Preliminary Analysis of the Legislation Requirements of the Criminal Justice Administration Policy September 2009

Transcription

1 Preliminary Analysis of the Legislation Requirements of the Criminal Justice Administration Policy September 2009 Federal Democratic Republic of Ethiopia

2 Introduction The full implementation of the new Criminal Justice Administration Policy of Ethiopia will require many changes and additions to existing laws, in particular the Criminal Code, the Criminal Procedure Code and existing laws concerning criminal evidence. Changes to the laws governing the police and the penitentiaries will also be necessary. The following table maps out some of the main changes explicitly required by the new policy. There will no doubt be many more consequential law amendments identified when the detailed schemes called for by the policy are developed (e.g. plea bargaining, witness protection, international cooperation, etc.). One of the first tasks falling upon those who are responsible for the implementation of the new policy will be that of setting priorities for various strategic actions, including priorities for legislative initiatives. Given that a project to review the current Criminal Procedure Code is already underway, it would probably make sense to focus at first on the implications of the policy for that particular Code. Some of the most extensive changes that are proposed to existing laws relate to the following areas: Enforcement of the criminal law and the respective roles and responsibilities of the police and the public prosecution. The powers of investigation organs with respect to searches, seizures, arrests and detention. The responsibilities of the prosecutors with respect to decisions on investigation files, decisions to institute proceedings, stay proceedings or reinstitute them, decisions to terminate, to offer immunity to certain offenders. The responsibilities of the prosecutors with respect to plea bargaining. The dispositions of the law concerning remands in custody and bail provisions. The authorization of the interception of communications during a criminal investigation, and the authorization of other modern forms of criminal investigation. The protection of witnesses and victims, particularly children victims. 1

3 Jurisdiction over regulatory violations Measures to make the trial process more efficient. New procedures for expeditious trials, summary proceedings and flagrant offences Changes to facilitate the use of alternative remedial measures. Measures taken in cases involving young offenders. In many of these areas of law reform, it is likely that a policy analysis process will be needed in order to identify various legislative options and assess their merits as compared to international best practices. Extensive consultations with major stakeholders are also likely to be required in each of these areas. 2

4 I - Purpose, goals and areas of the policy targeted for strategic improvements 1.1. Purpose and Goals of the Policy Purpose of the Policy Goals of the Policy - This part of the policy sets general goals for procedural law reform: increasing fairness; improving accessibility, efficiency, effectiveness and the quality of the justice process Principles and Strategies of the Policy - The principles and strategies enunciated in the policy also apply in a general manner to the process of law reform and to the review of the Code of Criminal Procedure Areas targeted for Strategic and - One of these areas, of course, is law reform. Improvement Measures 1.4. Implementation of the Policy and Responsibility for Implementation - There should be an early attempt to complete the present analysis and to identify the main elements of a program of legislative reforms. These law reform initiatives should then be prioritized and a law reform plan for the development of legislative proposals and drafts, complete with objectives, timelines and respective responsibilities should be developed and approved at the highest level possible. 2 - Prevention of Crime 2.1. General The Role of Ministry of Justice in the - - Prevention of Crime 2.3. The role of other Institutions Monitoring and Evaluation of Crime and - - Victimization 2.5. Handling of Information Improving Criminal Investigation and Prosecutorial Services 3.1. Enforcement of Criminal Law Capacity building of the Investigation Laws reviewed to enhance efficient and effective criminal 3

5 Institution Policy Elements Current Dispositions of the Law Required Changes or Additions to the Law investigations with respect to: case management; law enforcement collaboration; witness protection; victim protection Goals and Principles of Criminal Investigation 3.4. The Respective Role of Criminal Investigation and the Prosecution Institution 3.5. Collaboration between the Investigation Institution and the Prosecution 3.6. Establishing a Prompt and Effective Investigation System 3.7. Time limit for Completion of Investigation and Commencing Prosecutions Chapter 2 (Police investigation) of the Criminal Procedure Code, in particular articles 22 and 23. Article 172 (2) as it relates to criminal investigation of young persons. Art. 23 (Duty of the police to investigate) to be amended to relate to the new responsibilities of the public prosecutor. Art. 24 (Recording of statement); Art 25 (Summoning of accused or suspected person); Art. 26 (Arrest); Art. 27 (Interrogation); Art. 29 (Procedure after arrest). Chapter 2 (Police investigation) of the Criminal Procedure Code, in particular articles 22 and 23, Art. 36 (Diary of investigation); Art. 37 (Report of police investigation); Art. 38 (Action by public prosecutor on receiving report); Art 39 (Closure of police investigation). Art 39 (Closure of police investigation) Art. 42 (cases where proceedings shall not be instituted). Reaffirmation in law of the key principles of criminal investigation adopted in the policy. Several changes will be required to the Criminal Procedure Code and perhaps also to other laws governing the police. Among the required changes: defining the authority of the prosecution services (and relevant procedure) to guide the criminal investigation; duty of the prosecution in cases of private prosecution and arrest by a private person); providing the authority of the public prosecutor to order the commencement of an investigation; providing the authority of the prosecutors to issue orders to an investigation body concerning a criminal investigation. New dispositions required to establish the authority of the prosecutors and support for the organizational framework envisaged by the new policy. The law could also create a responsibility for the public prosecutor to terminate criminal investigations when it has been unnecessarily and unfairly prolonged. Establishment of time limits and legal prescriptions as they relate to the conduct of a criminal investigation. Establishing that exceeding time limits for completion of 4

6 3.8. Decisions on Investigation Files Book I Art. 8 (Powers of public prosecution department); Art. 9 Duties of the police); and, Art. 10 (Police public prosecutors). Book II - Art. 38 (Action of public prosecutor on receiving report); Art. 39 (Closure of police investigation). Book II - Chapter 3 (Institution of proceedings) Priority Cases Book II - Chapter 3 (Institution of proceedings), in particular, Art. 40 (Duty to institute proceedings), and Art. 41 (Doubtful cases) Special Supervision by the Attorney General Book II - Chapter 3 (Institution of proceedings) Decisions not to Institute Proceedings Art. 42 (Cases where proceedings should not be instituted); Art. 43 (Form of refusal); Art. 44 ( Effect of refusal); and, Art. 45 (Form of and decision on application). Art. 47 (Persons entitled to conduct private prosecutions), and Art. 48 (Stay of proceedings in private prosecutions). investigation is a ground for not instituting proceedings. Review all dispositions of the Criminal Procedure Code relating to the duty of prosecutors to determine prosecution. Changes to the Criminal Procedure Code may perhaps be required to authorize the public prosecutor to make decisions to prioritize certain cases. Define that particular responsibility of the Attorney General in the Criminal Procedure Code. Procedural law to be amended to specify clearly the basis upon which a public prosecutor may decide not to institute proceedings in a given case. The reason for making such a decision should include: a) the evidence submitted by the investigation organ is insufficient; b) the manner in which the evidence obtained is unacceptable by law; c) the result of the criminal investigation has demonstrated that the suspect is not guilty; d) the act of which the individual is accused is either permitted by law, non-punishable, or subjected to pardon or amnesty; or when the individual has a immunity or the matter has already been decided by the relevant authority; and other reasons; 5

7 3.12. Decision not to Institute Proceedings on the ground of Public Interest 6 e) important witnesses for the prosecution are not found or are unavailable, or their testimony is not credible. Procedural law may also require amendments concerning the role of the prosecutor in staying proceedings conducted by private persons. Amendments to the Law on Evidence may also be required. Procedural law to be amended to specify clearly the basis upon which a public prosecutor may decide not to institute proceedings on the grounds of public interest, including the following main criteria: a) when the law clearly specifies the offence committed to be a minor offence and the punishment to be meted out for the offence is likely to be no more than a reprimand, warning, or minor punishment; b) when the suspect is unable to follow the proceedings due to senility, or terminal sickness; c) when the prosecutor believes that, even if the suspect commits a serious crime, the case is likely to get better and lasting solutions through traditional norms and institutions rather than through the regular criminal justice administration system; d) when it is believed that instituting proceedings will damage international relations or national interest; e) when the offence is punishable with simple imprisonment or upon complaint by the aggrieved person and reconciliation has been reached between the suspect and the aggrieved person; f) when instituting the proceedings could result in excessive and unacceptable corollary damages; g) when the offence is punishable with simple imprisonment and causes only minor damages and the suspect admits to the commission of the offence, genuinely resents his action and compensates the victim and asks for his/her forgiveness or takes other similar actions;

8 h) when the case loses its currency or its importance because of delay in taking it to court or for any other reason; i) when the offence is a minor offence and the damage is minor and the offence obviously appears to have been committed with an absolute lack of understanding or as a result of a legitimate mistake Termination of a Criminal Investigation Procedural law to be reviewed and amended as necessary to reflect the following principles: a) the prosecutor has the responsibility to issue an order for the termination of a pending criminal investigation when he/she has sufficient reason that is stipulated by the law. A criminal investigation shall be terminated when the alleged offence has already been the subject of a pardon, or is barred by period of limitation set by law, or has already been finally decided by a court having jurisdiction, or when it is doubtful that the offence has been committed or that the alleged offender is responsible for the offence, or when an order not to proceed is received from the Attorney General acting on the basis of public interest; b) when the circumstances that led to the termination of the criminal investigation have changed, the proceedings terminated under the order of the prosecutor may be instituted or reinstituted at the instruction of the Attorney General; c) in the cases of offences which, under the law, may only be prosecuted upon a formal complaint by the injured party or offences against individuals that are punishable by minor penalties, the investigation or the proceedings may be terminated upon the initiative of the victim or the concerned investigating body or upon an amicable solution being reached by the suspect and the injured party Exemption of certain Offenders from Prosecution Legal provisions to be established concerning the exemption from criminal liability or immunity for certain offenders (collaborators of justice) and the protection that they are 7

9 3.15. Police and Prosecution Oversight Mechanism The Power of Investigation Organs Articles 49 to 59 (arrest and detention) Arrest, Detention and Search of Suspects Bail Matters to focus on in considering Bail Applications Granting Bail with Pre-conditions Cases where Bail cannot be granted Investigation while the Suspect is in Remand or under Detention Interception of Private Communication without a Court Order Principle Book II - Articles 49 to 59 (arrest and detention). Book II - Articles (Police investigation) Book II - Articles 63 to 79 (Bail) Book II - Article 93 (Accused may be remanded) Book II - Articles 60(Conditions of remand); 61 (Detained person s right to consult an advocate); and 62 (Finding sureties). Also Book III (Preliminary Inquiry and Trial) inasmuch as it may be a cause for unnecessary delays which contribute to long periods of remand in custody. New dispositions are required. 8 entitled to receive. The conditions must be spelled out by the law (as detailed in the policy). Laws governing police oversight and prosecution oversight functions will be reviewed and strengthened as required. Comprehensive review of police powers provided in the Criminal Procedure Code, in the Law on Evidence, and in laws governing the police investigation (arrest, searches, interrogation, surveillance, electronic surveillance, use of DNA evidence, etc.). Comprehensive review of police powers provided in the Criminal Procedure Code concerning arrest and detention. Comprehensive review of police powers of remand and bail provisions of the Criminal Procedure Code. Comprehensive review of the remand provisions of the Criminal Procedure Code in order to introduce and widen the scope of alternatives to pre-trial detention as well as introduce custodial time limits; clearly stipulate time limits for the start and completion of the investigation, instituting of charges, and trial processes depending on the seriousness, the complexity or the magnitude of evidence; and, to ensure that cases involving individuals held in custody are dealt with fairly and expeditiously and without adjournments. Review of the law relating to interception of private communications, procedures authorizing these interceptions, and the admissibility of evidence thus obtained Interception of Private Communication without a Court Order Attachment and Administration of Book II Article 32; Book VI Reform of existing relevant laws or develop new laws to ensure

10 Property related to Crime Policy Elements Current Dispositions of the Law Required Changes or Additions to the Law Articles 211 (confiscation of property) and 212 (Sequestration of property). Also: Criminal Code (2004), articles (Confiscation and sequestration of property) and 100 (Forfeiture to the state). that provisions exist for the seizure and freezing of criminal assets and proceeds of crime, including the following main provisions: a) property relating to serious offences such as terrorism, corruption, drug trafficking, contraband and trafficking in people can be attached by order of a court until judgment is rendered; b) the legal criteria on the basis of which courts order the seizure, attachment, forfeiture and administration of property shall be clarified and stated in detail by taking into account the rights of third parties; c) courts can appoint trustees to administer the attached or forfeited property upon the request of the concerned body or on their own initiative Modern Methods of Investigation Book II Article 30 (examination Infiltration and Secret Surveillance of witnesses by the police); Article Protection of Informants and Agents 31 (No inducement to be offered.. to witnesses); Book III - Article 90 (Bond of witnesses) Collection, Use and Preservation of Evidence General Legality of Evidence Law of Evidence Criminal Procedure Code, Book III - Articles 84 (Taking evidence for prosecution)-85 (Accused statement)-86 (Statement of accused)-87 (Recording of evidence) Preliminary Investigation / Inquiry Criminal Procedure Code Book III (Preliminary Inquiry and Committal to Trial) Articles 80-93). Comprehensive review of the current dispositions of procedural law, police law, and evidence law relating to the use of modern methods of investigation. Review of the law on evidence to clarify that all evidence obtained illegally or in contravention of the ways prescribed by law is unacceptable and inadmissible at court. If there are rare exceptions to this principle, they must be specified in the criminal law. Criminal procedure law and other related laws need to be amended and new laws initiated that take into account the following points: a) in the case of offences under the jurisdiction of the High Court (such as terrorism, corruption, endangering the constitution and the constitutional order, organized crime, aggravated homicide and aggravated robbery) and unless the public prosecutor decides to go directly trial, the Court of First Instance shall hold a preliminary hearing for the 9

11 purpose of ensuring the safety of witnesses and evidence; b) the Court conducting the preliminary hearing shall record the proceeding in a way that insures the safe keeping, and proper organization of the evidence gathered during the investigation; and the accused also has the right to request the court to put on record the evidence they wish to submit Decisions on Exhibits - New disposition required establishing the authority of prosecutor to make decisions on exhibits in relation to criminal investigations Protection of Witnesses Criminal Procedure Code, Book III - Article 87 (Additional witnesses), 90 (Bond of witnesses), 121 (recall of witnesses), 124 (witnesses summons) International Cooperation General Types of International Cooperation and their Implementation Build on Articles 17 (Crimes committed outside of Ethiopia), 21 (Extradition), an 22 (Recognition of foreign sentences) of the Criminal Code (2004). 4 - Improving the Effectiveness and Fairness of the Criminal Justice Process Several new dispositions will be required concerning the protection of witnesses (and victims) in court and outside of court. Review of laws to eliminate obstacles to international cooperation, particularly in the investigation and prosecution of serious crimes General Improved Management of Criminal Cases General Strategy to be developed which may in turn identify required changes to Criminal Procedure Code Jurisdiction over Regulatory Violations Amendment to Criminal Procedure Code, Book I - Art. 4 (Jurisdiction as regards offence) Transfer jurisdiction over violations of regulations to regional state courts, the bodies authorized by law to handle such cases, and as appropriate, to the executive organs which issued the 4.3. Procedures for Expeditious Trial Process and Summary Proceedings General Attendance of the Suspect and Witnesses at Court Book III Article 90 (Bond of Witnesses). Also articles concerning 10 regulations Setting a time limit for the trial and the rendering of judgment will be specified in the relevant directives depending on the seriousness and complexity of the crime. Existing laws must be amended and new ones made to include the following main points:

12 remand and bail (Book II Articles 76 (Failure to appear), 77 (Released person likely to abscond), 78 (Discharge of sureties), and 79 (Forfeiture of recognizance); Book III Articles 124 (Witnesses summons), 125 (Bench warrant), and 127 (attendance of the accused). Book IV Articles (Failure to appear in public proceedings) and (Failure to appear in private proceedings) Accelerated Procedures Book II- Articles 19 (Flagrant offences), 20 (Assimilated cases); and 21 (Effects as regards setting in motion of proceedings and arrest). Book III Articles 167 to 170 (Procedure in cases of petty offences) Handling of Flagrant and other similar Offences Principle Procedures for Flagrant Offences Criminal Code (2004), Articles (Petty offences against persons and property). Book II- Articles 19 (Flagrant offences), 20 (Assimilated cases); and 21 (Effects as regards setting in motion of proceedings and arrest. 11 the accused and the witness are to be called by summons issued by a court; the investigation organs have the duty to ensure the attendance of the accused; and, the prosecution has the duty to ensure the presence of witnesses for the prosecution in court on the day of the hearing. Amend the Code of Criminal Procedure to establish and implement an expedited process by which it will be possible to dispose of criminal cases involving flagrant and other similar offences in an accelerated procedure so as to lessen the burden on justice organs, make use of fresh evidence, promptly resolve issues relating exhibits, and ensure respect for the rights of victims and suspects. Develop a procedure that will allow the speedy disposal of proceedings related to flagrant offences and other offences that do not involve complicated issues of evidence. Establish the authority of the public prosecutor to decide, taking into account the nature of the offence and the availability of evidence and the interest of the suspect and the victim, whether certain flagrant and other offences should be submitted to this accelerated procedure Reverse Onus of Proof Review of the law of evidence and the Criminal Procedure Code concerning the burden of proof in certain cases Disclosure of Evidence, Guilty Pleas and

13 Plea Bargaining General Notification or Disclosure of Evidence Book III Articles 80 to 89 (Preliminary inquiry and committal to trial) Plea Discussion and Plea of Guilty The Purpose and Ways of Plea Discussion Reforming the Law to Introduce Plea Discussion Plea of Guilty Withdrawal of Proceedings Book IV Articles 132 (Plea of accused), 133 (Plea of not guilty), 134 (Plea of guilty), and 135 (Amendment of plea). Also Book IV Chapter 3, Articles 108 to 122 (The Charge). Chapter 6 (concerning the injured party in criminal proceedings) is also relevant. Need to introduce a legal framework within the criminal justice system to enable the prosecution and the defense to disclose to each other at the earliest possible time the list of evidence they intend to rely on in the event of a trial. The requirements to disclose evidence must be set in the Code of Criminal Procedure as well as the procedure to be followed when this requirement has not been satisfied. establish a mutual requirement for both the prosecution and the defense to disclose to each other the list of evidence they intend to rely on in the event of a trial; Amend the criminal procedure and other related laws so as to enable plea discussion to take place; establish a legal framework to introduce plea bargaining/ discussion in the criminal justice system; affirm in the relevant law the authority of the public prosecutor to withdraw or stay proceedings against an accused; Establish the authority of prosecutors to reinstate proceedings in certain cases; and, Establish the duty of the court to examine the basis of a plea of guilty Diversion and Alternative Remedial Measures General Alternative Remedial Measures Principle Criteria for Alternative Remedial Measures Conditions to be fulfilled in the Application of Alternative Remedial Measures Alternative Remedial Measures to be Decided by the Public Prosecutor See article 610 (Compensation) of the Criminal Code (2004). Procedural laws must provide that the public prosecutor is authorized, in specified cases, to take any of the following remedial measures: a) allow the suspect to follow, on his own or at the state's expense, to undertake medical treatment, or academic and vocational training, or ethical education in an appropriate institution; b) support a reconciliation process between the suspects and the victims and, if appropriate, the payment of compensation to the victims with the help of government or private intermediary arbitral institutions; 12

14 c) direct the suspect to undertake compulsory community services; and, d) impose a temporary residence or detention in a specified location and others Special Conditions The law must specify the authority of the prosecutors in cases where the offender does not comply with the conditions of the alternative measures Legal Representation of Defendants and Strengthening the Defence Bar Representation by a Lawyer Strengthening the Defence Bar 4.8. Strengthening the Appeal System and providing Compensation for Wrongfully Convicted Individuals Strengthening the Appeal System Book V Appeals and applications to set aside judgments given in default. Thus laws must be reviewed to ensure that: a) the right of any suspect or arrested person to legal counsel or representation of his choice is protected; b) the state must appoint an attorney to represent indigent defendants when not doing so may result in miscarriage of justice; c) investigation officers have the duty to inform suspects in the language that they understand their right of legal representation and must make arrangements for them to exercise the right; and, d) the state must also, in the interest of justice, make provisions for the appointment of an attorney to represent individuals who are seeking redress and compensation for the damage they suffered as a result of a serious criminal offence or a violation of their human rights. Amendments to the Criminal Procedure Code are required to establish the powers of the prosecutors or an aggrieved individual to appeal a court judgment or order Appeal Cassation Review Review of final judgments Providing Compensation for Book VII, Articles 220 (cost of The relevant laws need to clearly state that people who are 13

15 Wrongfully Convicted Individuals 4.9. Strengthening the Capacity of the Prosecution and Investigation Organs Strengthening the Capacity of Investigation Organs Strengthening the Capacity of the Prosecution Crimes relating to Computers and the Internet Monitoring the Performance of the Criminal Justice System Collaboration between Justice Organs of the Federal Government and Regional States public prosecution), 221 (costs of private prosecution), and 222 (Injured party) include provision for the payment of costs of prosecution (as well as the cost of the defense in certain limited cases), there is no mechanism in law for the compensation of the wrongfully convicted individuals. Criminal Code (2004), Articles Improving the Fairness and Effectiveness of Criminal Sanctions 5.1. Contents of Sentencing Guidelines 5.2. Sentencing Guidelines Review of Chapter II of the Criminal Code (2004) (ordinary punishments applicable to adults) Execution of Penalties and Other Measures Changes required to Proclamation No. 365/2003 providing for the Establishment of the Federal Prisons Commission. Article 113 of the Criminal Code (2004) concerning conditional release/probation. imprisoned or sentenced to death penalty or with fine as a result of the final judgment a court, or their heirs or spouses, are entitled to equitable compensation from the state for the moral and property damage caused by the judgment if, subsequent to the execution of the judgment, it is established by a court that they did not commit the offence or were not guilty. Review of dispositions of the Criminal Code (2004)concerning computer crime The sentencing guidelines which will be developed may or may not be enacted in law. Procedural laws concerning alternatives to incarceration will be required, including laws regarding probation and other alternative sentences. Various changes to the laws governing the prisons will be required in order to give effect the correctional reforms envisaged by the policy. 14

16 6 - Special Handling and Care to Victims of Crimes, Young Offender and Vulnerable Groups 6.1. Ensuring Respect for Victims of Crime Criminal Code provisions The Right of Victims to participate in concerning the compensation of Criminal Investigation, Charging and Trial victim from the proceeds of crime seized by the state Handling of Young Offenders General Legal Protection to Young Offenders Preference to Alternative Remedial Measures Execution of Alternative Remedial Measures Criminal Code (2004) Articles 52 (Infancy exoneration of criminal liability), 53 (Special provisions applicable to young persons), 54 (Expert opinion), 55 (assessment of sentence); 56 (Criminals over the age of 15 but under 18 years of age). Also Criminal Code (2004) Chapter 4 (Measures and penalties applicable to young persons). Criminal Procedure Code (2004), Book IV, Articles 171 to 175 (Procedures concerning young persons). Article 661 (Criminality of minors) of the Criminal Code (2004). Criminal Code (2004) (Measures and penalties applicable to young persons). Review of procedural law to ensure that victims of crime receive adequate protection under the law. Review of witness protection provisions in procedural law. Review of procedural measures available under the law to protect child victims and witnesses. Incorporate clear legal provisions in the law addressing the special handling of female suspects and victims as well as victims of gender-based violence. Review existing Criminal Code and Criminal Procedure Code to ensure that young persons are not to be compelled, on the assumption of equality before the law, to testify, to plead guilty, to be subjected to cross examination or to be prosecution witnesses. Establish in law that the use of alternative remedial measures is the preferred response to juvenile crime, unless it becomes necessary to institute formal proceedings, either because the alternative measure is not producing the desired effect or because special circumstances or the grave nature of the offence committed dictate it. Review of Criminal Code provisions concerning punishment and reeducation of young persons

17 Establishment of Special Units Attention to the Circumstances of - - Vulnerable Groups October