
serious crimes but petty offences and crime of predominantly private
nature are lenient crimes. In most cases, relatively protected rights
are crimes upon complaint (art.212) and hence, can be waived
– Absolutely Protected Rights – are serious crimes which offend the
state and the public at large and are punishable by
accusation/without complaint.
– The purpose of the harm (art. 573(2))
• The FDRE Criminal Code adopt the purpose of the harm theory
and upon complaint crimes as indicated under art. 70(2) and
70(1) respectively.
 Legitimate Defense
• Art. 78. refers to the use of force to prevent unlawful attacks
against individuals, their homes, property and the right of
another person.(the taking of the law into one’s own hand).
Legitimate defense is socially desirable behavior because it
tries to teach the unlawful attacker by using force.
• Elements
– Actual Attack or imminent attack –attack should not be imagined
and retaliation (it should not been future or past attacks)-
preemptive strides
– Against legally protected rights
– Last Resort –means of averting the attack should be exhausted
– Proportionality –attack and repel
 Defense of Necessity
• Art. 75 presupposes the choice of evils. The evil is
extraneous to individuals. Lesser evil will be chosen. The
arbiter in necessity is might to choice over the lesser evil.
• Elements
– True State of Necessity
– Last Resort
– Proportionality-doing of harm and suffering of harm
 Excusable Acts
• Art. 71 Coercion is derived from Art. 32(1c) compelling another to
commit a crime. It is obliging an individual to commit a crime at
gun point. The individual is placed at two options ; to commit the
crime or suffer the consequences of resistance. The person who
violates the law is deprived of his freedom of choice by coercion.
• Types of Coercion
– Physical
– Moral
• Requirements
– The actor must be under an absolute irresistible coercion
– The harm to be caused by doing the act must not be greater than that
would have been suffered by the actor had he not submitted to the
coercion.
 Defense of Superior Order
• Art. 73 & 74 Chains of Commands- authority to order some
one to do something. It is a relationship between superior –
subordinate in authority.
• Theories
– Blind /passive obedience –accepting order at all times is a merit
because obedience is respecting the law
– Intelligent infantry/bayonets- questioning the legality and authority of
the order is a merit. Inquisitiveness = disobedience
– Middle-of –the-road(reconcile the legal and factual requirements by
combing obedience and independence)- manifestly unlawful
• Stringent Exigencies to discuss over the authority
/competence, express should be considered by the court to
assess over superior –subordinate relationship. Nazi officials
 Art. 80 Mistake of Fact
• As a matter of principle, mistake of the true facts of the situation may not
serve as an excuse to a criminal liability. Presence/absence/quality which
will vitiate understanding over things and brings mistake.
• Mistake can be fundamental and non-fundamental
• Mistake of the true fact negates intentional guilt and a person who commits
a crime as a consequence of misappreciation of the true facts of the
situation must be tried as though the situation which he believes to exist did
actually exist.
• Knowledge and Desire must be considered in mistake of fact. Art. 58(1)
(a&b) both direct and indirect intention-
– eg;- Challa shoots something which he believes to be a lion but actually is a human
being. Material ingredient of intentional homicide is absent and hence, Challa will
not be held liable for intentional homicide .
– Arsenic for sugar, poison for drug
• Hence, mistake of fact is arguably considered a defense to criminal liability
for intentional crimes(materially ingredient of the crime).
 Mistake of Law/Ignorance of Law
• Art. 81 Cum 2035 cc As a matter of rule ignorance of the
law is not an excuse. Information
• Art. 1 para 2 –Due notice is a prerequisite
– Physical accessibility –circulation of the legislation
– Language
• Art. 81(3)-exception –absolute and justifiable ignorance
+good faith + no criminal intent.
• Exception should be interpreted to the extent of the rule
and restrictively not to defeat the principle.
 Punishment
• Punishment is a process of selecting a person who are antisocial from
society to bring their reformation to make them important to society.
• Criteria for punishment
– Impose pain or unpleasant consequence
– Be described by the law –principle of legality
– Be administered intentionally
– Be administered by the state
• Sentencing Structure /individualization of punishment (art. 41 cum
88(2) of the Criminal Code) decree 2/2006 cum 88(4) criminal code
– Legislative fixed model- the HPR provides a general guidelines of punishments
/determinate circumstance
– Judicial Fixed model-discretion /indeterminate circumstance
– Administrative model –prison administration
• Amnesty
• Pardon
 Purposes of Punishment
• Retribution Market deterrence
• Deterrence Individual Deterrence
• Incapacitation /disability
• Rehabilitation /reformation
– Preamble cum art. 87
– Principle of individualization Art. 88(2) cum 41
– Principle of legality art. 2(1)
• Correlation between purpose of punishment and types of
penalties
– Incapacitation= death/rigorous /simple imprisonment
– Rehabilitation/reformation= simple/rigorous
 Types of Punishments

• Primary Penalties
– Penalties affecting the criminal's property
• Fine, confiscation, sequestration, forfeiture(90, 91, 97, 99 & 100)
– Penalties affecting the life of the criminal (art. 117 cum Art. 15
FDRE Constitution)- abolitionist vs. retentionist (Art. 6 ICCPR)
• The crime must be exceptionally grave
• The criminal must be exceptionally dangerous
• Completed crimes
• There must not be extenuating circumstance
• The criminal must have attained 18 years
– Penalties affecting the personal liberties of the criminal
• Simple imprisonment and rigorous imprisonment (106(1) & 108(1))
 Secondary Penalties
• Caution, reprimand, admonishment and apology (art. 122)
• Deprivation of Rights 123
• Dismissal from the defense force 127(1)
• Protective Measures (134)
– Measures applicable to adults in special cases Art. 130, 131
&132)
– Measures applicable to young persons
• Admission to a curative institution 158
• Supervised education 159
• Reprimand ; censure 160
• School or home arrest 161
Extenuating and Aggravating Circumstance
• Art. 88(2)- extenuating circumstance are external/internal factors
surrounding the commission of the crime which are not the legal
ingredient of the crime committed but taken into consideration
during sentencing.
– Nature of the crime High motive
– Incidental circumstance of the crime moral /material distress
– Personality of the criminal threat, reverential fear
– State of mind of the criminal temptation, repentance
– Age, education , knowledge , character (before and after), health
– Economic position, motive and provocation /impulse
• Types of Extenuating General Art.82 material /external,
internal and mixed
Special element of the crime
 Cont’ed
• No double extenuation and aggravation (art. 82(2) cum 179
and art. 84(2) cum 183
• Aggravation refers to factors that are relevant to the
perpetration of a crime which indicate the degree of guilty
and dangerous disposition of the criminal warranting an
increase in the penalty to be imposed on such a criminal.
Aggravation can be either material or personal conditions
attending the commission of the crime which can be taken in
sentencing.
• General and Special Aggravating circumstance
– Treachery, base motive, deliberate intent, cruelty, abuse of power,
antecedents, habitual or professional nature of the crime, the time
and circumstance of the commission of the crime.
 Aggravation in cases of concurrence and
recidivism
• 184-188
• Notional and material concurrence
• Recidivism
 References
• Stevin Lowstien.(1965 ). Materials
for Study of the Penal Law of
Ethiopia.
• Philippe Graven. ( 1965). An
Introduction to Ethiopian Penal
Code, Addis Ababa, Ethiopia
• Material on Criminal Law prepared
by Justice and Legal System
Research Institute of Ethiopia.