Cassation Case No. 250285

December 30, 2016 E.C.

Justices:

• Berhanu Amenew
• Bewket Belay
• Ken’a Kitata
• Berhanu Mengistu
• Marta Teka

Parties:

• Applicant: Ministry of Justice – Prosecutor – Eden Getnet – Appeared
• Respondent: Tigist Moges Dessalegn – Did Not Appear

The case has been examined, and the following judgment is rendered:

JUDGMENT

The matter concerns the management of criminal proceedings. The proceedings were initiated in the Federal First Instance Court, where the Applicant charged the Respondent with violating Article 544/1 of the Criminal Code. It was alleged that on June 15, 2015 E.C., at approximately 10:30 AM, while experiencing labor pains and before the pains subsided, the Respondent intentionally killed her newborn daughter by strangulation at a residence located behind the Gara Duba Bank in Woreda 01, Akaki Kality Sub-City.

The court, instead of serving the charge sheet to the Respondent, reading out the charges, and hearing the Respondent’s preliminary objections or plea, sua sponte examined the charge sheet. It concluded that because the Respondent concealed the baby in a basket covered with clothing after giving birth to prevent her employers from seeing her, the charge should have been brought under Article 544/2 of the Criminal Code, not Article 544/1. The court then stated that since the Federal High Court has jurisdiction over cases brought in that manner, it lacked the jurisdiction to adjudicate the case and closed the file under Ref. No. 296953 on July 8, 2015 E.C.

The Applicant appealed to the Federal High Court, which, after hearing arguments from both sides under Ref. No. 296953 and ordering clarification from Tirunesh Beijing Hospital regarding the duration of labor pains after childbirth, and based on the evidence presented, ruled on September 30, 2015 E.C., that it was confirmed from the evidence that there are no labor pains after childbirth. Therefore, the baby died because the Respondent did not inform her employers of the birth and covered the baby with clothes in a basket after delivery, and the matter came to light after a medical examination at the hospital, it is impossible to accept the claim that the Appellant committed the crime while experiencing labor pains. The court further reasoned that if the crime was not committed under the influence of labor pains, then, as Article 544/2 of the Criminal Code indicates, the charge should have been brought under the provisions of the Criminal Code related to homicide, which falls under the jurisdiction of the Federal High Court, therefore the lower court had not erred in closing the file, ruling that it did not have jurisdiction.

The Applicant filed a Cassation Petition on November 3, 2015 E.C., alleging that the decision made contained a fundamental error of law. The gist of the petition is as follows: The Applicant charged the Respondent with violating Article 544/1 of the Criminal Code, alleging that she strangled her newborn daughter while experiencing labor pains and before the pains subsided. To say that the Federal First Instance Court, which has the jurisdiction to adjudicate such a case, does not have jurisdiction is an error. According to Articles 108 and 109 of the Criminal Procedure Code, the Prosecutor has the authority to file charges after examining the police investigation file and citing the appropriate legal provision. If the legal provision cited by the Prosecutor does not match the details of the crime, the court should have ordered the amendment of the charge instead of closing the file, which is contrary to Article 110 of the Criminal Procedure Code and is therefore an error. The Federal High Court, exceeding the scope of the appeal, delved into an irrelevant issue or factual matter concerning the definition of labor pains and concluded that labor pains occur before, not after, childbirth, and that the article cited in the charge should be changed, which constitutes a fundamental error of law, and therefore requests that it be rectified.

After examining the Applicant’s Cassation Appeal, the following issues were identified:

1. Considering Article 112 of the Criminal Procedure Code and Article 6(3/e) of Proclamation No. 943/2008, is the decision of the lower courts regarding the authority of the Public Prosecutor to file criminal charges on behalf of the government, as well as the authority to initiate criminal charges by identifying the legal provision that is most closely related to the committed criminal act, appropriate or not?
2. At what stage of the proceedings and under what circumstances should the courts fulfill their responsibility to verify whether or not the Public Prosecutor is properly exercising this authority?
3. In connection with this, while a charge filed by the Public Prosecutor is under the jurisdiction of the court, is it procedurally correct for the court, on its own initiative, to change the legal provision cited by the Public Prosecutor in the charge by stating that the cited provision is not appropriate and that this provision is the appropriate one, and then to decide not to accept the charge by claiming that it does not have the jurisdiction to adjudicate the charge based on the changed provision? Does this not contradict the principle of impartiality?

Based on these points, the Respondent was ordered to provide a response, and the Respondent orally explained that the crime for which she was charged occurred while she was in labor with active bleeding, as stated in the Applicant’s charge.

The above is a brief summary of the content of the charge, the arguments of both sides, and the decision of the lower courts. We have examined the aforementioned issues in detail, considering the relevant law, to determine whether or not a fundamental legal error was committed that can be corrected at this level of the court, and our findings are as follows:

Firstly, regarding the issue we have identified: “Considering Article 112 of the Criminal Procedure Code and Article 6(3/e) of Proclamation No. 943/2008, is the decision of the lower courts regarding the authority of the Public Prosecutor to file criminal charges on behalf of the government, as well as the authority to initiate criminal charges by identifying the legal provision that is most closely related to the committed criminal act, appropriate or not?”, we have reviewed this. Based on our review, according to the criminal justice administration system established in our country, a perpetrator should be punished in accordance with the criminal law when it is proven in court that they committed a criminal act that is prohibited and punishable by law, or that they completely fulfilled the legal, physical, and moral elements of an action or inaction that is deemed a crime by law. As stipulated in Article 6(3/e) of Proclamation No. 943/2008 issued to establish the Federal Attorney General and in Articles 107 and 109/1 of the Criminal Procedure Code, the authority to file charges against the perpetrator in criminal matters on behalf of the Federal Government in the appropriate court is granted to the former Attorney General or the current Ministry of Justice.

Article Numbers 111(1/c) and 112 of the Criminal Procedure Code stipulate that the provision of the Criminal Code cited by the prosecutor in the criminal charge application must be closely related to the language of the law that criminalizes the act allegedly committed by the accused. The reason for this stipulation, as provided under Article 23/2 of the Criminal Code, is to enable the prosecuting attorney to prove that the elements of the offense, as stipulated in the provision cited in the charge, are fully met, and to enable the accused to defend himself by arguing against the elements of the cited provision. This can be understood from the content of the provisions. It is the prosecutor who is legally empowered and responsible to prepare and present the charge in this manner, and courts at all levels have the responsibility to oversee whether the prosecutor is properly exercising this power and fulfilling his responsibility.

In connection with this, when examining the central issue of when and under what circumstances courts should fulfill their responsibility to ensure that the prosecutor is properly exercising this power, we find that the Code of Criminal Procedure, Numbers 118 and 119, establish a procedure whereby the charge shall not be invalidated merely because of an error in the charge application concerning the offense or an essential detail of the offense, or because an essential detail has been omitted. If the error or the omitted essential matter is significant or misleading to the accused, or if it appears to have misled the accused, or if it appears impossible to render a proper judgment due to this, the court, at any stage of the proceedings before judgment, may, on its own initiative or upon application by a party, order that the charge be amended, altered, or that the omitted item be added.

Furthermore, when hearing arguments, examining and weighing evidence, and issuing decisions on matters for which adjudication is sought, courts have a duty and responsibility to perform their judicial functions independently and impartially, being guided only by the law and not by any other influence, while respecting the goals, objectives, and principles of the Criminal Code; respecting the power and function of the applicant (prosecutor) who is legally empowered to file criminal charges on behalf of the government, to argue the case, and to punish according to the law; upholding the rights of the victim and the prosecutor; and following the procedures prescribed in the procedural law when hearing and examining the charges, arguments, and evidence presented to them, including an examination in light of fundamental law. This duty and responsibility are discernible from Articles 9(1, 2, and 4), 13, 20, 37, 79(2 and 3) of the Constitution of the Federal Democratic Republic of Ethiopia, the General Part of the Criminal Code, and the provisions of the Criminal Procedure Code.

As indicated above, the applicant must, in accordance with Article 112 of the Criminal Procedure Code, identify and cite the provision of the Criminal Code that most closely criminalizes the act committed by the accused in the criminal charge brought by the applicant. In principle, it is presumed that the applicant will properly fulfill this obligation. However, the court has the responsibility to verify that the applicant has properly fulfilled this obligation. By way of mentioning the main reasons for which the court may conclude that the provision of the Criminal Code cited in the charge is not the appropriate provision and may order that the charge be amended or altered:

1. If the criminal act described in the charge is inconsistent with the material, moral, and legal elements stated in the charge;
2. If the provision of the Criminal Code cited in the charge and the act alleged to have been committed by the accused are inconsistent, thus misleading or appearing to mislead the accused, thereby affecting the accused’s right to defend against the charge;
3. If the prosecutor has cited a provision of the Criminal Code that is clearly inconsistent with the act that the prosecutor claims to be a criminal offense, and there is a reason based on law and the factual matters stated in the charge to believe that the citation is intended to deny the accused’s right to bail; and
4. If, for another plausible reason, it appears impossible to render a proper judgment.

Based on the aforementioned reasons, the stage in the litigation process at which the indictment can be amended may vary depending on the circumstances of the reasons and the nature of the right sought to be enforced. Accordingly, if the criminal act stated in the indictment is proven by evidence, it is possible to reach a conclusion that the defendant cannot be ordered to defend himself against the charge under the provision cited in the indictment; or, with respect to the constitutive elements and/or mitigating factors of the offense stipulated in the legal provision cited in the indictment, for example, considering the perpetrator’s level of authority, the benefit obtained by the defendant or a third party, and the harm suffered, it is possible to reach an undisputed conclusion that an inappropriate provision has been cited. In such a case, the possibility that the defendant may not be ordered to defend himself under the provision cited in the indictment is high. To facilitate speedy justice by correcting this type of defect that delays (prolongs) the litigation process from the outset, to allow the Public Prosecutor to present and examine his witnesses after amending the indictment by citing the appropriate provision, and to create a conducive environment for the defendant to properly exercise this right in light of the correct provision stated in the amended indictment, considering that the defendant begins his defense by cross-examining the Public Prosecutor’s witnesses; further, whenever it is possible to ascertain that an irreparable harm will be inflicted upon the defendant due to the denial of his bail right, owing to the inappropriate application of the criminal law provision when viewed in light of what is stated as the perpetrator’s level of authority, what is stated as the benefit obtained and/or what is stated as the harm suffered as indicated in the charge sheet; in general, considering the enumerated reasons as fundamental reasons in order to achieve effective management of the litigation, to administer true justice, and to implement what is stipulated in Article 19(1 and 6) and 20(2 and 4) of the Constitution by protecting the defendant’s right to defense and bail, the Public Prosecutor can be ordered to amend or change the indictment as much as possible before the Public Prosecutor’s witnesses are heard or, if it is belatedly discovered, depending on the circumstances, after the Public Prosecutor’s witnesses are heard and before the judgment is rendered.

Furthermore, while the case initiated by the Public Prosecutor is under the jurisdiction of the court, is it procedurally sound for the court, on its own initiative, to change the provision cited by the Public Prosecutor in the indictment by stating that “the provision cited by the Public Prosecutor in the indictment is inappropriate; this is the appropriate provision,” and to decide not to accept the case by asserting that it does not have the jurisdiction to adjudicate the case based on the changed provision? Would this not contradict the principle of impartiality? We have examined the issue we have taken up. It is known that a court has a legal obligation to accept and adjudicate a case presented within its legal jurisdiction. Sometimes, it may not be possible to reach a conclusion as to whether the criminal law provision cited in the indictment is appropriate or not without the Public Prosecutor’s witnesses being heard and the criminal act stated in the indictment being proven. When such a situation arises, as long as the case presented is within its jurisdiction, the court before which the case is presented must commence hearing the case by reading out the indictment, hearing the defendant’s preliminary objections and/or plea, as long as the criminal law provision cited in the indictment and the detailed execution of the criminal act stated in the indictment as having been committed by the defendant are consistent with the provision, and by hearing the Public Prosecutor’s witnesses following the procedural law, determine whether or not the defendant committed the crime. If it is established that the defendant committed the crime, the court must identify the criminal law provision that criminalizes the established act and state whether the defendant should defend himself against the charge, or, if the defendant should defend himself based on the criminal law provision cited in the indictment, state this; otherwise, it reminds that it is stipulated under Article 113/2 and 142/2 of the Criminal Procedure Code that the court must order the defendant to defend himself after changing the provision cited in the indictment. Therefore, while the case initiated by the Public Prosecutor is under the court’s jurisdiction, it is not procedurally sound for the court to, on its own initiative, change the provision cited in the indictment, without hearing the Public Prosecutor’s witnesses and without confirming the nature of the crime committed, by stating that “the provision cited by the Public Prosecutor in the indictment is inappropriate; this is the appropriate provision,” and reject the case stating that it will not have jurisdiction to adjudicate the matter once the provision is changed.

In the present case, the lower courts concluded, “… it is not possible to accept that the respondent committed the crime while in labor because she gave birth without telling her employers, and the born child was placed in a basket and covered with clothes, which led to the child’s death, and the matter became known after she went to the hospital and the house was searched following a tip from the doctors…” This conclusion was reached without accepting the respondent’s plea and without the Public Prosecutor presenting and examining his witnesses, and without the evidence being weighed and the crime committed by the respondent being established. Therefore, it violates the fundamental principle of impartiality expected of a judicial body, and in addition, the conclusion reached by the courts in the manner stated undermines the right protected under Article 20/3 of the Constitution that a person against whom a criminal charge has been brought has the right to be presumed innocent until proven guilty in a judicial process. Therefore, it is a fundamental legal error that must be corrected.

Furthermore, the applicant, in the lawsuit filed against the respondent, stated in the claim that the respondent violated Article 544/1 of the Criminal Code. Regarding the details of the crime’s execution, it was alleged that “…on the 15th day of June, 2015 E.C., at approximately 10:30 AM, in Akaki Kaliti Sub-City, Woreda 01, in a specific location behind Gara Duba Bank, inside a residential house, the respondent, while experiencing labor pains and before the cessation of such pains, intending to kill her child, strangled the female child she had given birth to, thereby killing her.” Article 544/1 of the Criminal Code stipulates, “A mother who, intending to kill her child while experiencing labor pains or before the cessation of such pains, kills her child shall, depending on the circumstances, be punished with light imprisonment.” It is uncontroversial that a criminal case presented citing this provision falls under the jurisdiction of the Federal First Instance Court, according to the First Annex Schedule of the Criminal Procedure Code. As the content of the claim clearly shows, the applicant brought the claim in accordance with Article 112 of the Criminal Procedure Code, as the provision of the criminal law stated is closely related to the action committed by the respondent.

Notwithstanding the foregoing, a conclusion that the respondent committed the act not during labor or after the cessation of labor pains and after giving birth can only be reached after the claim is read to the respondent, and she denies committing the crime, pleads not guilty, and the prosecution’s witnesses are heard, and evidence is weighed. However, the First Instance Court, by itself examining the statement of claim, stating “…the respondent killed her child after giving birth by putting her in a basket and covering her with clothes so that her employers would not see her…” it should change the provision of the criminal law cited by the prosecutor in the claim to the appropriate provision according to Article 544/2 of the Criminal Code; and when it does this, since the jurisdiction to adjudicate the case will belong to the Federal High Court, it closed the file saying that it does not have jurisdiction. As we stated above, the criminal act allegedly committed by the respondent and the criminal law provision cited in the claim are in harmony with each other. The provision of law cited in the claim is not very different from the action committed, so even if it is said to mislead the respondent, or restrict her right to defense, according to Article 111(1/e), 112, 118 and 119 of the Criminal Procedure Code, it can order the claim to be amended and presented, but it is a fundamental error in the conduct of the argument that the court closes the file claiming that it does not have jurisdiction, while the claim presented without amendment is under its jurisdiction, and without confirming the type of crime committed after hearing the respondent’s plea and the prosecution’s witnesses, according to the procedure law, and this error needs to be corrected.

The High Court, which considered the case on appeal, having accepted the appeal presented on the grounds that the manner in which the lower court closed the case file by claiming lack of jurisdiction was procedurally incorrect, and after arguing both sides, should have corrected the mistake made by the lower court as stated above. But it did not state that the lower court’s decision was without defect, based on its evaluation of the criminal law provision stated in the statement of claim and the alleged criminal act committed by the respondent, in relation to the manner in which the criminal act was described in the claim, instead affirming that the criminal law provision was not in harmony with the alleged criminal act committed in the claim. Furthermore, even before hearing the respondent’s plea and the applicant’s witnesses, and after presenting and examining additional evidence, concluding that the respondent committed the crime after giving birth and the cessation of labor pains is not only unfounded by the grounds of appeal presented, but also a fundamental legal error that needs to be corrected because it did not follow the procedure established in the procedural law regarding the manner in which a criminal case is presented, regarding the presentation of additional evidence, and regarding the conduct of the appeal argument.

Therefore, the decision rendered by the Federal First Instance Court and affirmed by the High Court contains a fundamental legal error that should be corrected pursuant to Article 2(4/a and b) and 10(1/c and e) of the Federal Courts Proclamation No. 1234/2013; therefore, it has been decided as follows:

Decision:

1. The order given by the Federal First Instance Court on case number 296953 on 08/07/2015 E.C. and the decision given by the Federal High Court on case number 296953 on 30/09/2015 E.C. are hereby reversed pursuant to Article 9/1 of the Federal Supreme Court Cassation Procedure Directive No. 17/2015.
2. The case is returned to the Federal First Instance Court pursuant to Article 9/2 of the Cassation Procedure Directive No. 17/2015, so that a judge or panel that has not previously heard the case can activate the file and render an appropriate decision after hearing the claim and conducting the argument in accordance with the procedural law.

Order:

1. A copy of the decision shall be transmitted to the lower court for execution pursuant to the decision. Copies of the decision shall also be given to both parties.
2. The file is closed and returned to the archives.

[Illegible signatures of five judges are present]