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according to whether or not she gave her consent (Article 530). If the woman's consent was not voluntary, the penalty is increased.

The advertising for contraceptives or abortive means is punishable under the code of petty offenses (Articles 528 (2) and 802). An attempt to procure an abortion on a woman wrongly supposed to be pregnant is an offense, but the court may, without restriction, reduce the punishment (Articles 532 and 529). Where the abortion has been performed as the result of “an exceptionally grave state of physical or mental distress, especially following rape or incest, or because of extreme poverty," the court may mitigate the punishment without restriction (Article 533).

In addition, there is provision for the termination of pregnancy on medical grounds (Article 534). Two physicians must concur, in writing, of the necessity "to save the pregnant woman from grave and permanent danger to life or health which it is impossible to avert in any other way.” The second doctor must be qualified as a specialist in the alleged defect of health from which the pregnant woman is suffering. In addition, the woman's consent, or, where she is incapacitated, her legal representative's consent must be obtained and “duly substantiated" (Article 534). The confirming physician is obligated to report his findings to health authorities within a time provided by law and the terminating physician must report the abortion “forthwith.” Penalties, inc a temporary suspension of the right to practice medicine, are provided for failure to comply with the reporting requirements (Article 535). Special provisions cover emergency situations (Article 535).

QUESTION 17-C. PROSTITUTION

Prostitution is not a crime in Ethiopia. However, there are provisions against the exploitation of prostitution by another. Article 604. Habitual Exploitation for Pecuniary Gain

Whosoever, for gain, makes a profession of or lives by procuring or on the prostitution or immorality of another, or maintains, as a landlord or keeper, a disorderly house is punishable with simple imprisonment and fine.

There are also provisions against trafficking in women, infants and young persons (Article 605), and organization of traffic in persons (Article 607). The former includes keeping a disorderly house and the latter includes the making of “arrangements or provisions of any kind” for such traffic.

QUESTION 17-D. OBSCENITY With respect to obscenity, there are several detailed provisions in the Ethiopian Penal Code in a section entitled “Offences Tending to Corrupt Morals." The deliberate performance in a public place or within sight of the public of "the sexual act or any other obscene act or gesture grossly offensive to decency or morals" is prohibited (Article 608). Trafficking or trading in obscene or indecent publications is also forbidden (Article 609).

QUESTIONS 17-E. HOMOSEXUALITY

Section II of Title IV, Book V, of the Sepcial Part of the Ethiopian Penal Code is entitled "Sexual Deviations.” Homosexual activity between consenting adults is criminal conduct. Article 600. Unnatural Carnal Offences

(1) Whosoever performs with another person of the same sex an act corresponding to the sexual act, or any other indecent act, is punishable with simple imprisonment.

(2) The provisions of Art. 597 are applicable where an infant or young person is involved.

There are provisions for aggravation of the offense (coercion, use of violence, etc.) and prohibition of other unnatural acts. This section of the Code concludes with the following article: Article 603. Demonstrable Pathological Deviations Reserved

Nothing in this section shall prevent the application of curative or protective measures (Art. 134 and 135) in pathological cases where, according to expert opinion, the offender is partially irresponsible.

57-868—72-pt. 3-6-30

QUESTION 18

The Ethiopian Penal Code has one article which prohibits unauthorized gun traffic and one provision which prohibits criminal use of explosives and incendiary or poisonous substances. They are drafted in a broad fashion. The arms trafficking article is drafted to be used in conjunction with a regulatory scheme of gun control. Gun traffic is prohibited "without special authorization or contrary to law." Article 475. Prohibited Traffic in Arms

(1) Whosoever:

(a) apart from offences against the security of the State (Art. 254), makes, imports, exports or transports, acquires, receives, stores or hides, offers for sale, puts into circulation or distributes, without special authorisation or contrary to law, weapons or munitions of any kind ; or

(b) without indulging in trafficking, knowingly sells, delivers or hands over arms to suspect or dangerous persons, is punishable with simple imprisonment, without prejudice to the imposition of a fine, where he has acted for gain or has made a profession of such activities, and to confiscation of material seized.

(2) Occasional violations of police regulations, and the carrying or use of prohibited weapons, are subject to the penalties for petty offences (Art. 763 and 764). Article 494. Illicit Making, Acquisition, Concealment or Transport

(1) Whosoever makes explosives, incendiary or poisonous substances, knowing that they are intended for unlawful use, is punishable, according to the circumstances, with rigorous imprisonment not exceeding ten years, or with simple imprisonment for not less than six months.

(2) Whosoever, knowing that another wishes to make unlawful use of such substances, furnishes him with means or instructions for making them, is punishable with rigorous imprisonment not exceeding five years, or with simple imprisonment for not less than three months.

(3) Whosoever, knowing that they are intended for unlawful use, imports, acquires or procures explosive, incendiary or poisonous substances or the materials used in their manufacture, hands them over to or receives them from another, or stores, conceals or transports them, whether for consideration or free of charge, is punishable with rigorous imprisonment not exceeding five years, or with simple imprisonment for not less than three months.

QUESTION 19 Ethiopia employs the death penalty extensively in matters of state, including attempts against the emperor's life or against the imperial dynasty, war crimes, espionage, treason, and so forth. Usually the death penalty is an alter. native to a prison sentence and is to be applied only "in cases of exceptional gravity.” These offenses are found in Book III of the Code, “Offences Against the State or Against National or International Interests."

The death penalty may be imposed for aggravated homicide (homicide in the first degree) (Article 522). The death sentence is compulsory "where the offender has committed murder in the first degree while serving a sentence of rigorous imprisonment for life" (Article 522 (2)].

The aggravated robbery article also contains captial punishment for gangsters, as follows: Article 637. Aggravated Robbery

(2) The court may order rigorous imprisonment for life, or in the most serious cases, the death penalty, where the offender has acted together with a gang, used dangerous weapons, means imperilling collective security or means of particular cruelty, or where the acts of violence committed have resulted in permanent disability or death.

Armed robbery committed habitually by a gang is punishable with death.

There is no special provision for sentencing in capital cases. In all cases where the accused is found guilty, the court must ask the prosecutor whether he has anything to say as regards sentence by way of aggravation or mitigation (Article 149, Criminal Procedure Code). The prosecutor may call witnesses as to the character of the accused. Where the prosecutor has made submissions on

sentence, the accused is entitled to reply and may call witnesses as to his character. It is provided that “where the accused does not admit any fact regarding his antecedents, the prosecutor shall be required to prove the same." In addition, the court itself may at any time before giving judgment call any witness whose testimony it thinks is necessary in the interests of justice (Article 143, Criminal Procedure Code).

The sentencing provisions of the Ethiopian Penal Code contain alternative or flexible penalties for almost every crime. Article 86 of that Code provides that "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 offense and the circumstances of its commission." The absence of a jury system does not make separate sentencing hearings superfluous. The sentencing process assumes that guilt has been established. At that time the court may hear testimony from all sources in order to properly exercise its duty under Article 86.

QUESTION 20 The Ethiopian Penal Code takes an approach similar to that taken by $703 to the problem of prosecution for multiple related offenses in that it limits the sentences which can be imposed under such circumstances. Article 192. Simultaneous Breach of Several Provisions

Where by one and the same act the offender committed a breach of several criminal provisions (notional concurrence Art. 82(a)), the Court may aggravate the penalty according to the provisions of Art. 189 where the offender's deliberate and calculated disregard for the law justifies aggravation; it shall be bound to do so in cases of aggravation expressly provided by law (Art. 63(2)).

In other cases, the Court may only impose the maximum penalty prescribed by the most severe of the relevant provisions. Article 189. Circumstantiated Aggravation in Case of Concurrent Offences

(1) In case of material concurrence of offences (Art. 82 (a)) the court shall determine the penalty on the basis of the general rules set out hereafter, taking into account, for the assessment of the sentence, the degree of guilt of the offender:

(a) where capital punishment is provided for one of the concurrent offences this penalty shall override any other penalties entailing loss of liberty;

(b) in case of several penalties entailing loss of liberty being concurrently applicable the court shall pass an aggregate sentence as follows: It shall impose the penalty deserved for the most serious offence and shall increase its length taking into account the provisions of the law or the concurrent offences; it may, if it thinks fit, impose a penalty exceeding by half the basic penalty without, however, being able to go beyond the general maximum fixed by law for the kind of penalty applied ;

(c) in case of concurrence between a penalty entailing loss of liberty and a fine the court may impose both penalties taking into account the various provisions applicable or the concurrent offences; it may not exceed the general maximum prescribed by law for each kind of penalty ;

(d) in cases where several fines have to be applied the Court shall impose a single fine the amount of which shall not exceed the aggregate amount of the separate fines, nor the general maximum amount provided by law, save in cases where the offender acted for gain (Art. 90).

(e) Where the court orders the forfeiture of the property owned by the offender it may not, in case of concurrence, impose a fine either as principal or as secondary penalty.

(2) Any secondary penalty or preventive, corrective or safety measure may be applied even though its application is justified under only one of the relevant provisions or in respect of only one of the concurrent offences.

The effect of Article 189 is to mitigate the penalty for concurrent offenses. These provisions focus, in the disposition stage of the proceedings. upon the problem of the defendant's criminality and the need for rehabilitation rather than upon piling up the maximum punishment possible.

The problem of double jeopardy and the related doctrines of res judicata and collateral estoppel are partially provided for by Article 2(3) of the Ethiopi

Penal Code, which simply states that "nobody shall be punished twice for the same act."

Article 60 affords a measure of protection from double jeopardy in that it “merges” certain acts into a single offense so that multiple crimes do not result where, in many instances, several offenses could be charged under American practice. Conviction of "lesser included offenses” is allowed if proof of the most serious offense fails (Article 113(2), Criminal Procedure Code). Article 60. Unity of Guilt and Penalty

(1) The same criminal act or a combination of criminal acts against the same protected right flowing from a single criminal intention or act of negligence, cannot be charged under two or more concurrent provisions of the same nature.

(2) Successive or repeated acts against the same protected right flowing from the same initial criminal intention or act of negligence and aiming at achieving the same purpose constitute one offence; the offender shall be charged with the said offence and not with each of the successive acts which constitute it.

(3) In cases of offences resulting from injury to property, the putting into circulation of counterfeit coins, or the use of forged documents, the subsequent acts performed by the offender himself after the commission of the main offence for the purpose of carrying out his initial cri al scheme shall not constitute a fresh offence liable to punishment and are merged by the unity of intention and purpose.

Once it is decided that multiple offenses have been committed, because those offenses are not “merged" into a single liability under Article 60, then we speak of the offenses as being "concurrent." There are two types of concurrence defined in Article 82, previously discussed in the answer to Question #9. “Concurrence" should be thought of as the relationship between offenses committed by an offender if they are not merged under Article 60.

In Ethiopia the English doctrine of “autrefois acquit" has been adopted and is analogous to our "double jeopardy." Acquittal of any concurrent offense will not be the basis of autrefois acquit. Likewise, conviction of any “offenses" is not implied, and autrefois quit does not apply, in the case of concurrence.

The problems resolved by $706 and $709 of the Proposed Federal Code do not exist in Ethiopia because there is a unitary legal system. Military offenses are also included in the Ethiopian Penal Code.

Ethiopia does not recognize a conviction or acquittal in a foreign country as a bar to a fresh prosecution in Ethiopia for cases in which Ethiopia considers itself to have “principal jurisdiction.” Principal jurisdiction includes those crimes committed within Ethiopian territory (Article 10), and certain crimes over which extraterritorial jurisdiction is specifically recognized (see answer to Question #12). Article 16. Effect of Foreign Sentences

(1) In all cases where an offender who is subject to Ethiopia's principal jurisdiction, (Art. 11, 13, 14 para (1) and 15 para (2)) has been sentenced in a foreign country, he may be tried and sentenced again on the same charge in Ethiopia, if he is found in Ethiopia or was extradited to her.

(2) His discharge or acquittal in a foreign country shall be no bar to a fresh sentence being passed in Ethiopia in accordance with the Ethiopian Code.

(3) Where by reason of the offence committed, the offender has already been convicted in a foreign country and has undergone the whole or part of the punishment, the court shall deduct the punishment already undergone from the new sentence to be passed.

In cases where Ethiopian courts have a “subsidiary jurisdiction" only, the offender cannot be tried and sentenced in Ethiopia if he was "regularly discharged or acquitted for the same act in a foreign country" (Article 20). "Subsidiary jurisdiction" exists:

1. Where a member of the Ethiopian Armed Forces in such capacity commits an offense against the ordinary law in a foreign country, excepting offenses against international law and specifically military offenses contained in the Ethiopian Penal Code (Article 15);

2. Over offenses against international law or treaty and offenses against public health or morals as contained in the Ethiopian Penal Code (Article 17); and

3. Over other offenses committed in a foreign country as specified in Article 18. Article 18. Other Offences Committed in a Foreign Country

(1) This Code shall also apply to any person who has committed an offense in a foreign country against an Ethiopian national or to any Ethiopian national who has committed in a foreign country an offence of another kind than those specified in the foregoing Articles, if the offender was not tried in the foreign country for the offence, provided that:

(a) the act to be tried is prohibited by the law of the State where it was committed and by Ethiopian law; and

(b) it is of sufficient gravity under the latter law to justify extradition.

(2) In the case of all other offences committed in a foreign country by a foreign national, the offender shall, save as otherwise expressly provided, failing extradition, be prosecuted and tried only if the offence is punishable under Ethiopian law with death or with rigorous imprisonment for not less than ten years.

If the offender was tried and sentenced in a foreign country but did not undergo his punishment, or served only part of it in the foreign country, the punishment, or the remaining part of it, may be enforced in Ethiopia if it is not barred by limitation [Article 20(2)). Should the punishments differ as to their nature or form, such punishment as is the closest to that imposed in the foreign country is enforced in Ethiopia [Article 12(3)). When extraterritorial jurisdiction is involved, the punishment to be imposed cannot be more severe than the heaviest penalty prescribed by the law of the country of commission, where such country is recognized by Ethiopia [Article 19 (3)).

Ethiopia does not require provisions similar to those of 8709 because, at least in cases involving its "principal jurisdiction," it does not recognize the former prosecution as a bar. It will only deduct punishment already served in the case of a prior foreign conviction (Article 16). In addition, as previously stated, there is currently no federal system in Ethiopia.

FRANCE

QUESTION 1

The French Penal Code of 1810 does not enjoy the same fame as the Napoleonic Civil Code of 1804. It consists of short preliminary provisions (Arts. 1-5) and four books.

Punishable offenses are divided into three groups according to penalties: major crimes (crimes), minor crimes (délits), and contraventions (Art. 1). Articles 2 and 3 deal with attempts. Article 4 reaffirms the principle of nulla poenae sine lege penale, and Article 5 is devoted to the computation of penalties for several major and minor crimes and to certain aspects of clemency.

Book I covers punishments in general for major and minor crimes and their effects; Book II, persons criminally responsible, excusable for major and minor crimes; Book III, major and minor crimes and their punishments; and Book IV, contraventions and their punishments.

The Penal Code was greatly modified by several ordinances of December 19:58 (Vos. 58–1296 to 58–1300) and by the Ordinance of June 4, 1960. These amendments deal with the range of penalties, major and minor crimes against the State, and riots.

Since 1810 considerable additions have been made so that today the Penal (ode actually consists of three parts: the first part is legislative (including Books I-IV mentioned above) the second, regulatory (public administration regulations and decrees issued by the Council of State, as instituted by Decree No. 58–1303 of December 23, 1958), and the third part, covering decrees, instituted by Decree No. 60–896 of August 24, 1960.

The second part consists of 43 articles preceded by the letter R. Articles R1 to R23 deal with penalties pertaining to sojourn, Article R24. with members of the European Community and the security of the allies in France, Articles R24-1 to R24-13 concern the measures directed against violators of morality. Articles R24–14 to R24-31 regulate scientific research on live animals, and Articles R25 to R41 determine certain contraventions and penalties applicable to them.

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