Criminal Law

ፎረንሲክ ፖቶሎጂ ወይም የአስክሬን ምርመራ የአንድን ሰው አሟሟት በአጋጣሚ፣ ራስን ማጥፋት፣ በተፈጥሮ ወይም በሰው እጅ የሞተ መሆኑን የሚገልጽ የፎረንሲክ ሳይንስ ጥበብ ነው፡፡ ፎረንሲክ ሳይንስ የተጀመረው ከክርስቶስ ልደት በፊት 44 ዓመት ዓለም ነበር፡፡ በወቅቱም ትልቅ ስምና ዝና የነበራቸውን የንጉሳውያን ቤተሰቦች አሟሟት ለማጣራት ነበር የተጀመረው፡፡ የፎረንሲክ ፓቶሎጂ መጀመርና በብዙ ሰዎች መለመድ በመቻሉ ለጂዲ ኤን. እውቅናና አሁን ለደረሰበት ደረጃ ከፍተኛ አስተዋጽኦ እንዳለው የዘርፉ ባለሞያዎች እየገለፁ ይገኛሉ፡፡

የመጀመሪያው የአስክሬን ምርመራን የሚያትት መጽሀፍ 1247 ሶንግቺ በተባለ ፀሀፊ ተጽፏል፡፡ በዚህም የፎረንሲክ ህክምና ሳይንስ አባት ለመባል በቅቷል አምስት ህትመቶቹን (በዚያንጅሉ) xiyanjilu, ርዕሶች ለንባብ አብቅቷቸዋል፡፡

 

በአውሮፓ የመጀመሪያው የአስክሬን ምርመራን የሚያትት መጽሀፍ ለንባብ የበቃው 1507 ባምበርድ ኮድ አፓርድ በሚል ርዕስ የወጣው ነበር፡፡ በዚህም የሞት መንስኤ፣ የግድያ ወንጀሎችና በመርዝ የሚሞቱ ሰዎችን መለየት የተጀመረበት ወቅት ነበር፡፡

 

የአስክሬን ምርመራ ሳይንስ የህክምና ሳይንስ ዘርፍ ሲሆን 19ኛው መቶ ክፍለ ዘመን የሞት መንስኤዎችን የሚያረጋግጥ መሳሪያ ለመሆን በቅቶ ነበር፡፡ ይህ የምርመራ ሳይንስ ለመጀመሪያ ጊዜ እውቅና ተሰጥቶት አገልግሎት ላይ የዋለው .. 1959 በአሜሪካን ሀገር ነበር፡፡ ከዚህ ዓመት በኋላ በዚሁ ሀገር የሞት መንስኤን ለማጣራት እየተጠቀሙበት ይገኛሉ፡፡ በርካታ የአሟሟት መንስኤዎችም ታውቀው ለህግ የተላኩ ሲሆን በፍርድ ቤቶችም ተቀባይነት በማግኘት የሟቾችን የአሟሟት መንስኤ በማረጋገጥና አጥፊዎች እንዲቀጡ ተደርጓል፡፡

አሁን አሁን በአሜሪካን ሀገር ድንገተኛ ሞትን፣ የተፈጥሮ፣ ያልተጠበቁ እንዲሁም በመርዝ የሚሞቱ ሰዎችን የሚያጠና የህክም ዘርፍ ሲሆን ፅናትን ቆራጥነትንና ፍጹም የሰው ልጆችን የሞት መንስኤዎችን ለማጥናት ፍላጎት ያላቸው ሰዎች ብቻ ሊገቡበት የሚገባ የህክምና ዘዴ መሆኑን ባለሙያዎች ይመክራሉ፡፡

ከቅርብ ጊዜያት በኋላ በአሜሪካን ሀገር የአስክሬን መርማሪዎች ቁጥር ከጊዜ ወደጊዜ በእጅጉ እየቀነሰ የመጣበት ሁኔታ መኖሩን በዚሁ ሀገር የሚገኘው ‘’National Acadamy of science’’ የተባለው ተቋም እየገለፀ ይገኛል፡፡ ይህ ተቋም 2009 ባወጣው ሪፖርት መሠረት በአሜሪካን ሀገር በሁሉም ግዛቶች 500 ያልበለጡ ሙያተኞች ብቻ ይገኛሉ፡፡ ነገር ግን በዓመት 500 ሺህ በላይ የሞት መንስኤን እንዲመረምሩ በመደረጉ ከፍተኛ ችግር ውስጥ መግባታቸውን እየተናገሩ ይገኛሉ፡፡ እንደ ብዙ የባለሙያዎች አስተያየት የአስክሬን ምርመራ ባለሙያ እጅግ ሊያንስ የቻለው ከአራት ዓመታት የህክምና ትምህርት በኋላ ለሶስት ዓመት የአጠቃላይ የሰውነት አካል ትምህርት ስለሚሰጥና የሙያ ሰርተፍኬት ለማግኘት የፅሁፍና የተግባር ፈተና መስጠታቸው እንዲሁም በየ10 ዓመት ፍቃዳቸው እንዲታደስ በመደረጉ ሰልጣኞች ወደዚህ ሙያ ሊመጡ እንዳላስቻላቸው ይነገራል፡፡ በተጨማሪም በስልጠና ተቋም የሚገኙ መሳሪያዎች ተመጣጣኝ አለመሆናቸው፣ ወደዚህ ሙያ እንዲገቡ የሚያማልሉ ነገሮች አለመኖራቸውና የክፍያ ማነስ ባጠቃለይ ለአስክሬን ምርመራ ሙያ አዳጋች ሁኔታን መፍጠሩን በሙያው 40 ዓመታት ያገለገሉት / ቪሴን ዲማሪዬና ሳን አንቶኒዮ ይናገራሉ፡፡

በተፈጥሮ የአስክሬን ምርመራ ባለሙያ በማህበረሰቡ የሚገለል፣ በቤተሰቡ ላይ ሀዘን የሚፈጥርና ሁልጊዜ ከሞቱ ሰዎች ጋር የሚያገናኝ ሙያ በመሆኑ የራሱ የሆነ ተጽእኖ በባለሙያው ላይ መፍጠሩ አይቀርም ነገር ግን ክቡር የሆነውን የሰው አካል በምን ምክንያት እንደሞተና ለፍትህ አካል የሚያቀርብ በመሆኑና አጥፊዎችን የሚያስቀጣ በመሆኑ ሊወደድና ከፍተኛ ክብር ሊሰጠው የሚገባ ሙያ ሊሆን ይገባዋል፡፡

በአገራችን የአስክሬን ምርመራ ከተጀመረ ጥቂት ዓስርት ዓመታትን ብቻ አሳልፏል፡፡ እስከ ቅርብ ዓመት ድረስ ይህ አገልግሎት የሚሰጠው በዳግማዊ ምኒሊክ ሆስፒታል ብቻ ነበር፡፡ ያውም በሁለት የአስክሬን ምርመራ ባለሙያዎችና በአንዲት ኩባዊት ባለሙያ ከየሀገሪቱ ክልል መንገድ ላይ የሞቱ፣ በአደጋ፣ በሰው እጅ የተገደሉ ሰዎች ወደዚሁ ሆስፒታል ለምርመራ ይላካሉ፡፡ በዚህም በከፍተኛ ጫና ውስጥ እየሰሩ እንዳሉ መገንዘብ አያዳግትም፡፡

የአስክሬን ምርመራ ውጤት ለፍርድ ሂደት እጅግ ከፍተኛ ድጋፍ እንደሚሰጥ አያጠያይቅም በአንፃሩ ደግሞ የተዛባ ውጤት በፍርድ ሂደቱ ላይ ጫና እንደሚያሳድር ይታወቃል ስለዚህ በአገራችን በርካታ ባለሙያዎችን በበቂ ሁኔታ ማሰልጠን እንዲሁም የአስክሬን ምርመራ ሆስፒታሎችን ቁጥር በከፍተኛ ሁኔታ መጨመር ያስፈልጋል፡፡ በቅርቡ የመቀሌ ዩኒቨርስቲ ከመቀሌ ሆስፒታል ጋር በመተባበር የአስክሬን ምርመራ እንደጀመሩ ይታወቃል፤ ሌሎች ክልሎችም በአካባቢያቸው ካሉ የኒቨርስቲዎች ጋር በመተባበር ሙያተኞችን በማሰልጠን አገልግሎቱን መጀመር ይገባቸዋል፡፡ የፌደራል ፖሊስ ሪፈራል ሆስፒታልም ይህን አገልግሎት ለመጀመር እቅድ እንዳለው የተገለፀ ሲሆን አገልግሎቱን ሲጀምር በዳግማዊ ምኒሊክ ሆስፒታል ላይ ያለውን ጫና ይቀንሳል ተብሎ ይጠበቃል፡፡

 

የአስክሬን ምርመራ ውጤት ለህግ አካላት የሟቹን የሞት መንስኤ በአደጋ፣ በሰው እጅ፣ በተፈጥሮ በመርዝ መሆኑን የሚገልጽ የህክምና ዘዴ በመሆኑ በእጅጉ ይጠቅማቸዋል፡፡ ስለዚህ የሚመለከተው አካል በመላ-ሀገሪቱ አንድ የምርመራ ጣቢያ በመክፈትና ባለሙያዎችን በማሰልጠን የፍርድ ስርዓቱን ውጤታማ እንዲሆን ማስቻል ይጠበቅባቸዋል፡፡ (ይህ ጽሑፍ በፖሊስና ርምጃው መጽሔት ለመጀመሪያ ጊዜ መጋቢት 2 ቀን 2006 . ተጽፏል)

 

 

According to Art.52 of the Ethiopian Criminal Code, infants are completely exonerated from criminal provisions. The lower limit of penal majority is made nine years under this article. Therefore, the Ethiopian criminal code never applies to children who commit an offence before having completed their ninth year. Whatever offence may be committed by a child who is not yet in his tenth year, he is not criminally liable and may not be subjected to a penalty under the law. He is presumed by law to be doli incapax, and showing that he understands what he is doing and that he would also understand the purposes of penalty cannot rebut the presumption. Furthermore, punishment, which in any event might do more harms than good owing to its psychological consequences, is not a proper objective for one who deals with infants.

The main task is to investigate why the infants do wrong and to bring about a change in the circumstances, which lead him to commit the offence. This is not to say, however, that children may do as they please, but merely that they are not the concern of the criminal law. Instead, they are under the exclusive jurisdiction of their parents or persons exercising parental authorities. If they do wrong, corrective steps may be ordered at home or at school, but not in court. And yet, provisions  of  the Revised Family Code and Arts.576, 659 are designed to ensure that infants do not become delinquents in consequences of their parents failing in their duties.

 

Classification of Young offenders under the Code:

 

Immaturity refers to inability to appreciate the nature and consequences of an act due to early age. It includes infancy, young criminal and persons in the transitory age.

 

Infancy:

 

Infancy is the period extending from birth to what might be called criminal majority. The age limit that marks the end of infancy varies from one country to another. In our country, infancy ends at the attainment of ninth year (article 52). The infants who have not attained the age of nine years are exonerated from criminal liability.

 

For example, Hamdi is eight years old. He set fire to a hut in which three persons were asleep. Two persons seriously injured in the fire. The third person died in the fire. Hamdi will not be liable for causing negligent homicide contrary to article 543 of the Criminal Code, nor will he be liable for injuries caused by negligence contrary to article 559 of the Criminal Code.

 

Young Persons:

 

 

Young persons are persons whose age is between nine and fifteen (article 53(1)). Young persons don not enjoy complete immunity from criminal liability. They are considered responsible for their acts.  However, the court may not treat young persons in the same manner as it does adults. The court orders the penalties and measures provided under article 157-168 rather than the punishments provided under the special part of the Criminal Code.

 

Young persons are criminally liable for two reasons. First, persons begin to understand the nature of their acts, to be able to form a decision and to keep to it between the age of nine and fifteen. During this period, their intelligence and volition develop and become gradually closer to those of adults. Secondly, the commission of a crime shows that the time has come to take action because no action has been taken at home or school or it has failed. Further, it is easy to correct young persons in early age and their separation from their family does not affect them.

 

The objective of subjecting young persons to any action is to turn juveniles into useful citizens. Therefore, the primary aims of any action taken with respect to young persons are and must be education and correction. The commission of a crime by the young persons implies that there are problems in bringing them up. These problems may arise from different causes that include the parents’ failure to perform their legal duty to bring up their child properly, disunited family, poverty, migration and association of young persons with criminals. Since the causes for criminal behavior of young persons are different, the court should apply different penalties and measures that can correct and educate them.

The court, according to article 54 of the Criminal Code, should require information about the conduct, position and circumstances of the young criminal. The court may obtain this information from persons having close relationship with the young criminal such as parents, representatives of the school, guardianship authorities and institutions. Besides, the court before passing measures or penalties may order the young criminal to be kept under observation in medical or educational center, a home or any other suitable institution.

The court after it has obtained necessary information assesses the penalties and measures by taking into account the age, character degree of mental and moral development of the young criminal, as will as the educational value of the penalties and measures to be applied.  Accordingly, when an adult commits a crime, he/she is liable to the penalties prescribed by law with the respect to this crime. Every crime carries with it a certain punishment the kind and extent of which vary depending on the kind and seriousness of the crime. However, young criminals are liable to only penalties and measures provided for them. Therefore, the court may order appropriate measure against young criminals irrespective of the kind and seriousness of the crime they committed.  In ordering the measure, the court should ascertain that the measure ordered could eliminate the problems of young criminals. In this regard, the work of judges of juvenile criminal is similar to that of the medical doctors.

 

The court is not bound by its orders and may at any time vary them if this is required in the interest of the young person. This is another point that distinguishes the penalties and measures ordered against young persons from that of the adults. In cases of adult, it is a generally admitted procedural principle that a final judgment may not be revised in the course of its enforcement. This difference is justified, as there is certain amount of experimentation involved in the dealing with young persons. It is unpredictable whether the measure ordered succeeds in reforming the young criminals. Thus, the court’s duties do not end after it has begun judgment. It may order a new measure if it appears that the one that is being enforced does not serve the purpose for which it is ordered.

The measures provided for young criminals under article 158-162 of the Criminal Code are five in number. They are summarized in the following table.

 

 

 

Transitory Age:

 

 

The criminal responsibility and guilt of persons between the age of fifteen and eighteen years are determined as though they were an adult, but the punishment that may be ordered is not necessary that which would be ordered if they were adults. As a result, the court has three options. First, it may order any of the penalties applicable to adults and mitigate it according to article 179. However, the mitigation is not compulsory. In such case, the court may not sentence the criminal to death penalty. Secondary, the court may order one of the special penalties applicable to young persons. Finally, the court may order special measures applicable to young criminals based on the conditions laid down under article 177.

 

 

Special Provisions Applicable to Young Persons:

 

 

Complete immunity from criminal liability is enjoyed only by infants and ceases to operate when they attain their tenth year. Thereafter and until they reach penal majority (i.e., when they attain their sixteenth year), young offenders, known in the Code as “young persons”, are no longer exonerated from criminal provisions, though they may not be treated in the same manner as adults.

 

Where a young person commits an offence the penalties and measures to be imposed by the court shall be those provided in Book II, Chapter IV of the Criminal Code between Arts. 157-168. The reason that the young persons are subjected to these special provisions is not because they do not deserve the ordinary penalties but because they are not as well suited to their requirements as those special measures and penalties. As compared to measures and penalties prescribed for adults, the court has wider option and allowance for flexibility. Besides these provisions that provide young persons, among other things, protection from being subjected to the ordinary penalties is applicable to adults or being kept in custody with adult offenders. By doing so, the provisions squarely fits with the Constitution of the Federal Democratic Republic of Ethiopia and the UN Convention on the Rights of the Child.

 

Reasons for Young Persons Criminal Liability

 

 

There are two basic reasons that underlie why young persons have to be held criminally liable. First, young persons are assumed to begin to understand the nature of their acts and able to form a decision and keep to it. During this period and therefore, their intelligence and volition develop and become gradually closer to that of an adult. Second, the commission of an offence by them calls action by the society because no action has been taken at home or at school or it has failed. On attaining their tenth year, therefore, minors are no longer a problem to their parents alone; they become the responsibility of the society as well. Thus, the community is entitled to ensure that its younger members are not let to corrupt and perish. Accordingly, the primary aim of any action taken with respect to young persons is and must be education and correction; penalties should be used in the last resort.

 

Assessment of Sentence  in Case of Young offenders:

 

 

Art. 55 provides some guidelines, that the court has to follow in assessing the sentence regarding young offenders. According to Art.55 first aliena, the court in assessing the sentence shall take into account the age, character, and degree of mental and moral development of the young offender as well as the educational value of the measures to be applied. In view of enhancing the capacity of the special measures and penalties prescribed bring the desired result, i.e. reform and rehabilitation; the second aliena of the same provision allowed the court to vary its orders at any time to ensure the best possible treatment. This implies that the court must always take into account the best interest of the young person, a standard adopted by the FDRE Constitution and ICRC.

 

 

Measures for the Problem of the Young Criminals

 

No.

Problems of young persons

Measures

Articles

Duration of Measures

 

 

1

Feeble mindedness, arrested development, mental disease, epilepsy, addiction to drink etc.

 

 

Treatment

 

 

158

When the purpose is served or when the court ordered or when the criminal attained 18 years (article 164(1))

 

2

 

Moral abandonment, corruption, absence of care and protection

 

Supervised education

 

 

159

When the purpose is served or when the court ordered or when the criminal attained 18 years (article 164(1))

 

 

3

Spending free hours and holidays with bad friends and places

Keeping the young criminal  at home or school

 

 

161

The duration is fixed by the court  (article 161)

 

4

 

Dangerous disposition, commission of grave crime

 

Admission to corrective institution

 

162

Between one to five years or when the young criminal attaines 18 years (article 164(2))

5

Any other problems

Reprimand and censure

160

No duration

 

The court may impose penalties on young criminals. These penalties as provided under article 166-168, are of two kinds. These are fine and imprisonment. The court may not sentence a young criminal to fine or imprisonment unless the measures applied under article 158-162 have been applied and failed.

A court may sentence a young criminal to fine when he/she is capable of paying the fine and of realizing the reason for its imposition. Thus, a court may not impose fine on young criminal who has no means of income. The fine should be proportionate to the criminal’s means and gravity of the crime (article 167). Thus, a court may impose different fine on two young criminals who have committed the same crime with the same circumstances if the magnitude of their income differs. The fine may be imposed in addition to imprisonment.

 

A court should not order the sale of property of the young criminal or  the conversion of fine into labor or compulsory labor. If the failure to pay the fine is deliberate,  the court may convert the fine into home or school arrest.

 

The court may impose imprisonment on young criminals when they committed a crime punishable with rigorous imprisonment of more than ten years or death penalty (article 168(1)). The young criminals serve the sentence either in corrective institution or penitentiary detention institution. If the court sends the young criminals to penitentiary detention institution, they will not be mixed with prisoners who are sentenced to rigorous imprisonment or special confinement. The court sends young criminal when they are incorrigible or likely to be a cause of trouble, insecurity or corruption to others. Thus, the court sends young criminals to penitentiary detention institution when the measures ordered against them could not reform them. The court shall transfer young criminals from corrective institution to penitentiary detention institution when they are dangerous or when they have attained 18 years and the sentence extends beyond the age of majority.

 

The period of detention shall extend from one year to ten years (article 168(2)). The enforcement of this period of detention takes place under the regime of simple imprisonment (168(3)). That is, the court should not send young criminals to a prison that is appointed for the purpose of rigorous imprisonment. If young criminals appear to have been reformed, they may be released on probation after they have served two-thirds of the sentence of imprisonment. Thus, a young criminal who is sentenced to six years of imprisonment may be released on probation if he/she serves four years of imprisonment.

Infancy/Immaturity: Art. 52

 

Suppose a 3-year-old pushes her baby brother down the stairs, and the baby dies. Could we try the 3-year-old for murder? Does the 3-year-old commit the act of killing? Does she have the requisite intent (mens rea)? In fact a 3-year-old does not even know the meaning of life and death. To prevent silly inquires into whether an infant committed a criminal act with the requisite criminal intent almost every jurisdiction set infancy limit below which children are absolutely exempted from being subject of criminal law. This is based on the principle that an infant is incapable of distinguishing between right and wrong and so no criminal responsibility could be fastened in regard to his deeds. Children of such age are granted absolute immunity on the ground that they are doli inapax, that is, incapable of doing a criminal act, because a child under such age group cannot form the necessary intention to commit a crime. This is therefore a legal presumption. In other words it is immaterial whether the nature and quality of the wrong done as it is normally one to be done only by someone with high caliber and experience.

 

Some jurisdictions have adopted a qualified immunity as well to children whose age is above the infancy limit but below certain age limit. In the case of India, for instance, section 83 provides qualified immunity to a child above seven years of age and below twelve years of age. In other words, if it is     shown that the child has not attained the requisite degree of understanding to judge the nature and consequences of his conduct, he is exempted from criminal liability. In the absence of such proof, a child above seven years of age as much liable for his criminal act as an adult is. The maturity of understanding can be inferred from the nature and quality of the act, subsequent conduct of the doer and allied factors.

 

However, no absolute rule as regards the age of discretion is found. It differs from country to country. In Malaysia and England, the age of complete immunity is ten years. In India, Canada and some states in Australia it goes down to the age of seven. In Germany, Austria and Norway the minimum age is 14 years; while in Denmark and Sweden, it is 15 years; in Argentina a minor under 16 years and in France below 13 years if age is not punishable. Interestingly in the United States, the age of absolute incapacity varies from state to state ranging between eight to 12 years. Thus, the higher infancy limit a country has, the higher protection would children get and vise versa.

 

It is also common in many jurisdictions to have different age groups for young offenders with different treatment and punishment prescribed. The problems arising in relation to young offenders are not the same as those, which arise in relation to adults, because there exists between the two classes of offenders a difference in the nature of their intelligence or volition. A minor, even though he may be more intelligent than an adult, is nevertheless not a “miniature man” and he may not be treated as such for his appreciation of the world, is not that of a grown-up person.  This implies that a court dealing with a young offender consider the offence merely as an indication that he requires medical treatment, education or correction. The idea of retribution is almost altogether absent from the provisions applicable to young offenders, as indicated by the fact that the seriousness of the offence committed is not normally taken into account in deciding the offender’s fate. The issue is not to punish a juvenile “according to the degree of individual guilt”, but “to ensure the best possible treatment” and penalties.

 

This however does not mean that the provisions applicable to juvenile are not of a penal nature. Quite to the contrary, young offenders other than infants are subject to criminal law; yet, as they constitute a special category of wrong-doers (as is emphasized by the fact that, in many countries the law concerning them is enacted separately and not embodied in the penal code, and that they are tried by specialized courts under special rules of procedure), they come under special rules. (Philip Graven, pp. 144-145)

 

Accordingly, the Criminal Code of Ethiopia deals with infancy (which ends at the age of nine years), adolescence (which extends from nine to fifteen years, this being the limit of penal majority), and an intermediary period extending between penal and civil majority, i.e., between fifteen and eighteen years of age.

 

 

The part respectively played by the medical expert and the court in deciding upon the criminal’s responsibility is one of the most controversial issue. In most common law countries, it appears that the jury is allowed to ignore the findings of the medical expert. In the case R v. Bryne, Per Lord Parker argued that the ‘mental responsibility of a person for his acts’ points to a consideration of the extent to which the accused person’s mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts. For him the question is therefore to what extent the abnormality in a particular circumstance substantially impaired the mental responsibility of a person for his acts.

 

A further argument is that the question of degree of essentially one for the jury. He press go on his argument and says that medical evidence is relevant, but as the question involves a decision not merely as to whether there was some impairment of the mental responsibility of the accused for his acts but whether such impairment can properly called ‘substantial’, the jury may quite legitimately take different position from doctors. The argument goes on and says after all claiming that, there is no scientific measurement of the degree of difficulty, which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble, the court can only approach in a broad, common sense way.

 

Sub-art.(3) of Art.51 on the other hand seems to put a clear boundary between the roles of the court and the medical expert in determining irresponsibility.  The court therefore may not substitute itself for the expert and adjudicate medical questions, to which he is not qualified to decide. Instead, the provision required the court to be bound to the ‘definite scientific findings’, in the sense that, if the expert states that the accused is a chronic alcoholic or a pyromaniac, it may not ignore this statement in making its decision. If the judge is allowed to disregard scientific findings to which he is not qualified to appreciate, some say he would at once be entitled to convict an irresponsible offender merely because the latter committed, in the judge’s opinion, an atrocious crime demanding punishment.

 

The same is true with the role of the medical expert. He/she may not substitute himself/herself for the court and adjudicate legal questions, to which he is not qualified to decide. It is, therefore, for the court to draw the “legal inferences” from the expert’s findings, so that if the expert states the accused is not fully responsible and should accordingly sentenced to, say, a punishment reduced by one half, the court is not bound by this statement.

Not published yet

Intoxication-Intentional or Culpable Irresponsibility: Art. 50

 

The problems intoxication poses to the criminal justice system, and to law enforcement in particular, are by no means negligible. Drug addiction and alcoholism remain two of the foremost-unsolved problems confronting the criminal justice system of many countries.  To hold perpetrators responsible for crimes committed under the influence of either may not be a solution, but may have a minimal advantage of making treatment services accessible for them.

 

Alcoholism may constitute a disease provided it has damaged the brain to an extent as to grossly impair the ability to make rational judgment and emotional responses. On the other hand, though the taking of alcohol inevitably impairs judgment and the ability to control the emotion, its transient effect cannot be accounted as a “disease”. Therefore, the question lies as to under which of the two conditions one is exempted of criminal liability. Further, a person is deemed voluntarily intoxicated when he takes an intoxicant including alcohol, drugs or any other thing being aware that it is or may be an intoxicant and he takes it in such quantity as impairs his awareness or understanding. Or a person may be involuntarily intoxicated say, for the purpose of medication or being under coercion. The question that repeats itself here is that under which one of the conditions the doer can claim exemption from criminal liability?  Alcoholism, whenever it constitutes a disease, depending on the extent it affected the ability to make rational judgment and emotional responses; it would justify irresponsibility or only diminished responsibility.

 

 

Voluntary and Involuntary Intoxication:

 

 

Regarding intoxication, whether voluntary or involuntary, most penal codes flatly state that intoxication is not defense which is actually, not true. Involuntary intoxication, for example, because of prescription medication or coercion can constitute a defense. Where an offense is committed under intoxication caused due to fraud or coercion, the intoxicated man may not be said to have acted on his own accord, and therefore, is not responsible for the consequences of his acts. The justification for such a provision is based on the contention that the accused had himself not contributed to his drunkenness, which was not likely to be repeated as in case of voluntary drunkenness.

 

Most courts in America have held that even voluntary intoxication, when sever, may render a person incapable of forming certain specific types of criminal intent, which is an ingredient element of the crime in question. For example, murder in the first degree requires, among other things, premeditation and deliberation. Many courts have also held that if a defendant was so grossly intoxicated that he or she could not premeditate and deliberate, he or she can at best found guilty of murder in the second degree. To that extent, the law on intoxication conforms to the mens rea principle. But American law does not absolve intoxicated perpetrators of all criminal liability: gross voluntary intoxication may simply lower the degree of the crime committed. (Adler, Mueller and Laufer)

Generally the development of the law on drunkenness has passed through the following three stages:

1. That insanity, whether produced by drunkenness or otherwise, is a defense. The distinction between the defense of insanity in the true sense caused by excessive drinking, and the defense of drunkenness, which produces a condition such that the drunken man’s mind becomes incapable of forming specific intention, has been preserved throughout the case. The insane person cannot be convicted of a crime. There was no law that takes note of the cause of insanity. If actual insanity in fact supervenes as a result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause.

2. That evidence of drunkenness, which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts, proved in order to determine whether or not he had the intent.

3. That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. (Gaur)

The defense of drunkenness and its legal effects in Ethiopia is prescribed under Art. 50 and the discussion are followed here after. The provision is chiefly intended for persons who with some state of mind contravene the law while under voluntary influence of alcohol or drugs or any other means. It is based on the rule that intoxication is no defense if caused by the offenders’ voluntary act.

 

The main deference between Art. 50 and 48, 49 is not the bio-psychological condition of the offender but it is the condition, that creates the irresponsible nature of the offender. Unlike the legally recognized causes under the preceding articles, under this article, it is the doer who puts himself into a condition of irresponsibility or of limited responsibility by means of alcohol or drugs or by any other means.  Speaking objectively, the doer’s condition at the time of the offence was that of a mentally deficient person and may lead to say he should be treated in the same manner as the mentally deficient a person regardless of the fact that he himself deliberately created this abnormal condition. But speaking subjectively, intent existed before the offence was committed, since the accused was capable of forming a specific intention prior to intoxicating himself. Under this condition, the person not only did he voluntarily place himself in an abnormal condition, but he did so in order to carry out a decision which he had freely made. This is also applicable to circumstances under which a person voluntarily places himself in a state of irresponsibility when he knows and accepts the possibility of doing wrong. Therefore, in the cases coming under this condition, the court must ensure that the case actually committed is that which the accused directly or indirectly intended when he intoxicated himself. This is applicable in relation to both offenses of commission (if A drinks in order to kill B) or omission (if A, a soldier on leave drinks so as to disable himself from going back to his unit). Art. 50(1) supports the second conception, which prevents an accused benefiting from the provisions of Arts.48 and 49 on the sole ground that he committed an offence, while in an abnormal condition that was created by himself.  Thus, the fault of the doer operates as an absolute prohibition from invoking Arts.48 and 49. Instead, in such cases, the offender may be convicted and sentenced as though he had been fully responsible at the time of the act.

 

The second condition by which an offender shall not be benefited from the provisions excluding or reducing the punishment is when a person who commits an offence in a state of partial or complete irresponsibility in which he placed himself, not for the purpose of committing an offence, but when he knew or should and could have known that he was apt to do wrong while being in an abnormal condition (Art.50/2). Under this sub-article, a person drinks or consume drugs, though he foresees, but rejects, the possibility of doing wrong or he is not, but should and could be aware that he may do wrong. This therefore is applicable to states of negligence—advertent and inadvertent. The implication here is that the doer will not be held liable if the wrong he has done is not punishable.

 

The third situation with which Art.50 deals is that of an accused who, having placed himself in a condition of complete irresponsibility commits or attempts to commit an offence with which he did not intend to commit; nor could and should he have foreseen the possibility of committing it. For instance a person may in a particular quite and cold evening staying home alone begin to drink with intent to get himself warm and relaxed but may get completely drunk and commit a punishable act. In such instances, the accused is not liable to punishment under sub-art.3, as the person has neither criminal intention nor criminal negligence existed before he intoxicated himself. According to Art.57 (1), he should, therefore, go free because he is not guilty of the offence committed. However, the need to ensure the peace of the public justifies that the offender should be punished and should not be permitted to excuse himself on the ground that he did not mean to do any harm prior to getting drunk. Under sub-art.3, this conflict is solved by holding the doer not of the offence actually he committed but of a special offence against public safety (Art.491). Art.491 is based on the assumption that anyone who intoxicates himself is always a latent menace for others and that he is punishable as soon as he creates a concrete danger, i.e. he commits an offence.

 

The Defence of Intoxication At A Glance:

Sub-Art.

State of the

Defendant

State Induced By

Crime

Committed

Legal Consequence

Art. 50/1

Absolute or

Limited

irresponsibility

Own fault

(Voluntary Intoxication)

Intentionally

(In order to…)

Fully liable to punishment

 

Art 50/2

Absolute or

Limited

irresponsibility

Own fault

(Negligence)

Negligently

Punishable for negligent commission of the crime

 

Art. 50/3

Absolute

irresponsibility

Own fault

Accidentally

(Neither contemplated nor intended)

Punishable under Art. 491 provided the crime is punishable with at least 1 year.

 

Art. 50/4

Absolute

irresponsibility

No fault on his part

(i.e. has been coerced)

While incapable of

forming  any mental element

Shall not be liable to punishment

 

 

The following important inferences can be drawn from the above legal provisions:

- Voluntary drunkenness is not defiance for the commission of a crime, except for minute variations in the liability.

Sub- Art. (2)  reduces the defendant’s liability to negligent commission of the crime which according to Art. 59/2 is punishable only if the law expressly provides for punishment.

- Su-Art. (3) deals with act neither contemplated nor intended which is committed in a state of absolute irresponsibility and prescribes punishment in accordance with Art. 491 provided that such act is normally punishable with at least one year’s imprisonment. Under Art. 491 the defendant is punishable with fine or with simple imprisonment not exceeding one year, according to the degree of danger or gravity of the act committed.

- Involuntary such as, the thing which intoxicated him was administered to him without his knowledge or against his will shall afford him a valid defence as it does not amount to putting himself into the state of irresponsibility.

 

Voluntariness here has to be understood clearly. There are two things to be distinguished:

  • Voluntariness relating to the act of getting intoxicated,
  • Voluntariness in doing the act subsequent to the intoxication.

There can a ‘state of incapacity’ produced either by drinking voluntarily or involuntarily. Once the state of incapacity is produced it means that the person is incapable of doing things voluntarily i.e. he is irresponsible either absolutely or partially. However, Art. 50 is concerned with the combination of two factors:

1. He should not have by his own fault out himself in the state of drunkenness,

2. Whish makes him absolutely irresponsible so as to satisfy the essentials of Art. 48 or partially irresponsible so as to fit in to the requirements of Art. 49.

If the defendant gets intoxicated voluntarily:

  • he is fully liable under Sub-Art (1) of Art. 50,
  • he is liable for negligently doing it under Sub-Art.(2), if he is aware, or could  or should have been aware of the likelihood of committing a crime subsequently,
  • he is liable for committing disturbances resulting from acts committed in a state of culpable irresponsibility under Art.491 of the Special Part, if he is completely unaware of the likelihood of committing a crime subsequent to intoxication.

 

Doubtful Cases

 

 

Although nowhere in the Code specifically said so, every accused is presumed to be responsible for his acts. Therefore, as a general rule, the alleging party need not prove that the accused was capable, at the time of the offence, of understanding what he was doing and of behaving accordingly. This presumption, however, is destroyed if doubt arises regarding the offender’s mental stability. The court may fall in doubt about the responsibility of the accused as there are objective reasons to doubt or any of the conditions identified by law are found. And the court cannot proceed before clearing the doubt either through medical examination and inquiry into the character, antecedent and circumstances of the accused. On the basis of the finding, the court shall make such decision, as it thinks fit.

 

 

  • Conditions where the Court Falls in Doubt about the Responsibility of the Accused:

 

The first condition where the court is allowed to doubt about the responsibility of the accused brought before it is when the accused displayed any sign of insanity. In fact Art.51 (1) does not specify how the ground of the doubt should be serious. But almost certain that a mere informal conduct displayed in the courtroom is inadequate for the court to fall in doubt about the mental condition of the accused. Instead there should be objective reasons for the doubt (e.g. the accused is interdicted by civil court, the accused produce a medical proof to the effect that he is suffering from a given mental disease, etc.). In other words, if its doubts arises from factual elements and not mere conjecture, the court is obliged to obtain medical evidence and it should do so of its own motion even though the accused is not affected as provided for in the second alinea of sub-art (1) or does not raise a defense of insanity.

 

The second situation in which a medical examination must be ordered is that where the accused shows any symptoms of derangement of the mind or epilepsy, or he is deaf and dumb or suffers from chronic intoxication due to alcohol or drugs. In these instances, it is immaterial whether or not the court is in doubt as to the offender’s mental stability. The court is rather presumed to have such suspicions because the accused is in such a condition that there exists what might be termed as a presumption of irresponsibility.

 

In either of the above conditions, the court is bound to obtain the medical evidence. It may, in addition, require other evidences to help the court to clarify the point in issue.

 

 

  • Duties of the Medical Expert:

 

According to Art.51 (2), the duties of the medical expert are of two folds. First, the medical expert shall investigate whether any of the biological causes of irresponsibility or limited responsibility mentioned in Art.48 and 49 is present and what its effects. What the court expects the of medical expert is to state whether the offender’s faculty of “judgment and free determination were affected by some biological defects and, if so, whether the deprivation was complete or partial. In this case the essential time reference is the time of the commission of the crime. Only this time is important to determine irresponsibility. However the mental condition of the offender at the time of trial is also important to determine whether the offender is capable of standing on trial. Accordingly, most criminal codes authorize the court to order medical experts to examine and state the mental condition of the offender both at the time of the commission of the crime and at the time of trial. The Amharic version of sub-art.2, second alinea accurately refer to both the time of the commission of the crime and the time of the trail. The English version, however, refers solely to the time of trial and many agree that this simply an oversight.  Secondly, the medical expert advise the court as to the curative or protective measures that it might be necessary or desirable to order should the accused be found not fully responsible for his acts.

 

Case Problem:

Three friends Khalid, Addisu and Binyam went to a restaurant to celebrate the birthday of Addisu. They started taking drink after drink and were enjoying their time. During their conversation they picked up an argument over an issue and Biniyam got really angry with some of the arguments made by Khalid and seriously left the place and went out. Biniyam was fully drunk by that time. After sometime he reappeared there and continued to drink with his friends. Then Khalid teased him over the matter once again. Biniyam this time got enraged and took a beer bottle and hit Khalid hard on his head. Khalid had a profuse bleeding due to the cut wounds by the sharp edges of the bottle and was rushed to the hospital by both Addis and Biniyam. Unfortunately Khalid died after two days of medical treatment.

Can Biniyam raise the argument that he his case should be treated under Art. 50/3?

Note these points:

1.It was a case of voluntary intoxication.

2.The commission of the act was neither contemplated nor intended as is clear from the facts. They were friends and celebrating a birthday.

3.No evidence of previous enmity or even any disturbances between them.

4.Assume that provocation as defence is ruled out as it was not a case of gross provocation.

5.Assuming that Art. 50/3 can be rightly applied to the facts of the case, can this case be appropriately be dealt with under Art. 491?

6.Do you think that any case is punishable with at least one year of imprisonment (and above) can rightly be brought under Art. 491?

Not published yet

General Defenses:

Defenses for criminal liability are circumstances that relieve an accused from conviction of guilt and its consequent penalty. These circumstances exempt a criminal from criminal liability or entitle him/her to a reduced punishment.

 

Defenses for criminal liability are incorporated in criminal law in different ways. Some are clearly provided by the law as defenses while others are not. The latter categories are special defenses.  They are defenses that apply in particular crime. Special defenses could be non-fulfillment of essential conditions of the crimes provided in the special part of the Criminal Code. According to article 665 of the Criminal Code, for example, the crime of theft is not complete unless the thing abstracted belongs to somebody else. If the accused abstracted his/her property, he/she can raise this fact as a defense. Special defenses could also be defenses provided for particular crime. For example, Article. 640 of the Criminal Code prohibit obscene publications. Article 642 provides defenses for the crime of obscene publication. As a result, artistic, literary or scientific works or objects are not considered obscene or indecent.

 

The other categories of defenses are those expressly provided by law as defense. They are general defenses. They are applicable to all crimes. They are excuses and justifications. The Criminal Code of 2005 does not follow this dichotomy. However, we follow this classification in this module for convenient understanding.

 

Excuses are defenses that arise because the defendant is not blameworthy for having acted in a way that would otherwise be criminal. Excuses are the defects and unusual conditions of the criminal during the commission of the crime. Thus, if persons commit crime unwillingly, without understanding the nature and consequences of their act, with mistaken belief of facts or law, the law excuses them from criminal liability. In the cases of the excuses, the focus is on the individual criminal rather than on the crime committed.

 

Defenses that arise when the defendant has acted in a way that the law does not seek to prevent are called justification defenses. In short they can be called “justifications”.  In cases of justifications, there are preliminary conditions that enable the doer of the act to take necessary and proportionate action. Thus, when there is an attack on legally protected rights, the steps taken to reverse the attack is justifiable act. Similarly, if the persons found themselves in imminent and serious danger and their only choice to avoid this situation is by committing a crime, their act is justifiable if they have chosen the lesser harm. In justifications, the focus is on the act rather than on the criminal. The society encourages those acts. Justifications include acts required or authorized by law, legitimate defense, necessity and professional duty.

 

 

Justification for Defences:

 

Law reflects the value of the society. It punishes persons blamed for committing harmful act against the society. Nevertheless, sometimes the society does not blame the perpetrator of an act that has caused harm to it when that act is committed in certain circumstances. The circumstances in which the doer of an harmful act will not be blamed are provided by the criminal law as defense for criminal liability. The basic reason for the existence of the defense is that it is not just to hold persons guilty for a crime for which the society does not blame them as a criminal.

It is the basic principle of criminal law that there is no crime unless all its elements are fulfilled. Article 23(2) of the Criminal Code provides that a crime is only completed when all its legal, material and moral ingredients are present. The absence of one of these ingredients necessarily implies the absence of crime. If persons commit a crime under the circumstances that provide them with defenses, one of the ingredients of the crime is lacking. As a result, there is no crime committed. For example, homicide is a crime. A person commits homicide when he/she kills a criminal who has been sentenced to death penalty. Yet, there is no crime of homicide as executing death penalty is a lawful act. Thus, justifications are defenses for criminal liability. In justifications, the legal ingredient of the crime is not present. Similarly, the act is short of moral element when irresponsible persons commit it. Consequently, irresponsibility is an excuse. Thus, where either the legal or the moral element is not present, it is not legally acceptable to punish persons for their deeds.

 

 

Burden of Proof in Cases of Defenses:

 

 

The general rule is that it is the duty of the prosecution to prove the accused’s guilt and if at the end of and on the whole of the case, there is a reasonable doubt created by the evidence, given by either the prosecution or the defence, as to whether the accused had committed the crime or not, the accused is entitled to acquittal on the ground of benefit of doubt (Woolmington v. D.P.P., 1935 A.C. 462). However, “the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always are good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go, but an innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breakdown and loose credibility with the community. If unmerited acquittals become general, they tend to lead to cynical disregard of the law, and this in turn , leads to public demand for harsher legal presumptions against indicted ‘person’and more severe punishment of those who have found guilty.”(Per Mr. Justice Krishna Iyer)

 

But the burden of proving the existence of circumstances bringing the case of the accused within any of the general exception in the criminal Code, or within any special exception or proviso contained in any part of the Code, or in any law defining the crime is upon him, and the court of shall presume the absence of such circumstances. It means if an accused pleads defence within the meaning of ‘excusable’ or ‘justifiable’ grounds of defence, there is a presumption against him and the burden to rebut that presumption is on him. This does not mean that the accused must lead evidence. Circumstance which would bring the case of an accused within any of the general defences may be proved from the evidence given for the prosecution or otherwise found on the record. Where an accused pleads a defence but the evidence given in support of such plea fails to satisfy the court affirmatively of the existence of circumstance bringing the case within the general exception pleaded, the accused is still entitled to be acquitted if upon a consideration of the evidence as the whole a reasonable doubt is created in the mind of the court, whether the accused is or is not entitled to the benefit of the said exception. If it is apparent from the evidence on the record, whether produced by the prosecution or by the defence, that a general defence would apply then the presumption is removed and it is open to the court to consider whether the evidence satisfactorily shows that the accused is entitled to the benefit of the general defence.

 

The principles enunciated in the provisions relating to defences to criminal liability are in fact rules of evidence carrying either conclusive or rebuttable presumptions. They deal with the circumstances which preclude the existence of mens rea. They are, therefore, enumeration of the circumstances that are incompatible with the existence of mens rea. Huda calls these principles “conditions non-imputability”, and Kenny calls them “conditions of exemption from criminal liability”. If the existence of facts or circumstances bringing the case within any of the exceptions is proved, it negatives the existence of mens rea necessary to constitute the crime and thereby furnishes a ground for exemption from criminal liability.

 

 

Criminal Responsibility and Irresponsibility

 

 

Responsibility is a person’s mental fitness to answer in a court for his/her action. Persons are criminally liable only if they are responsible for their acts. Thus, the court should not punish the criminals unless it finds them responsible for their acts. Therefore, to determine the guilt of persons it is necessary to ascertain their responsibility. Responsibility or irresponsibility is concerned with the criminals’ awareness and their capabilities to control their action. If the criminal do not know the nature and consequences of their act or if they cannot control their acts despite their awareness, they should not be responsible for the result of their acts. Therefore, before ascertaining that the criminals have committed the crime intentionally or by negligence, it is necessary to assure the responsibility or irresponsibility of the criminals. Irresponsibility may arise in three cases. With regards to adults, it may arise from insanity or intoxication, and with regards to infants, it may arise from their immaturity.

 

  • Responsibility is Presumed By the Court: Generally, when a person is accused of a crime his/her responsibility is presumed by the Court. The prosecution need not prove it. This means that of  the important things necessary to make a person liable for punishment within the meaning of Art.49/1 are established the in the following way:

 

  1. The proof that the act was done by the accused---It is the burden of the prosecutor.
  2. The fact that the accused is responsible for his acts—This is presumed by the Court.

 

However, the question of irresponsibility arises in any of the following two situations:

 

  • When the accused invokes it, particularly, during the preliminary objections as per Art. 130/2/g of the Criminal Procedure Code, on the first day of the criminal Proceeding.
  • When the Court is doubtful about the mental condition of the accused due to partial or complete deprivation of mental faculties. The Court may entertain such a doubt at any stage of the trail from the conduct of the accused on the trial.

Once the ‘question’ arises it becomes necessary to decide the facts in the light of Arts. 48 and 49. Then it becomes the burden of the defence to prove the accused is irresponsibility beyond reasonable doubt. Then the burden of the prosecution is only to raise a reasonable doubt in the mind of the Court that the accused is responsible and deserves punishment.

 

 

1.1. Absolute Irresponsibility: Art. 48

 

 

According to Art. 23 (3), a criminal offense is not punishable unless the accused is found guilty. Moreover, no person is liable to punishment unless he is found responsible for his acts (Art. 48). Rather the fulfillment of the requirement as to responsibility is a condition precedent to the fulfillment of the requirement as to guilt. This is to mean that no person may be convicted of an offence unless, at the time of commission, he was not irresponsible for his acts. In other words, before a court can decide whether the accused acted intentionally or negligently, it must satisfy itself that the accused was not incapable of so acting.

 

On the other hand, as there is consensus about the fact that insane persons cannot commit punishable crimes; the problem of defining criminal responsibility remained the most controversial one.  The question as to who is responsible person is not yet settled for it involves numerous extra-legal elements. Philosophers, lawyers and physicians have done their best to lay down the criteria for responsibility that could have been utilized across all disciplines. Spiritualists and positivists as well have got different opinions as to who responsible is. The former defined responsibility in terms of free will while the latter thought in terms of determination through factors such as heredity, education, geographical conditions, and the like. This made the effort exerted to reach an entirely complete and satisfactory definition of responsibility a futile exercise.  Thus, more that could be done was to identify certain signs or symptoms, which, if present in a person, should prohibit his being regarded as responsible for his acts. The basis or sources of many of these signs and symptoms were some celebrated common law cases that involved a defense of insanity. Accordingly different tests or rules were developed along each case that aimed at determining irresponsibility. In general responsibility could not be defined in a positive, but only in a negative manner, and this is why most codes including the Ethiopian Criminal Code (2005) do not describe responsible but irresponsible persons.

 

 

Insanity:

 

Insanity is a complete defense to a criminal charge. It is based on the assumption that one who is insane has no mind and hence cannot have the necessary mens rea to commit a crime.

 

Being deprived of free will, an insane person is placed in an even worse condition than a child, because the latter can at least control his will and regulate his conduct, whereas the former cannot. Moreover, the act of an insane man, being unintentional and involuntary, no punishment can deter it. At the same time, people are to be protected from being attacked by maniacs and accordingly, a provision has been made in many jurisdictions for the detention and care of insane persons. (Gaur, K D., Criminal Law, Cases and Materials, 4th ed., Butterworths, 2005, New Delhi, pp. 115-127)

 

Insanity, according to medical science, is a disease of the mind, which impairs the mental faculty of man. In law, insanity means a disease of mind, which impairs the cognitive faculty, namely, the reasoning capacity of a man to such an extent as to render him incapable of understanding the nature and consequences of his act. It excludes from its purview, the insanity caused due to emotional and volitional factors. It is only insanity of a particular or appropriate kind, which is regarded as insanity at law that will excuse a man from criminal liability. The legal concept of insanity widely differs from that of the medical concept.

 

The kind and degree of insanity available as a defense to a crime has many times been defined. However, the most notable of all is the ‘right and wrong test’ formulated in Mc`Naughten’s case. It was an interesting case, worth remembering. According to the summary of the case Daniel M’Naghten was obsessed by the idea that Sir Robert Peel, by creating the Metropolitan Police in London, wanted to destroy the liberties of Englishmen. He hunted Sir Robert to kill him, but mistakenly shot and killed his secretary. M’Naghten was acquitted of the murder charge by virtue of insanity.

 

The House of Lords moved by the controversy aroused and clarified the defense of insanity as follows:

 

Every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crime, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was suffering under such a defect of reason, from disease of the  mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know he was doing what was wrong. (Freda and others, 1994: 91-93)

 

Therefore according to their clarification, a defendant is not guilty of crime if, at the time of the act, due to severe mental illness, First, in cases the defendant does not know the nature and quality of his or her act (in other words, did not appreciate what he was doing so that the “act requirement” is not fulfilled), for example, a person strikes another person, and in consequence of an insane delusion thinks he is breaking a jar or second in cases, that the defendant does not know the wrongfulness of his or her act (in other words, if he could not form the requisite mens rea), for exaple, one may, under insane delusion, believe an innocent man whom he kills, to be a man who is going to take his life.

 

On the other hand, the isolated reference to and application of the second part of the test and the resultant miscarriage of justice caused courts to constantly change and reshape their tests of insanity. The following are some of the short-lived insanity tests:

 

  • The irresistible impulse addition to the M’Naghten test: A defendant may be acquitted if he or she was unable to control the action due to mental illness.
  • The Durham Rule, or “product test” (1954): The defendant must be acquitted if the crime was the product of mental disease or defect.
  • The Currens Test (1961): The defendant must be acquitted if he or she “lacked substantial capacity to conform his conduct to the requirements of  the law…as a result of mental disease or defect.”

 

Latter in 1982 the American Congress settled the issue, at least as far as federal law is concerned, by providing for an acquittal by reason of insanity if “at the time of the commission of the act the defendant, as a result of sever mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his act.” But majority of states in the region have adopted the version codified in the American Law Institute’s Model Penal Code and known as the ALI test:

 

A person is not responsible for criminal conduct if at the time of such as a result of mental disease and defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law.

 

This test focuses on the defendant’s capacity to form the necessary criminal intent by asking whether the defendant appreciated the wrongfulness of the act. It also emphasizes, as part of the mens rea, the defendant’s volitional capacity: Could the defendant really intend to commit the wrongful act? Did he have the “(substantial) capacity” “to conform his conduct to the requirements of law”?

 

The laws, which the Criminal Code of Ethiopia provides regarding defense of insanity, are found in Article 48.  As elaborated earlier in this section, our law do not describe responsible, but irresponsible person. It implies that an offender is presumed to be responsible so long as he does not show any of the signs of partial or total irresponsibility enumerated in the law, and only an offender who does not show any of these signs is fully liable to punishment. Thus, responsibility of an offender is not an element that the alleging party must always establish. Instead, responsibility is a legal presumption.

 

Essential Conditions to Establish the Defence of Insanity:

 

 

Art. 48(2) requires the proof of the defence of irresponsibility i.e. the incapacity of the defendant to form a guilty intention basing on the following important things:

 

  1. Nature of the incapacity: That the accuses is incapable of understanding the nature or consequences of his act or of  regulating his conduct according to such understanding,
  2. Reason of the incapacity: That such incapacity is due to age, illness, abnormal delay in his development or deterioration of his mental faculties, (one of the causes specified under Art. 49 (1) i.e. a derangement or an abnormal or deficient condition).
  3. Time of the incapacity: That such incapacity exists at the time of his act that produced the consequences in question.

 

The Code resorted to one of the three principal methods of defining criminal responsibility, namely: The biological method, the psychological method and the bio-psychological method. The three methods differ on factors that deem to be the source of irresponsibility. The biological method consists in specifying a number of physical or mental disabilities or defects deemed to render the person concerned irresponsible. The psychological method on the other hand consists in prescribing that a person incurs no liability that, at the time of the offense, was incapable of understanding the nature of his acts or of controlling himself. And according to the bio-psychological method, followed in many modern Codes including the Criminal Code of Ethiopia, a person is regarded as irresponsible only if, at the time of the commission of the crime, he was deprived of his mental faculties in consequence of certain biological defects. In other words there must be a causal relation between the biological defect, which the offender suffers, and the psychological failure as a result of which the person become incapable to understanding his acts. However the mere presence of the two does not suffice. Aaccording to this system reasons other than mental disease such as anger, hatred or lust, are capable of rendering a person ‘mad’ or ‘insane’. In the popular sense of the terms, they are excluded from being considered as grounds of legal irresponsibility

 

Sub-Article 2 of the provision clearly provides the test of insanity. It provides both the biological and psychological tests, which are enumerated below:

 

  • Age: refers to old age, for senility may affect a person’s mental faculties;
  • Illness: refers to any form of mental as well as physical disease as a result of which a person is deprived of his mental faculties.
  • An abnormal delay in the offender’s development, which includes cases such as idiotism, cretinism, the consequences of deafness, dumbness sleeping sickness, and the like;
  • Deterioration of mental faculties of the offender due to poison, intoxication by alcohol or drugs, hypnosis or somnambulism;

The sub-provision further cross-referred to the unlimited biological causes recognized under Article 49 as capable of affecting person’s state of mind.

Regarding the psychological consequences in most legal systems two different mental conditions are recognized to claim exemption from criminal liability.

 

These are:

a) the accused was incapable of knowing the nature of the act, owing to unsoundness of mind, or

b) the accused was precluded by reason of unsoundness of mind from understanding that what he was doing was either wrong or contrary to law.

 

In this regard, our law in the same sub-Article specifies three manifestations.

They are:

  • inability to understand the nature of the act. For example, if person strikes another, and in consequence of an insane delusion he thinks that he is breaking a jar.
  • inability to understand the consequences of the act for example a person may kill a child under an insane delusion that he is saving him from sin and sending him to heaven
  • inability to regulate one’s conduct according to such understanding (some suggests this implies the notion of ‘irresistible impulse’ which includes cases where the offender is deprived of the power of controlling his conduct/Graven)  by disease.

These psychological failures can also be categorized into lack of intelligence and absence of will power. In the first category, due to some kind of disease the doer is deprived of minimum of intelligence, which should be present in a responsible person so as to enable him to know what he is doing.  In the second category, the doer is deprived minimum of ‘power of will’, which should be presented in a responsible person so as to enable him to make a reasonable decision or to act in accordance therewith. For a person to be regarded as criminally irresponsible, it is not necessary that both his intelligence and volition should have been abolished. It is sufficient to show that the offender at the time of the act was totally deprived of either his intelligence or volition. Further, it is of no importance whether the biological causes are temporary or permanent nature. Only the presence of one type of disease at the time of the act is relevant.

 

Proving Insanity

 

In addition to its role in determining responsibility, insanity plays an important role in determining whether the defendant is competent to stand trial or not. In this latter case only relatively less complication may occur in establishing insanity for it is based on the actual state of mind of the defendant existing at the time of trial. A more controversial application of insanity occurs when one attempts to determine whether the defendant was sane or not at the time of the act. This is because insanity may have been completely removed at the time of trial. Therefore, although in both cases medical science has the decisive role to play, looking in to the motive and conduct of the accused before, during and after the incident is more relevant in establishing insanity for the purpose determining irresponsibility. Accordingly, Art. 51 of the Criminal Code authorized the court to order an inquiry to be made as to the character, antecedents and circumstances of the accused person. Therefore the conduct of the doer prior to the incident as well as at the time of the incident and subsequent to the incident does not support the contention that he was insane at the time when the offense was committed; the court may make such decisions as it thinks fit. This implies that ‘legal insanity’ is not the same thing as ‘medical insanity’ and a case that falls within the latter category need not necessarily fall within the former.

 

Besides, the law presumes that every person is sane unless the contrary is proved. Mere absence of motive would not indicate that the accused was insane, or that he did not have the necessary mens rea for the commission of the offence. Thus in a case where pre and post facto situations show little or no sign of insanity, the doer bears a heavy burden to prove its existence at the time of the commission of the act.

 

At last, what the law lays down is not that the accused claiming protection under it should not know an act to be right or wrong, but that the accused should be ‘incapable’ of knowing whether the act done by him is right or wrong.

 

The capacity to know a thing is quite different from what a person knows. The former is a matter of potentiality; the latter is the result of it. If a person possesses the former, he cannot be protected in law, whatever might be the result of his potentiality. In other words, what is protected is an inherent or organic incapacity, and not a wrong or erroneous belief which might be the result of a perverted potentiality.

 

 

Legal Effects of Criminal Irresponsibility:

 

The legal effects of criminal irresponsibility are of two kinds. other is that an irresponsible person incurs no liability since, according to sub-art. (1), “the criminal who is responsible for his acts alone liable to punishment. The other is that hand the law required the court to ensure the irresponsible person will not be any more a menace for others. Therefore, sub-art. 3 authorizes the court to make orders under Arts. 129-131, whenever these measures are necessary for the treatment of the offender or the protection of the public or both.

 

Limited Responsibility: Art. 49

 

 

It is believed that the fact that some who committed particularly notorious crimes invoked insanity and escaped justice has prompted several states to pass legislation providing for an alternative disposition, that of “guilty but mentally ill.” This novel idea is meant to cover defendants not mentally ill enough to qualify for an outright acquittal “by reason of insanity,” yet not well enough to be found fully accountable and “guilty”. Therefore, between insanity and sanity, there exists intermediary stages where an offenders faculties are affected to such an extent that, although he is certainly able to understand what he does and to act accordingly, it is equally certain that his intelligence or will-power is not that of a “normal” person and that his degree of guilt is consequently lesser than that of such a person. Such a person may neither be relieved of liability, since he is not fully irresponsible, nor should he be liable to a full punishment, since he is not fully responsible.

 

Unlike irresponsible persons, who are for some biological reasons totally deprived of their mental faculties, semi-responsible offenders are persons who are for some biological reason only partially deprived of their understanding or volition.  It is therefore, to this kind of offender that Art. 49 applies and it applies only where there is no doubt the accused is not fully irresponsible within the meaning of Art. 48.

 

Characteristics of Limited Responsibility

 

 

It was believed that some biological diseases or defects are less serious to cause absolute irresponsibility. Accordingly it was proposed that the biological causes of limited responsibility described under Art. 49, stated as a derangement of the mind or understanding (e.g. hysteria), an arrested mental development (e.g. imbecility) and an abnormal or deficient condition (e.g. alcoholic intoxication) do not have the effects specified under Art. 48.

 

But according to the contemporary view, the causes and characteristic ingredients of limited responsibility are similar to those of irresponsibility. The question is that whether the abnormality substantially impaired the defendant’s mental responsibility for his acts or not. This is a question of degree.  In most cases only expert evidence will enable the court to decide whether and to what extent the accused is irresponsible. But some common law jurists  such Per Lord Parker argues that the question involves a decision not merely as to whether there was some impairment of the mental responsibility of the accused for his acts but whether such impairment can properly be called ‘substantial’, medical evidence serves a limited purpose. For jurists, it is a matter upon which juries may quite legitimately differ from doctors.

 

A person is not partially responsible for the sole reason that he is of low intelligence or poor education. A mediocre intellect does not amount to feeble-mindedness within the meaning of criminal law. A person may have an insufficient education or be capable of realizing that he does something unlawful. Therefore, like Art. 48, it is required that the offender should have been at the time of the offense in a biological abnormal condition affecting his mental faculties. In fact, it sufficient that the offender’s capacity of understanding or will power should have been diminished.

 

Furthermore, a person is not partially responsible for the sole reason that he is of week character or morally perverted. “The court must reduce the penalty only with regard to an offender who suffers from a mental disease or whose mental development is incomplete, but not with regard to a weak person who is aware of the unlawful nature of his act and who commits an offence out of dishonesty”.

 

 

Legal Effects of Limited Responsibility:

 

 

Like that of irresponsibility, the legal effects of limited responsibility are of two kinds:

1.The accused is liable to punishment since he was not irresponsible at the time of the act and he is capable of understanding the meaning and purpose of punishment; however, the penalty must be reduced because the offender’s responsibility, and consequently his degree of guilt, is reduced. Since persons who are not fully responsible for their acts may, like irresponsible persons, be in need of medical treatment or threaten public safety, the court must, whenever the necessity is present make an order under Art. 130 or 131, as the case may be.

Thus, unlike other defenses, the legal effects of insanity, whether absolute or limited, shows that the court is duty bound to deal with the causes of the insanity. If the court orders confinement or compulsory treatment, that is for the benefit of the offender himself or the community in which the defendant is living.

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