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result would follow. The usual illustration is that A, desiring to destroy B's property, sets fire to B's house while B is inside. Knowing that B is at home, A foresees the possibility of harm to B. Injury to B would be treated by Article 58, as the result of criminal intent rather than negligence. A more lenient view might place it in the negligence category.
Criminal negligence is defined by the first sentence of Article 59(1). (“A criminal negligence act” could be better rendered into English as “a criminally negligent act" or simply "criminal negligence.") The basic idea is presented that through lack of foresight or due to poor judgment, the offender has carried out the prescribed act.
The Ethiopian Penal Code uses the defendant's state of mind to determine guilt or innocence. Article 59(2) makes the punishment of negligence exceptional and restricts it to cases where it is justified. The degree of guilt is a guide to the assessment of the sentence in negligence cases under Article 59 (2).
The kinds of "Culpability” proposed in the draft code compare unfavorably with the provisions of the Ethiopian Code. Sections 302 (c) and 302 (d) of the proposed Code can be combined into a single provision under the concept of criminal negligence. This is possible because its concepts of both engaging in conduct "recklessly” and engaging therein "negligently" involve the same element of “a gross deviation from acceptable standards of conduct." This approach has been accomplished successfully for thirty years in at least one American jurisdiction (see "The Louisiana Criminal Code--a comparison of prior Louisiana Criminal Law.” Dale E. Bennette, 5 La. L. Rev. 6 at page 11. [Dec. 1942]).
QUESTION 4 Causation is handled by the Ethiopian Code in a single article, as follows: Article 24. Relationship of Cause and Effect
(1) In cases where the commission of an offence requires the achievement of a given result the offence shall be deemed to have been committed only if the result achieved is the consequence of the act or omission with which the accused person is charged.
This relationship of cause and effect shall be presumed to exist when the act or omission within the provisions of the law would, in the normal course of things, produce the result charged.
(2) Where there are concurrent causes or in the case of an intervening cause whether due to the act of a third party or to a natural or fortuitous event, this relationship of cause and effect shall not apply when the extraneous cause was in itself sufficient to produce the result.
If, in such a case, the act or omission with which the accused person is charged in itself constitutes an offence he shall be liable to the punishment specified for such an offence.
The modified “but for" or sine qua non test of $305 of the proposed Federal Criminal Code imposes a broader criminal responsibility than the Ethiopian Penal Code. Under the latter, when a concurrent extraneous cause is in itself sufficient to produce the result, the accused is exonerated, whether or not his conduct might have been sufficient in itself. He is given the benefit of the doubt in such cases, whereas the proposed Federal Code is expressed in the conjunctive to require both a concurrent cause sufficient to produce the result and that the accused's conduct was clearly insufficient.
The Ethiopian Penal Code. Book I, Title III, “Conditions of Liability to Punishment in Respect of Offences,” contains a Chapter on criminal responsibility. Articles 48, 49, and 51 provide for defenses of irresponsibility and limited responsibility and for expert medical opinion. Article 48. Criminal Responsibility and Irresponsibility
(1) The offender who is responsible for his acts is alone liable to punishment under the provisions of criminal law.
A person is not responsible for his acts under the law when, owing to age. illness, abnormal delay in his development or deterioration of his mental faculties, he was incapable at the time of his act, of understanding the nature or consequences of his act, or of regulating his conduct according to such understanding.
(2) The Court may order in respect of an irresponsible person such suitable measures of treatment or protection as are provided by law. (Art. 133-135). Article 49. Limited Responsibility
(1) He who owing to a derangement of his mind or understanding, an arrested mental development or an abnormal or deficient condition was not, at the time of his act, fully capable of understanding the nature and consequences thereof or regulating his conduct according to such understanding shall not be liable in full to the punishment specified for the offence committed.
The Court shall without restriction reduce the punishment. (Art. 185).
(2) In addition to a penalty the Court may order such appropriate measures of treatment, correction or protection as are provided by law. (Art. 133-135). Article 51. Doubtful Cases, Erpert Eramination
(1) When there is a doubt as to the responsibility of the accused person, whether full or partial, the Court shall obtain expert evidence and may order an enquiry to be made as to the character, antecedents and circumstances of the accused person.
Such evidence shall be obtained when the accused person shows signs of a deranged mind or epilepsy, is deaf and dumb or is suffering from chronic intoxication due to alcohol or drugs.
(2) The expert or experts shall be appointed by the court under the ordinary rules of procedure. The Court shall define their terms of reference and the matters to be elucidated.
The expert evidence shall describe the present condition of the accused person and its effect upon his faculties of judgment and free determination. It shall, in addition, afford guidance to the Court as to the expediency and the nature of medical treatment or safety measures.
(3) On the basis of the expert evidence the Court shall make such decision as it thinks fit. In reaching its decision it shall be bound solely by definite scientific findings and not by the appreciation of the expert as to the legal inferences to be drawn therefrom.
Articles 133-135 are found in Book II, Section II, "Measures Applicable to Irresponsible Persons and Offenders with a limited Responsibility." Article 133. Principle
After having decided (Art. 51) whether the offender is irresponsible (Art. 48) or whether he is of a limited responsibility (Art. 49), the Court shall apply the following provisions having regard to the circumstances and requirements of the case. Article 134. Confinement
(1) If the offender, by reason of his condition, is a threat to public safety or order, or if he proves to be dangerous to the persons living with him, the Court shall order his confinement in a suitable institution.
(2) If he is in need of treatment, he shall either be treated in the institution in which he is confined or be transferred to an appropriate institution in accordance with Article 135. Proper provision may be made for his safe custody. Article 135. Treatment
(1) Where an offender is suffering from a mental disease or deficiency, deaf-and-dumbness, epilepsy, chronic alcoholism, intoxication due to the abuse of narcotics or any other pathological deficiency and requires to be treated or placed in a hospital or asylum the Court shall order his treatment in a suitable institution or department of an institution.
(2) Where the Court is satisfied that the offender is not dangerous and can be treated as an out-patient, it shall order accordingly.
The Court shall then order the offender be kept under proper supervision and control either by the medical expert in charge of the case or by some other competent authority. An order made under this Article may be revoked and the Court may require such reports as it considers necessary.
Other pertinent codal provisions for cases involving insanity defense are found in Articles 136 and 137.
Article 136. Duration of Confinement or Treatment
(1) The competent administrative authority shall carry out the Court's decision concerning treatment and confinement.
Treatment and confinement shall be of indefinite duration but the Court shall review its decision every two years. When the offender is cured, the administrative authority with the consent of the Court may release the offender.
As soon as, according to expert opinion, the reason for the measure has disappeared the administrative authority shall, after having referred the matter to the Court and upon its decision, put an end to the measure ordered.
(2) When the Court is satisfied that the treatment or confinement may be suspended, it may on the request of the administrative authority order accordingly.
The Court shall release the offender to the supervision of a selected charitable organization for not less than one year and shall in addition impose such conditions as may be necessary (Art. 210).
(3) Any order made under this Article may at any time be revoked where public safety or the condition of the released person so requires.
If the probation period is successfully undergone, the release shall be final. Article 137. Effect of Limited Responsibility Upon Penalty
(1) Where an offender is of limited responsibility, a mitigated penalty as provided by law (Art. 49) may be imposed by the Court.
The Court may when it is necessary make an order under Art. 134 or 135 and the enforcement of the penalty shall be suspended.
(2) Upon termination of the measure ordered the Court shall, upon a report made by the Management of the institution or the responsible authority of the charitable organization, decide whether the enforcement of the penalty is still necessary and determine the extent to which the period of confinement or treatment shall be deducted from the sentence unserved.
The court shall take into account the gravity of the offence committed, the antecedents and character of the offender, the effect the internment or treatment had upon his condition and the likelihood of his permanent recovery.
(3) No penalty shall be enforced where the Court considers it inespedient so to do.
The Ethiopian Penal Code's provisions on criminal responsibility, it will be noted, immediately precede its provisions on criminal guilt. Both responsibility and guilt are necessary elements of any criminal conduct. The offender must be responsible for his acts and he must act either intentionally or negligently. Responsibility is a condition precedent to the fulfillment of the requirement as to guilt. In Ethiopia sanity is a prerequisite to guilt.
For a finding of total irresponsibility the mental condition must render the defendant incapable of understanding or self control at the time of the act. This is substantially the same provision contained in $503 of the proposed code. If the court determines that the accused is irresponsible, then “measures" (medical treatment or confinement) are applied in lieu of punishment.
Although the provisions for limited responsibility may be found in many codes, it may be easily criticized on the ground that it is not possible to evaluate diminished responsibility accurately. On the other hand, the court must order medical treatment whenever it is clearly needed, and the court is thus given the flexibility necessary to deal with diminished responsibility in an enlightened way.
QUESTION 6 Alcohol and drug intoxication do not diminish responsibility under the Ethiopian Penal Code. Article 50. Intentional or Culpable Irresponsibility
(1) The provisions excluding or reducing liability to punishment shall not apply to the person who in order to commit an offence intentionally put himself into a condition of irresponsibility or of limited responsibility by means of alcohol or drugs or by any other means. The general provisions of this Code are applicable in such a case.
(2) If an offender by his own fault has put himself into a condition of irresponsibility or of limited responsibility while he was aware, or could and should have been aware, that he was exposing himself, in such a condition, to the risk of committing an offence, he shall be tried and punished under the ordinary provisions governing negligence if the offence committed is punishable on such a charge. (Art. 59).
(3) In the case of an offence which was neither contemplated nor intended and was committed in a state of complete irresponsibility into which the offender put himself by his own fault, Article 485 of the Special Part of this Code relating to offences against Public Safety shall apply.
For cases involving criminal negligence (see answer to Question #1) as an element of the offense, intoxication is handled in the same manner as the American method. For cases described in $ (3) of Article 50/unpremeditated irresponsible acts—there is a special sentencing provision limiting the term of imprisonment to a maximum of one year. Article 485. Disturbances Resulting From Acts Committed in a state of
Culpable Irresponsibility. Whosoever, being deliberately or through criminal negligence in a state of complete irresponsibility due to drunkenness, intoxication or any other cause, commits while in such a state an act normally punishable with imprisonment for at least one year, is punishable with fine or with simple imprisonment not exceeding one year, according to the degree of danger or gravity of the act committed.
The provision of Article 51 (see answer to Question #5) concerning the use of expert witnesses applies to cases involving alcohol or drugs as well as to those involving a question of sanity or other afflictions of the nervous system.
In cases of confirmed alcoholism, the provisions of Article 48 or Article 49 can supersede the provisions of Article 50. In such a case, confinement and medical treatment would be the disposition rather than a jail sentence, once the disease and the causal relationship to the act were established to the satisfaction of the court.
QUESTION 7 The self defense provision of the Ethiopian Penal Code is a generalized statement covering self defense, defense of others, and defense of property. Article 74. Self-Defence
An act done under the necessity of self-defence or the defence of another person against an imminent and unlawful assault or a threat of an assault directed against a legally protected belonging shall not be punishable if the assault or threat could not have been otherwise averted and if the defence was proportionate to the needs of the case, in particular to the danger and gravity of the assault and the importance of the belonging to be defended.
The limitations placed on self defense are found in the next article of the Code. Article 75. Excess in Self-Defence
(1) When a person in repelling an unlawful assault exceeded the limits of self-defence by using disproportionate means or going beyond the acts necessary for averting the danger, the Court shall, without restriction, reduce the penalty (Art. 185).
(2) The Court may impose no punishment when the excess committed was due to excusable fear, surprise or excitement caused by the assault.
(3) In the case of acts exceeding strict self-defence he who repelled the assault shall remain civilly liable for the injury caused by his excess.
Use of force by persons in charge of minors is regulated by a special article. Article 548. M treatment of Minors
(1) Whosoever, having the custody or charge of an infant or a young person under fifteen years of age, deliberately neglects, ill-treats, over-tasks or beats him in such a way as to affect or endanger gravely his physical or mental development or his health, is punishable with simple imprisonment for not less than one month. The Court may in addition deprive the offender of his family rights.
(2) The right to administer lawful and reasonable chastisement is not subject to this provision (Art. 64).
As indicated in the answer to Question #1, there is a group of offenses which are called "petty offenses.” They are treated as minor offenses for which lesser penalties are prescribed. Otherwise all crimes are classified only to the extent that related types of offenses are placed together under a "title" and "chapter" in the Code. For sentencing, each article which defines an offense sets the punishments which may be imposed.
There are many provisions relating to sentencing which elaborate upon the mandate of Article 86. Article 86. Calculation of Sentence
The Court shall determine the penalties and other measures in conformity with the provisions of the General Part of this Code and the special provisions defining offences and their punishments.
The penalty shall be determined according to the degree of individual guilt, taking into account the dangerous disposition of the offender, his antecedents, motive and purpose, his personal circumstances and his standard of education, as well as the gravity of his offence and the circumstances of its commission.
In the Special Part of the Code, which defines each offense, each article contains the appropriate sentence for each crime. However, some sentences refer to general articles concerning "fines" or "simple imprisonment," or a combination of the two. A fine may range from one dollar to five thousand dollars (Article 88) and simple imprisonment, from ten days to three years (Article 105).
"Rigorous imprisonment” (Article 107) is normally for a period of one to twenty-five years, but where it is expressly so laid down by law it may be for life. A sentence of rigorous imprisonment is always stated in terms of a specific maximum such as “punishable with rigorous imprisonment not exce ling five years." By the same token, simple imprisonment is for some crimes extended beyond three years by specific provisions or limited to a maximum, for example, six months, which falls within the simple imprisonment range of ten days to three years.
An interesting feature of the Ethiopian Penal Code is that the court may place the offender on probation without a conviction being entered on the police record. If he does not break the conditions of his probation, the conviction is never entered (Article 195). However, the court may elect to enter a conviction and pass sentence before ordering the sentence suspended and the offender placed on probation (Article 196). Where probation has been undergone and secondary penalties or measures which had been pronounced without suspension have been carried out, the court must order the deletion of the police record entry. Secondary punishments include flogging, caution, reprimand, admonishment and apology, and deprivation of rights (Articles 120-122).
There is also provision for a "conditional release" upon recommendation of the management of the correctional institution (Article 207). The court must then fix a period of probation which must be between two and five years.
Probationers are placed under the supervision of a charitable organization. These organizations, which may be public or private, receive the assistance and are under the control of the State. There is also provision for appointment of a probation officer (Article 215).
In Ethiopia. the judge is given a wide range of sentencing powers in an effort to individualize the sentence. Article 86, entitled "Calculation of Sen. tence," (see above) sets out the criteria to be applied by the court in its assessment of the sentence.
Once the sentence is passed and the offender imprisoned, the possibility of parole is based upon the system of "conditional release" previously mentioned. Conditional release is the suspension of a penalty of incarceration for good conduct there there are possibilities of rehabilitation. This concept presupposes that part of the sentence has been served in accordance with the seriousness of the offense. The court, upon recommendation of the director of the correctional institution, may grant the prisoner his freedom under the condition that he will not abuse it and that he will use it for purposes of