Cassation Case No. 253740
November 27, 2023
Judges: – Birhanu Amenew
Be’iwket Belay
Qen’a Qitata
Birhanu Mengistu
Marta Teka
Applicant: – Abreham Yisaq
Respondents: – Ministry of Justice Prosecutor
The file has been examined and the following judgment is rendered.
Judgment
The file was brought before this bench based on the applicant’s petition requesting correction by the Cassation Division, alleging that the decision rendered by the Federal High Court on 18/01/2016 E.C. under File No. 012961, which affirmed the ruling issued by the Federal First Instance Court on 25/12/2015 E.C. under File No. 232763 rejecting the applicant’s request for release on bail, contains a fundamental error of law.
Briefly, the background of the case is as follows: In the lower court, the prosecutor filed a charge against the applicant alleging that the applicant violated Article 626(1) of the Criminal Code by engaging in sexual intercourse with the victim who is 15 years old. The applicant was charged with this offense. When a hearing date was set, the applicant’s lawyer filed a request for the applicant to be released on bail. In response, the prosecutor commented that since the provision under which the applicant is charged is punishable by rigorous imprisonment of up to 15 years, the applicant might fear the penalty and fail to appear, thus not honoring the bail obligation. The prosecutor objected on this ground. The court, assuming that the applicant might not appear fearing the penalty if found guilty, rejected the bail request pursuant to Article 67(a) of the Criminal Procedure Code and ordered the applicant to remain in a detention center. The applicant filed an appeal with the Federal High Court, and the court, after hearing both parties, affirmed the decision of the court below, stating it was appropriate.
The cassation petition was filed against this decision. Briefly, the content of the petition is that the assumption made by the court below that the applicant might not appear to honor the appointment is a mere assumption taken without concrete grounds, evidence, or sufficient and legal reasons that would justify denying the right to bail. Therefore, the petitioner requested correction by the Cassation Division, stating that the decision did not consider the ruling given by the Cassation Division under File No. 131863. The applicant’s petition was examined, and a point of contention was framed to examine the appropriateness of the rejection of the applicant’s bail request by the courts below in light of Article 17(1) and 19(6) of the Constitution and the legal interpretation given by the Cassation Division in File No. 131863 and other files. The prosecutor was ordered to respond. In the response submitted in writing on 12/03/2016 E.C., the prosecutor argued that the objection to the bail request was based on the committed criminal act, its gravity, and the manner of its execution. The prosecutor further argued that since the Cassation Division, in its decisions under File No. 67874 and other files, ruled that the gravity and manner of execution of the crime can be a reason for denying bail pursuant to Article 67(a) of the Criminal Procedure Code, the decision of the courts below in this case does not contain a legal error.
The background of the case and the arguments of both parties are briefly as described above. We have also examined the file in conjunction with the decision against which the petition was filed and relevant legal provisions. As we have examined, the content of the decision of the court below shows that the applicant’s bail request was rejected based on the assumption that the applicant might fear the penalty to be imposed and fail to appear for the appointment. The applicant’s argument is that the court lacked concrete grounds, evidence, or legal reasons to make this assumption.
Fundamentally, the right of a person charged with a crime to be released on bail bond and follow the proceedings is a basic constitutional right, as stipulated by Article 19(6) of the Constitution of the FDRE. The basis of this concept stems from the legal presumption that a person charged with a crime has the right to be presumed innocent until proven guilty by a judgment. The content of Article 20(3) of the Constitution of the FDRE also indicates this idea. However, there are circumstances where the legislature has explicitly stipulated otherwise by law, or where courts, based on the power granted to them by law, can deny the right to bail by weighing the reasons presented to them. Therefore, remaining on bail is a basic constitutional right unless specifically prohibited by law, and the content of the provision shows that prohibition is done in special circumstances. The combined reading of Article 19(6) of the Constitution of the FDRE and Articles 63 and 67 of the Criminal Procedure Code indicates this. Furthermore, the principle of legal interpretation dictates that the special circumstances listed in the law must be interpreted and applied carefully and narrowly.
In the present case, although the criminal article under which the applicant is charged, Article 626(1), is punishable by rigorous imprisonment of up to fifteen years, it does not, in principle, prohibit bail. Article 63 of the Criminal Procedure Code is relevant. However, it is certain that the right to bail can be denied by a court if one or more of the conditions listed under Article 67 of the Criminal Procedure Code are proven to exist. In this case, the reason presented by the prosecutor to object to bail is that the applicant might fear the heavy penalty that could be imposed and fail to appear for the appointment, and the content of the decision shows that the court accepted this reason. The court cited Article 67(a) of the Criminal Procedure Code as the provision for denying the right to bail. Article 67(a) stipulates that one of the reasons for rejecting a request for release on bail bond is if it appears that the applicant is unlikely to fulfill the obligations stated in the bail bond. The law does not explicitly state the reason why courts can deny bail on this ground. However, although the provision is permissive, the Cassation Division has given a binding interpretation that the court must reach its conclusion based on sufficient reason and evidence, not arbitrarily. (See Cassation File No. 67874, Vol. 13, and File Nos. 131863 and 134228, published in Vol. 20).
In this case, the court rejected the bail request based on the assumption that the applicant might fear the penalty to be imposed and fail to appear for the appointment, and it did not mention any other reason for the existence of such a possibility. There is no sufficient basis to conclude that fearing the penalty is a unique characteristic of the applicant alone. Even if this were the case, it would only make the bail obligation more important, not a sufficient reason to deny the right to bail. Therefore, denying bail solely on the basis that the penalty is heavy, without any other sufficient reason to believe that the applicant will not fulfill the obligation, is inappropriate. In this regard, we have found that the decision of the court below contradicts the binding legal interpretation given by the Cassation Division, as it was made without confirming the existence of sufficient grounds for such an assumption and without considering the binding interpretation. Accordingly, by correcting pursuant to Article 2(4/sh) and 10(1/a) of Proclamation No. 1234/2013, we have rendered the following decision.
Decision
1st. The ruling issued by the Federal First Instance Court on 25/12/2015 E.C. under File No. 232763, which rejected the applicant’s right to be released on bail, and the decision issued by the Federal High Court on 18/01/2016 E.C. under File No. 012961, which affirmed the same, are hereby annulled pursuant to Article 9(1/b) of Cassation Procedure Directive No. 17/2015.
2nd. We have ruled that the applicant has the right to be released on bail bond and follow the proceedings.
3rd. Regarding the type and amount of the bail obligation, we have remanded the case to the Federal First Instance Court for a decision after receiving comments from both parties. Let it be written.
The case is closed and shall be returned to the registry.
Contains the illegible signatures of five judges.
B/M