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Criminal Law I

Teaching Material

Developed By:

1) Mrs. Glory Nirmala K.

2) Ato Serkaddis Zegeye

Sponsored by the Justice and Legal System Research Institute

2009

• Introduction …………………………………………………………………………………….... UNIT-I – INRODUCTION TO CRIMINAL LAW
• Objectives …………………………………………………………………………………………
  • Section 1: General Considerations ……………………………………………………………..
• 1.1. The Place Of Criminal Law In Criminal Science…………………………………………….
• 1.2. Nature And Scope Of Criminal Law…………………………………………………………
• 1.3. General Objectives Of Criminal Law………………………………………………………...
• 1.4. Criminal Law, Private law and Morality-Distinguished……………………………………..
• Section 2: The Concept of Crime ……………………………………………………………...
• 2.1. Crime is a Deceiving Concept…………………………………………………………….
• 2.2. Crime Is A Multidimensional Problem……………………………………………………
• 2.3. Definition Of Crime……………………………………………………………………….
• 2.4. „Crime‟ Distinguished From „Civil Wrongs‟……………………………………………...
  • Section 3: The Development of Criminal Law of Ethiopia ………………………………....
• 3.1. Historical Background……………………………………………………………………. - 2005 Proclamation No. 414/ 2004………………………………………………………... 3.2. The Criminal Code of the Federal Democratic Republic of Ethiopia,
• 3.3. Scheme of the Criminal Code of FDRE, 2005…………………………………………….
• 3.4. Classification of Crimes under the Criminal Code………………………………………..
• Unit Summary …………………………………………………………………………………..
• References ………………………………………………………………………………………
• Introduction …………………………………………………………………………………….. UNIT – II-BASIC PRINCIPLES OF CRIMINAL LAW
• Objectives ………………………………………………………………………………………..
• Section 1: The Principle of Legality …………………………………………………………... ii
• 1.1 A Brief History of the Principle……………………………………………………………...
• 1.2 ‘nullum crimen sine lege’ ……………………………………………………………………
• 1.3 „ nulla poena sine praevia lege poenali’ ……………………………………………………..6
• 1.4 „ Non bis in idem’ (Nobody shall be punished twice for the same act) (Art 2/5)……………
• Section 2: The Principle of Equality ………………………………………………………….
  • 2.1. 2.1. Meaning of the “Equality” Principle……………………………………………….
    • 2.1.1. Equality Before The Law………………………………………………………..
    • 2.1.2. The Equal Protection of Laws…………………………………………………...
  • 2.2. Exceptions By Virtue Of Recognized Immunities……………………………………...
    • 2.2.1. Immunities Sanctioned by Public International Law…………………………....
    • 2.2.2. Immunities Sanctioned By The Ethiopian Constitution………………………....
    • 2.2.3. Requirements of Individualization of Criminal Justice………………………….
    • 2.2.4. Special Treatment of Women, Young Persons and the Feebleminded………….
• Section 3: The Principle of Individual Autonomy ……………………………………………
• 3.1.Meaning of the Principle…………………………………………………………………….
• 3.2.The Factual Element of Autonomy………………………………………………………….
• 3.3.The Normative Element of Autonomy………………………………………………………
• 3.4.Some Instances which can raise Dilemmas Relating to the Principle of Autonomy………..
• Unit Summary …………………………………………………………………………………..
• References ……………………………………………………………………………………..
• Introduction …………………………………………………………………………………… UNIT-III-JURISDICTION OF THE ETHIOPIAN CRIMINAL CODE
• Objectives ………………………………………………………………………………………
• Section.1. Fundamental Principles of Application of Jurisdiction …………………………
• 1.1. Application Of The Criminal Code As To Place: The jurisdiction of the ………………... iii - 1.1.1. Principal Jurisdiction:……………………………………………………………. - 1.1.1.1. Territorial Application Of The Principal Jurisdiction…………………. - 1.1.1.2. Extra-Territorial Application Of The Principal Jurisdiction…………...13 - 1.1.2. Subsidiary Jurisdiction…………………………………………………………...
• 1.2. Place and Time of Crime…………………………………………………………………..
• Section 2: Extradition ………………………………………………………………………..
• 2.1.Extraditable Persons……………………………………………………………………….
• 2.2.Extradition Crimes…………………………………………………………………………
• 2.3.Extradition under the Criminal Code of FDRE 2004……………………………………...
  • 2.3.1. Extradition of a “Foreigner” Art. 21(1)…………………………………………....
  • 2.3.2. Extradition of “Ethiopians” Art. 21 (2)…………………………………………....
• 2.4.Procedure to request for Extradition (Art. 21/1 and 3)……………………………………
• Unit Summary ………………………………………………………………………………..
• References …………………………………………………………………………………....
• Introduction …………………………………………………………………………………... UNIT- IV- Conditions OF CRIMINAL LIABILITY
• Objectives ……………………………………………………………………………………...
• Section.1. The Crime And Its Commission ………………………………………………….
• 1.1. The Essential elements of crime…………………………………………………………... - 1.1.1. Legal ingredient of crime…………………………………………………….... - 1.1.2. Material element of crime……………………………………………………... - 1.1.3. Moral ingredient of crime……………………………………………………...
• 1.2. Analysis of provisions related to essential ingredients of crime………………………….. - 1.2.1. Intention………………………………………………………………………. - 1.2.2. Negligence……………………………………………………………………..
• Section 2: Relation Ship of Cause and Effect ………………………………………………. iv
• 2.1. Tests to establish cause and effect relationship…………………………………………..
• 2.2. Factors that might break the chain of causation………………………………………….
• 2.3. Difficulties in the assessment of physical element of crime……………………………..
• Section 3: Concurrence of Crimes …………………………………………………………...2
• 3.1.Guilt in case of crime………………………………………………………………………
• 3.2.Concurrence of criminal provisions………………………………………………………..
• Section 4: Corporate Criminal Liability …………………………………………………….
• 2.1.Goals of corporate criminal liability……………………………………………………….
• 2.2.Kinds of corporate liability………………………………………………………………...
  • 2.2.1. Criminal Liability………………………………………………………………..
  • 2.2.2. Civil liability……………………………………………………………………..
• 2.3.Principles of corporate liability……………………………………………………………
• 2.1.Principles of corporate liability under the Criminal Code of Ethiopia…………………....
• Unit Summary ………………………………………………………………………………..
• References ……………………………………………………………………………………2
• Introduction …………………………………………………………………………………... UNIT V: DEGREES IN THE COMMISSION OF CRIME
• Objectives ……………………………………………………………………………………...
• Section.1 Different Stages in the Commission of Crime ………………………………...….
• 1.1 Preparation…………………………………………………………………………………
• 1.2 Attempt……………………………………………………………………………………. - 1.2.1. Kinds of attempt………………………………………………………………. - 1.2.2. Mens rea in attempts…………………………………………………………...
• Section.2. Importance of Distinction between Preparation and Attempt …………………
• 2.1.Identification of stage of attempt………………………………………………………….. v
• 2.2.Renunciation and active repentance………………………………………………………..
• Unit Summary …………………………………………………………………………………
• References ……………………………………………………………………………………..
• Introduction ………………………………………………………………………………….... UNIT VI: PARTICIPATION IN THE COMMISSION OF CRIME
• Objectives ………………………………………………………………………………………
• Section.1 Participation in Principal Capacity ……………………………………………….
• 1.1 Material Criminal…………………………………………………………………………...
• 1.2 Moral Criminal……………………………………………………………………………...
• 1.3 Indirect Criminal……………………………………………………………………………
• 1.4 Co-offenders………………………………………………………………………………..
  • 1.4.1 Co-Criminals in general crimes and in special crimes………………………….
• Section 2. Participation in the Secondary Capacity …………………………………………
• 2.1.Incitement…………………………………………………………………………………..
• 2.2.Complicity………………………………………………………………………………….
• 2.3.Criminal conspiracy……………………………………………………………………...…
• 2.4.Participation of juridical persons in a crime………………………………………………..
• 2.5.Accessories after the fact…………………………………………………………………..
• Unit Summary ………………………………………………………………………………...
• References …………………………………………………………………………………….
• Model Examination …………………………………………………………………………..

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UNIT-I

INTRODUCTION TO CRIMINAL LAW

“The criminal law represents the pathology of civilization.” -Morris R. Cohen, Reason and Law 70 (1961)

Introduction:

Criminal Law is the body of law defining crimes against the community at large, regulating how suspects are investigated, charged, and tried, and establishing punishments for convicted criminals. Often the term ‗criminal law‘ is used to include all that is involved in ‗the administration of criminal justice‘ in the broadest sense. The criminal law identifies, defines and declares the conducts that it seeks to prevent and prescribes the appropriate punishments for them too. The law of Crimes has always been one of the most attractive branches of Jurisprudence, though it is true that both crime and criminal are looked upon with greatest hatred by all sections of the people in society. In fact the law of crimes has been as old as the civilization itself. Wherever people organized themselves into groups or associations the need for some sort of rules to regulate behavior of the members of the group inter se has been felt, and where there were rules of the society, infringements were inevitable. And it was realized that there was the necessity of devising some ways and means to curb such tendencies in the society that lead to violation of its rules. In every organized society. This should briefly explain the contents of the Unit. Certain acts are forbidden under the pain of punishment. Where one person injured another and the injury could adequately be compensated by money value, the ‗wrong-doer‘ was required to pay damages or compensation to the ‗wronged‘ individual. But in certain cases in addition to the liability to pay compensation the state imposes certain penalties upon the wrongdoer with the object of preserving peace in the society and promoting good behavior towards each other and towards the community at large. To prevent a crime from happening, or to deal effectively with a crime once it has occurred, we have to know ‗what the

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―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. The main aims of Criminal Science are:

1. To discover the causes of criminality,
2. To devise the most effective methods of reducing the amount of criminality,
3. To perfect the machinery for dealing with criminals.

Based on these three objectives, three main branches of Criminal Science have developed. They are:

1. Criminology : It is the study of crime and criminal punishment as social phenomena. This branch of criminal science is concerned with causes of crimes and comprises of two different branches.

a) Criminal Biology : This investigates causes of criminality, which may be found in the mental or physical constitution of the delinquent himself such as hereditary tendencies and physical defects.

b) Criminal Sociology : This deals with enquiries into the effects of environment as a cause of criminality. This branch focuses on the objective factors like social, political and economic conditions leading to criminality, also termed as criminal anthropology.

2. Criminal Policy or Penology: This branch of Criminal Science is concerned with limiting harmful conduct in society. It makes use of the information provided by Criminology. Therefore, the subjects of Criminal policy for investigation are:

a) The appropriate measures of social organization for preventing harmful activities,

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b) The treatment to be given to those who have caused harm, whether the offenders are to be given warnings, supervised probation, medical treatment, or more serious deprivations of life or liberty, such as imprisonment or capital punishment.

This branch of study is also termed as ‗Penology‘ and deals with treatment, prevention and control of crimes.

3. Criminal Law: The Criminal Policies postulated by the above twin sister- branches i.e. Criminology and Penology, are implemented through the instrumentality of ‗Criminal law‘. In other words, criminal policies are implemented through the agency of criminal law. The criminal law decides the special sanctions appropriate in each case. These sanctions range from death penalty through various kinds of degrees of deprivation of liberty, down to such measures as medical treatment, supervision as in probation, fines and mere warnings (admonishment).

Branches of Criminal law: Criminal law in its wider sense consists of two branches. a) Substantive Criminal Law, b) Adjective/Procedural Criminal law.

‗The Substantive Criminal law‘ lays down the principles of criminal liability, defines offences and prescribes punishments for the same. The Ethiopian Criminal Code does this business. However, the substantive criminal law by its very nature cannot be self-operative. A person committing a crime is not automatically stigmatized and punished. At the same time, generally, a criminal would not be interested in confessing his guilt and receiving the punishment. It is for this reason that ‗Procedural Criminal law‘ has been designed to look after the process of the administration and enforcement of the substantive criminal law. In the absence of procedural criminal Law, the substantive criminal Law would be almost worthless.

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The idea is to eliminate judicial discretion in the field of administration of criminal justice. It may, however, be noted that the recent legislations provide scope for more and more judicial discretion through judicial equity to attain criminal‘s reformation which is the ultimate goal of criminal justice. Finally, it is through ‗ Penal sanctions‟ imposed under the criminal law that the members of society are deterred from committing crimes. It is, therefore, obvious that no law can be effective without adequate penal sanctions.

1.3. General Objectives Of Criminal Law:

The objectives of Criminal law are the protection of persons and property, the deterrence of criminal behavior, the punishment of criminal activity and rehabilitation of the criminal.

a. Protection of Persons and Property:

Safety and a sense of security are the most important things for the survival of any society. Safety of a society includes personal safety i.e. safety of life and liberty and safety of property. To ensure safety there is the necessity of maintaining peace and order. This is possible only by an effective penal system, which is strong enough to deal with the violators of the law and enable the people to live peacefully and without fear of injury to their lives and property. Thus, the prime objective of criminal law is protection of the public by maintenance of law and order.

―Tort law‖, a branch of civil law, also protects persons and property. The difference between tort law and criminal law is that tort law results in money damages, whereas criminal law results in loss of freedom by sending a person to jail or prison. Private interests are served through the awarding of damages. The public interests are served by punishing criminal activity. If all persons respected everyone else‘s person or property, there would be very little reason for criminal law.

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b. Deterrence of Criminal Behavior:

A key to the hoped-for reduction in criminal behavior is that our criminal laws present a sufficient deterrent to antisocial behavior. A ―deterrent‖ is a danger, difficulty or other consideration that stops or prevents a person from acting. The presumption inherent in criminal law is that if we make the punishment sufficiently harsh, persons who might do something criminal are prevented from doing so because they fear punishment. If enough people fear punishment, there will be considerable reduction in criminal activity.

However, our Constitution states in Art. 18 that, there shall be no cruel and unusual punishment. Certainly if our laws allowed the death penalty for even minor offences, there would probably be fewer minor offences. But is that just? To lose one‘s life for stealing a loaf of bread seems too high a price to pay for fewer loaves of bread being stolen. The problem is to decide how much punishment will deter criminal behavior without going too far.

c. Punishment of Criminal Activity:

Since we will most likely be unable to deter all criminal activity, our laws accept that a certain level of criminal activity will exist in society. Accordingly, we punish criminal activity for punishment‘s sake. If a criminal takes something without paying for it or injures other without a justification, the criminal law makes that individual pay for it through deprivation of liberty for a period of time.

d. Rehabilitation of the Criminal :

Once convicted, a criminal will begin to serve a sentence in a prison. But that is not where our criminal justice system ends. Our government has designed various programs to educate and train criminals in legitimate occupations during the period

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 If such declaration of the punishable acts does not deter people from committing of crimes then the following methods are employed to deal with the criminals: a) Provide for punishment and reform of criminals, and b) Provide for measures to prevent the commission of further crimes.

Therefore, the function of a thing is ‗what it is meant to actually do‘ towards a certain purpose. Function is thus a special activity or task while purpose is the ultimate objective to be achieved. Therefore, it follows that the Criminal Code of Ethiopia endeavors to achieve the purpose of ―ensuring order, peace and security of the state and its inhabitants for the public good‖ through declaration of forbidden conduct, providing for suitable punishment, reform of criminals and preventive measures to control the commission of crimes.

1.4. Criminal Law, Private law and Morality-Distinguished:

For a proper appreciation of the distinction between criminal law, civil law and morality, it is necessary to understand the ―concept of wrongs‖ and their classification.

A wrong is an act forbidden by the society. In other words, it is a violation of rules, which are accepted by the society. Society prohibits certain activities basing on the general conscience of the society, which is found in the values and norms of the society. The concept of morality explains the values of a particular society. This means that a given society declares certain acts, which offend the moral conscience of that society as forbidden. These forbidden acts can be described as moral wrongs. However, All moral wrongs are not wrongs in the legal sense.

Since all violations of law cannot be characterized as crimes, there is a necessity to identify the particular class of violations or forbidden acts or wrongs, to understand

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the concept of crime. Therefore, we shall proceed to broadly classify the body of wrongs.

Classification of Wrongs:

Since all violations of law cannot be characterized as crimes, there is a necessity to identify the particular class of violations or forbidden acts or wrongs for the purpose of defining what ‗crime‘ is.

Wrongs

(Acts forbidden by the Society)

Moral wrongs Legal Wrongs (Interference of law is considered (where the interference of law is necessary) unnecessary)

Civil wrongs Criminal wrongs (Law interferes at the (State as a matter of right interferes in most of the cases) instance of the injured party)

 Moral wrong :

This is a wider term including a wide range of reprehensible acts, which tend to reduce human happiness. There is a long list of such acts including ingratitude, hard-heartedness, absence of natural love and affection, habitual idleness,

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sedition, treason and the like, disturb the very fabric of law and order and jeopardize the state‘s existence or create a wide spread panic. Therefore, the state stresses the necessity of punishing the wrong-doer rather than concerning itself with the question of payment of compensation to the injured party by the wrong-doer. This category of wrongs is called as ―public wrongs‖ or ―crimes‖ for which criminal proceedings are instituted by the state and the culprit is punished.

 Relation between Morality and Criminal Law:

Though morality and law can be precisely distinguished, they are not totally distinct phenomena. They are related to each other in that they both aim at maintaining social order. There is a category of wrongs towards which law and morality react with common hatred. They are offences like murder, rape, arson, robbery, theft, etc. Law and morals powerfully support and greatly intensify each other in this matter. Everything that is regarded as enhancing the moral guilt of a particular offence is recognized as a reason for increasing the severity of the punishment awarded to it.

Sir Stephen year stated, ―the sentence of the law is to the moral sentiment of the public in relation to any offence what a seal is to hot wax‖. When a member of the society does a wrong involving serious moral guilt, the moral sentiment of the society gets offended so seriously that the whole society waits in all its eagerness to see that the offender is punished severely. This general disapprobation excited against the wrong doer may pass away with time. But the fact that he has been convicted and punished as a ―thief‖ or ―murderer‖ or ―cheat‖ or ―rapist‖ stamps a mark upon him for life. Thus the moral sentiment of the public gets converted into a permanent final judgment what might otherwise be a transient sentiment.

Thus, according to the author the criminal law proceeds upon the principle that ―it is morally right to hate criminals and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it.‖ However, the recent tendency of the reformists is on the opposite lines, they say ―hate the crime not the

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criminal‖ basing their argument on the Gandhian philosophy i.e. ―hate the sin not the sinner‖, because a criminal is not born, he is made. Different circumstances and experiences after his birth in the society become responsible for his becoming a criminal. Thus, today the ―Reformative Justice‖ is the philosophy of the state.

Cohen, in his article ―Moral Aspects of the Criminal Law‖ (49 Yale L.J.989- (1940) observes ― …… what I wish to insist on is that the criminal law is an integral part of the legal system and is subject to same considerations which do and should influence the whole. More specifically, the criminal law cannot be distinguished from the rest by any difference of moral principle. Some crimes, to be sure, are shocking; but there are many crimes that are felt to be much less reprehensible than many outrageous forms of injustice, cruelty or fraud, which the law does not punish at all, or else makes their perpetrator liable to money damages in a civil suit….‖

Review Questions:

1. Briefly discuss the scope of Criminal Law in the field of Criminal Science.
2. What are the main objectives of criminal law?
3. Explain the purpose and functions of Criminal Law in terms of the Revises Criminal Code of 2004.
4. Explain the relationship between morality and criminality.

Exercise: Examine the Criminal Code and find out the provisions that emphasize the objective of reformation.

Group Discussion: What specific objectives of punishment are fulfilled in death penalty? Should we still retain it as a type of punishment in our Criminal Code?