Federal Attorney General Vs Aster Adush Debele (2014 E.C)

Case Name: Federal Attorney General Vs Aster Adush Debele, Federal Supreme Court Cassation Bench, file No 211518, Volume 26, July 2016 E.C, Page 414-417.

Court: Federal Supreme Court of Ethiopia

Bench: Cassation Bench (Etmet Asefa, Tsehay Menkr, Nuredin Kedir, Melaku Kassaye, Estibel Andualem).

Date of Judgment: January 30, 2014 E.C.

Parties Involved: Federal Attorney General Vs Aster Adush Debele

Relevant Provisions/ Statutes: Articles 19, 20, & 37 of the FDRE Constitution, article 447/1 of the Ethiopian criminal code, and Articles 160 and 161 of the Criminal Procedure Code of Ethiopia.

Facts of the case: The respondent, Aster Adush Debele falsely accused a man she knew to be innocent of raping her. Aster’s case was brought to the attention of the federal first instance court for crime of false accusation contrary to Article 447/A of the criminal code.[1] The federal first instance court summoned the respondent, and in effect, appeared before it. During that time, the details of the charge were communicated to the respondent, the prosecution’s evidence heard immediately, and the case was adjourned for a decision on whether the applicant would defend herself or not in accordance with the law. However, the accused failed to appear on the day adjourned for the order, the prosecution, the applicant, urged the court to pass the order thought to be held on that day in the absence of the accused, now respondent. But, the Federal First Instance Court declined the prosecution’s request and ordered stay of the proceeding while guaranteeing proceeding with the case in the accused’s presence. Objecting this order, the applicant applied an appeal to the federal high court, but the court upheld the decision of the lower court. Dissatisfied again, the applicant lodged an application to the federal Supreme Court’s cassation bench, arguing that the lower courts had made a basic error of law by not allowing trial in absentia, even though the law permits it.

Issues Raised

• Does the order passed by the lower courts to stay the proceeding by guaranteeing continuance with the case in the accused’s presence, appropriate in accordance with the criminal procedure code?
• Does this case fall under Article 161 of the Criminal Procedure Code?

Arguments of the Parties

The applicant argued that the decision made by the lower courts constitutes a basic error of law in which it impliedly encourages impunity. That is, if an accused is allowed to go free on the mere fact that he is absent in the trial while he had summoned and appeared in the first hearing, it will be a suitable environment for Prospective criminals as it can make them rely on this unjust practice. Moreover, the applicant argued that the decision denies the right of access to justice guaranteed for everyone under article 37 of the FDRE Constitution.[2] There was no argument on the part of the respondent since she did not appear as summoned on the hearing day, as she did in the Federal First Instance Court, which resulted in forfeiture of her right to present written argument in her favor.

Judgment/ Final Decision

1. The court held that the decision of the federal first instance court and the decision of the federal high court that confirmed the federal first instance court’s decision on this case are hereby reversed.
2. The court decided that the case will be remanded to the federal first instance court to pass an order that it thinks fit by starting the stayed file and examining the evidence presented by the prosecution.

Legal Reasoning

The court considered whether this decision violates the procedural rights of the respondent under articles 19 and 20 of the FDRE Constitution.[3] However, it was found appropriate since the accused was proceeding with her case on bail and failed to appear after the Prosecution’s evidence was presented. Records reveal that the accused, now respondent, was present while the prosecution’s evidence was being heard. This shows that the accused was able to exercise her procedural and substantive rights. And also it shows that she was informed promptly about the charge against her and got the opportunity to present during the examination of the prosecution’s evidences. The criminal procedure code of Ethiopia provides that trial in absentia is allowed only if the accused has failed to appear without sufficient reason. In the case at hand, it is established that the accused failed to appear without sufficient and fairly convincing reason. The court is also required to determine if the requirements for trial in absentia provided under Article 161 are fulfilled.[4] The first condition is that the quantum of punishment provided for the crime under the criminal code must exceed 15 years of rigorous imprisonment. The second alternative condition is the crime must fall under articles 354-366, which relate to money counterfeiting, falsifications of stamps and documents, and that crime must be punishable by rigorous imprisonment or fine exceeding 5000 Ethiopian birr.[5] The court has considered all these conditions and, in its opinion, found it proper to reverse the lower courts’ decision and order the federal first instance court to retry the case and then decide as it thinks fit. Thus, the court held that it is unlawful and unjust to close or stay a file under the guise of the accused’s absence, as she was allowed to enjoy almost all the rights enshrined under the mentioned provisions of the Constitution. On the other hand, the court ruled that the lower court’s decision consists of basic error of law because it violates the right of victims to have access to justice, as the decision encourages impunity of offenders and there by denies access to justice and effective remedies for crime victims.

Conclusion

The case between the Federal Attorney General and Aster Adush Debele was brought before the Federal Supreme Court’s Cassation Bench on appeal on the ground that the lower courts’ made a basic error of law by not allowing trial in absentia. In Ethiopia, interpretative decisions rendered by the Federal Supreme Court’s Cassation Bench serve as binding precedents and are binding rules for similar prospective cases, provided that the decision is not repealed by another decision of the same court’s bench.[6] In the case at hand, the decision of the lower courts that closed the file or charge until the accused’s appearance was reversed by the decision of the Cassation Bench, arguing that they made a fundamental error of law. From the time this decision was rendered, all Ethiopian courts are required to apply this binding interpretation in their task of adjudicating similar cases. The Cassation Bench’s main reasoning for this decision was avoiding impunity and protecting the right of victims to access to justice and effective remedies. So, the interpretation given in this case will have paramount importance in deciding similar prospective cases.

My Reflection

I have thoroughly read and understood the case in relation to the relevant legal provisions applicable to it. As I mentioned above in the legal reasoning section, there are two alternative conditions in which the court can try an accused in his absence.[7] According to the criminal code, the statutory punishment provided for false accusation is at most five years of rigorous imprisonment.[8] The case at hand does not fulfill the first condition, as the minimum punishment required in that condition is fifteen years. The case also does not fall under money counterfeiting and falsification of documents or stamps, as false accusation has nothing to do with these crimes. If one of these conditions is fulfilled, the court is authorized by the law to order a trial in absentia. But in this case, none of them are fulfilled. I believe also that legal provisions should not be subject to interpretation if they are plain, clear, and undisputable. Courts should only interpret vague or confusing provisions.[9] Therefore, while I respect the court’s reasoning combating impunity and guaranteeing access to justice and effective remedies for crime victims, I respectfully object to the ruling of the Federal Supreme Court’s Cassation Bench, as it did not carefully consider the cases in which a court can try an accused in his absence as required by the criminal procedure code. My perspective is not just from the strict application of the criminal Code or criminal procedure code; But also from human rights protection. This means trial in absentia is an exceptional case which has to be interpreted narrowly and applied in limited circumstances since it might potentially undermine the right of accused persons to fair procedures and due process of law if not properly handled, enshrined under the international human rights law standards and the FDRE constitution.[10]

Reference(S):

[1] Criminal Code of the Federal Democratic Republic of Ethiopia Proclamation No 414/ 2004, article 447/ a.

[2] The Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No.1/1995, Federal Negarit Gazeta, No 1, Addis Ababa 21, 1995, article 37.

[3] The Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No.1/1995, Federal Negarit Gazeta, No 1, Addis Ababa  21, 1995, articles 19 and 20.

[4] Ethiopian Criminal Procedure Code Proc. No.185/1961, article 161.

[5] Ethiopian Criminal Procedure Code Proc. No.185/1961, article 161; Criminal Code of the Federal Democratic Republic of Ethiopia Proclamation No 414/ 2004, articles 354-366.

[6] Federal Courts Proclamation No.1234/2021, article 26/ 3.

[7] Ethiopian Criminal Procedure Code Proc. No.185/1961, article 161.

[8] Criminal Code of the Federal Democratic Republic of Ethiopia Proclamation No 414/ 2004, article 447/ a.

[9] Criminal Code of the Federal Democratic Republic of Ethiopia Proclamation No 414/ 2004, article 2/ 4.

[10] International  Covenant on Civil and Political Rights, adopted 16 December 1966, entered in to force 23 March 1976, 999 UNTS 171, arts 2, 14, and 26; UN General Assembly, ‘Universal Declaration of Human Rights’ UN DOC A/RES/3/217A,10  December 1948, UDHR articles 7, 8 and 10.