Criminal procedure lecture note; husen

Instructor; Doctor Memberetsehay Taddesse

The very general and broad question of this (criminal procedure) course is “how do we enforce
criminal law?” As most of you can easily guess, before deciding for an act to be a crime, we
have to investigate whether that act is really a criminal act or not. For example, for accusing
someone in the crime of murder, one has to identify murder from natural death. The question is,
how do we make a distinction between murder and natural death? First, we have to establish
cause and effect relationship, we could establish cause and effect relationship by gathering
evidences.

As you’ve repeatedly stated in your criminal law class, criminal law establish certain obligations
or duties on a citizen by expressly providing for what to be done and not to be done (act or
omission). But the ascertainment of this branch of law will always requires investigation of some
facts. Because a criminal law can only be violated by individuals and we have to first ask
ourselves, “Who has gone against the rules of criminal law?” In doing these things, there is one
thing we should always do; we have to dig for facts. So, for finding out these facts, we have to
make an investigation is the whole point here.

The machinery of justice cannot move forward by the application of substantive laws only; it
always requires rules and ingridience. The machinery of justice could only be triggered if there is
a combination of facts and legal rules. Therefore, the whole idea of criminal procedure is to
guide us how to make investigation whenever there is an apparent violation of criminal law.
Whether the real violation of criminal law will be determined at a later stage if there is a
suspicion that the substantive rules prescribed under criminal law have been violated or if there
is a report to that end, then, we have to dig for facts first for completing the machinery of justice.
So, the whole purpose of criminal procedure is to guide as to the investigation, prosecution and
judgement process. We can generally say that criminal procedure is a kind of collection of rules,
rules that help us in investigation, prosecution and adjudication of criminal law.

As you could obviously know, there are civil and criminal cases. Criminal procedure is relevant
in criminal cases and a criminal case is a case that is brought by public prosecutor. One of the
distinction between the criminal and civil case is, “who is bringing what?” the public prosecutor
comes to the court alleging that there is a violation of the provision of criminal law.

Whenever there is a violation of criminal law, there are two possible interests that usually come
in to conflict. Let’s say, for instance, Mr X is in suspicion of having murdered Mr Y. The two
paramount interests in this case are, maintaining peace and security on the side of state on the
one hand and respecting the inviolable and inalienable rights of the suspect on the other. For the
interest on the side of the state, it’s enough of remembering art. 1 of the criminal code of
Ethiopia. The main purpose of criminal law, according to art. 1 of the same, is maintaining peace
and security of the society and it’s worth noting that criminal procedure code of Ethiopia is
interested in enforcing the criminal law. If there is an act that threatens the peace and security of
the society, the state machinery should react against it. So, there is state interest of making sure
that the community lives in peace.

But, there is also another interest, the interest of individuals, who may not have committed the
crime or may have committed the act, but may not be criminal for the same for reasons that we
will discuss through time in this course.

The criminal procedure code of Ethiopia tries to strike a balance between these two conflicting
interests.

If, for instance, Mr. A have suspected of murdering Mr. B, should he be send to jail till the
investigation is completed?

There are two conflicting interests in this case, the state on one hand wants to maintain the peace
and security of the society by sending Mr. A to jail until the investigation is completed in order
to prevent other crimes by the same person till the said process is finalized. On the other hand,
Mr. A may also have an interest in the case; because, he may not have murdered Mr. B.

Detaining the person may have resulted in another conflicting interest of the laws; criminal law
and the constitution of Ethiopia. The constitution of Ethiopia, specially, under chapter three,
advocates for the liberty, movement, freedom and etc of individuals to be respected. On the other
hand, the criminal code, especially under the first article advocates for the peace and security of
the community is maintained. But, the police officer comes to your house, show you a warrant,
inform you the act you’ve suspected of and take you to police station before establishing you’re a
criminal. Because, all criminal justice system tries to strike a balance between these two
conflicting interests. But the question is, “how we come up with a solution for such problem?”

Criminal justice systems of the world have designed so differently. But we can speak of two
different models; crime control model and due process of law. A criminal justice system will
adopt crime control model if it has a primary interest of controlling a commission of crimes. To
this end, anyone who has committed any crime has to be sent to jail. That is what he/she
deserves. Because, if there is a violation of criminal law, the state should respond forthwith;
Any-one who violates strict provisions of criminal law has to be arrested. It is obvious that this
model sometimes requires the sacrifice of some rights of individuals. So, the point of departure
of this model from other models of criminal justice systems is that it tries to protect crime in
whatever means even in sacrifice of individuals right for the fact that it hates crime.

The other alternative turns out to be due process of law model. This model is also interested in
controlling crimes, but it gives priority to the protection of individual’s right than strict control of
crime. This model advocates that controlling crime without protecting individual’s liberty is not
a right way.

Adversarial vs. inquisitorial system;

The fundamental and underlying difference of these two systems is drawn from founding truth in
any litigation. We’ve once already said that for a machinery of justice to operate correctly, facts
and laws has to go hand in hand. The combination of two will obviously resulted in something
which is deemed to be a product of the litigation. That product is called judgement. So, the
truthfulness of outcomes is a fundamental value in every legal system of the world. The question
which follows thereafter is, “how do we discover truth?” the fundamental difference of the two
major legal systems of the world (civil and common law legal system) do not have a fundamental
difference as to the outcome of every litigation must be correct. But, the difference highly lies on
answering the “how” question raised above. Because, the two legal systems have a fundamental
difference in the way of arriving at the truth.

The common law legal system thinks that the truth could only be found if the two parties collect
evidences and present to a court of law by themselves; This legal system, indeed, does not
believe in absolute truth. It says that truth is only procedural; there is nothing called absolute
truth; that can never be discovered.

On the other hand, the civil law legal system which follows the inquisitorial system says leaving
the discovery of truth for individuals is just a joke and truth could only be discovered if only if
government gets involve in it. In other words, this legal system says that truth could only be
discovered if proper investigation is made by proper organ which is a state/government.

A few provisions towards the beginning of the criminal procedure code of Ethiopia:

Some of the provisions under criminal procedure code have been changed over the last 50 years.
We have already noted that the legal regime that governs the criminal proceeding in Ethiopia
today is not exclusively governed by the criminal procedure code. There are so many other
legislation which have been enacted by the federal government there after; the most important of
which are the FDRE constitution itself; the federal court establishment proclamation, federal
police establishment proclamation, anti corruption proclamation and etc are other instances.

The principle of non-retroactivity of criminal law:

There is a general principle that criminal law should never be applied retroactively. The general
idea of non-retroactivity of criminal law is that whatever rules laydown in legislations should not
apply to acts that were committed before the date of enactment. In other words, the legality or
illegality of any act can only be inferred in light of the law that was effective on the date of the
commission of that act. But, the only exception is that if the new rules in terms of punishment
which were laydown in the new legislations are in favor of the defendant, the new law will
apply.

But the question is “what happens if there is a new procedural rules?” if there is a substantive
criminal law, it can never be applied to acts committed prior to its enactment. But what about
new procedural rules?

To begin with, most of the time, the principles that govern substantive and procedural law are
usually different like the principle of period of limitation. In civil matters, the period of
limitation has to be raised by the defendant in substantive matters. But the procedural period of
limitation has to be raised by the courts.
Art. 2. application as to time.

1. The provisions of this code shall apply from the day of its coming into force to all cases
pending on such day and occurring thereafter.

2. Any case pending on the coming into force of this Code shall be completed by the court
having jurisdiction under the law repealed by this Code:

Provided that where any case is pending before a court not mentioned in this Code, such
case shall be completed by the court having jurisdiction under this Code.

As it’s easy to understand from the reading of this article, the criminal procedure code is not
interested in the non-retroactivity of criminal law; rather it’s interested in when is the case
pending. So, if a case committed before the enactment of the procedure was pending on the
effective date the case will be governed by the new procedure.

Ethiopian legal system has a number of proceedings; these proceedings could be classified as
ordinary and special proceedings and the rules that govern ordinary proceedings are completely
different from the rules that govern special proceedings; article 5 of the criminal procedure code
mentions two types of special proceedings which are still relevant. One of those special
proceeding is the case of young criminals.