c


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Criminal courts are the core of the judicial system in which very important decisions are made
courts, as interpreters of the law. Are institutions on which the criminal justice system depends,
and is responsible to?

The main junction of the court is to determine the legal out come of disputes. In so doing, judges
are expected to be governed by legal principles and not by personal preferences or political
expedience (vago, 1088).

The court process is meant to provide and open and impartial from for dispensing justice. Court
hearings are conducted with established rules of procedures to ensure that the out come will be
clear and fair and objectively prevail. The court exists to see that justice is done and not to see
that the state wins1.

 0

 

0entencing the formal pronouncement of judgment and punishment on the defendant following
his or her conviction in a criminal prosecution2. 0entencing is a final step a judge takes a against
a defendant who has been found guilty of the crime he is accused of3.

The sentence must be proportionate to the offence. The business of the court is to do justice and
only by a achieving some measure of proportion between one sentence and another can it do
1
justice as between one offender and another.


1
Andargachew Tesfaye. The crime problem and its correction V.II page 80
2 Ibid, page 83
3 Ibid



 !0




The preface of the 2004 criminal code par. 7 line 9) provisions have been inserted which enable
the court to pass the appropriate penalty for each case by carefully examining from the lightest to
the most sever punishment. Another point which must be raised in connection with the
determination of sentence is that the purpose of criminal law is to preserve the peace and security
of society. It protects society by preventing the commission of the crimes; a major means of
preventing the commission of crime is punishment4. It is intended that the courts should on
passing sentence take in to account the purpose of the and different aims of punishment.
However, there are some important points which should be considered in the whole range of
penal aims. One of this important point is expediency, i.e. a sentence ought not to be so serve
that it arouses a public sympathy to the offender. Another pint is that a sentence ought to be the
minimum necessary to achieve the desired purpose.

"c
 #

Punishment is the infliction by the state of consequences normally considered unpleasant, on a
person in response to his having been convicted of a crime5. According to Hart for an act to be
punishment for a crime it must involve the following elements. 

1. [It must involve pain or other consequences normally considered unpleasant,

2. It must Administered for some offence against legal rules,
3. It must Administered to an actual or supposed offender for his offence,
4. Persons other than the offender must intentionally administered it
5. It must be imposed and administered by an authority constituted by a legal system against
which the offence is committed6. The provisions of the penal code are generally inspired
by the principle that [reformation justice´ is preferable to [punitive justice.´ This does
not does not exclude the use of penalties in the general struggle against criminality.7

The rules that guide the application of the code should be the general concern for the
preventation and suppression if the individual accused of crime.82


4 The Ethiopian criminal code of the federal democratic republic etho. Pro. No. 414/2004 preface, par. 8, line 3
5 Andargachw Tesfaye, the crime problem and its connection V, II pages 170
6 Ibd page 171
 It is stated in clear terms, both in which one of the criminal and the preface to the code that
the underlying purpose of punishment are rehabilitation and deterrence. Various articles the
code are designed to implement his concept of rehabilitation.

"


!

 

$
Retribution is a theory of punishment that maintains that an offender should be punished for
the crime he or she commits because he or she deserves the punishment (Vetter and
0ilverman, 1986).9 it is as old as its history e.g. an eye for an eye, a tooth for a tooth etc.
Retribution is based on the assumption that criminals are wicked, evil people who are
responsible for their actions and deserves to be punished. However most recently there is a
resurgence of the philosophy known as [just deserts´ meaning that criminal sanctions should
be imposed because the offender deserves them (Inciardi 1987)10.
The term retribution means something for recompense. It is primitive human reaction
because people who get hurt want to hurt back. It is because such human reaction that the
notion of the law of just desert has been receiving a good deal of support. A just deal is the
philosophy that the punishment should fit the crime, that punishment should be the prime
consideration sentencing. Although modern legal systems consider crude retributive
sentences as out date, the harm done (e.g. are apparently taken in to account while
determining sentence).

_______________
7 Ibid
8 Ibid page 218
9 Ibid page 87
Ibid






!eterrence means the discouragement of criminal behavior of part of known offenders and of the
public by the threat of punishment (Cole, 1986)11.



 
 
#



%

0pecific deterrence indicates the belief that punishment brings a bout beneficial change in the
behavior of the person who had undergone the punishment. On the other hand general deterrence
indicates that punishing the criminal will have additional desirable effects by deterring would be
offenders from committing crimes.12 various area specialists e.g. psychologist, sociologists,
political scientist, economists etc had experimented with deterrent effects of punishment.
According to salmond deterrent punishment prevents offence by making all deals which are
injurious to others injurious also to the doers of them.13. On the other hand L.Hall and 0.Glueck
argued that fear of punishment is but one small item is a large number of forces that restrain most
men from violation the law. The history of punishment shows that there is no necessary
correction between the severity of punishment and the incidence of crime.14

Incirdi conclude that [belief on the efficiency of deterrence seems mainly based on conjuncture,
faith, and emotion and there is over whelming evidence to suggest that deterrent effect on
punishment is at best weak.´ In creased crime rates as well as high level of recidivism among
many offender populations are ample evidence of this.15

 

Isolation is simply the removal of dangerous from the community. It is also referred to as
restraint or in capacitation.16 its objective is community protection rather than revenge. The
assumption is that crime may be prevented if criminals are physically removed from the
community from further criminal activity.

Comment
Isolation considerations are glaringly manifest in prevents detentions rather than judicial
sentences. Fro instance during the preceding centuries certain [ambas´ used to be preventive
detention seats of royal princes who were regard as contestants to the throne.

This was so, not owing to the commission of offences but rather because the monarch in power
considered the power expedient for peace and order. Incapacitating is administrative or political
and not judicial (unless it is based on law and imposed by judicial decision as in the case of
criminal laws such as Art 128 of 1957 penal code that provide for preventive detention
applicable to a certain category of dangerous habitual offends). Thus we should distinguish
between isolation as purpose of punishment through judicial decision and isolation that extra
judicial.

Like retribution isolation as a philosophy of punishment have some problem. If the goals of
isolation are crime perventation and community protection sanctions have to servers to be
effective. Thus life imprisonment with out a possibility for parole and death penalty are the
forms of restraint that will guarantee alternative such as temporary imprisonment until the
community can be reasonably assured that the criminal will no longer commit further crime is
not possible to predict.

As the saying goes, [societies create the crime and the individual commits it. 0ociety will of
course be prevented from those offenders who are put behind prison bars. But the 0cio-material
base (source) will definitely given rise to new offenders17. Even more, so ex convicts may
endanger society after their release unless reform during custody and rehabilitation becomes the
major purpose of punishment.



 $ 

Rehabilitation is defined as a rational fort he reformation of offenders based on the premise that
human behavior is the result of antecedent causes that may be identified and controlled by
objective analysis.18 The focus is on treatment of the offender not punishment the assumption is
that future crime could be avoid by changing the offenders behaviors.
Rehabilitation as a philosophy for sentencing is based on the premised that offenders have their
own identifiable reasons for committing the crime. These causes can be discovered addressed
and modified rehabilitant suggests to the offender that [crime does not pay and that there is a
better way´ the propose is to modify the behavior of the offender and reintegrate the law breaker
in to the society as a productive citizen.

The goal of rehabilitation has a wide support because in comparison to other sentencing
philosophies it takes a positive approach in eliminating criminal behaviors. The supporters of
rehabilitation argues that unlike the false hope of deterrence and the temporary measures of
retribution and isolation, rehabilitation is the only humanitarian mechanism in modifying the
criminal behavior of the offender.

!r. Philippe graven in his renowned commentary duly give emphasis to the propose of reform
[ Although there are instances where the purpose of the law can not be achieve except by
purely deterrent or disabling steps. The rule which should guide the application of the code is
that more than deterrence and disablement the eradication of criminality . !epends on the
correction of criminals.´

[The offender should, while punished by detention, be reeducated and his character traits be
reshaped and once again in the furnace for being molded.

Though reformative treatment involve benevolent justice yet the detention of the offender for
a sufficient period of time to bring about realization, repentance and re adjustment is in it self a
punishment.´19

Comment
&  c


Capital punishment is one of the codes of ancient forms of punishment early legal provisions
such as the codes of Hammurabi, early Greeks, and Romans, provided for the death penalty upon
conviction for the death penalty up on conviction for a wide range of offences.20 capital
punishment a judicially ordered execution of a convicted criminal carried out in the same of the
state has been in varying degrees throughout history.

The death penalty is the most extreme and final punishment a court can impose on a criminal,
usually for the mot heinous crime of fast degree homicide. The growing humanitarian sentiments
raised the question as to whether there is a need for death penalty for any crime. As a result, in
1847 the state of Michigan in the United 0tates became the first state to abolish the death penalty
for murder. Increasing number of countries such as Belgium (1861) !enmark (1933), England
(1965), Holland (1870), and a number of states in U0A are abolished the death punishment.
Ethiopia is among those Africa, Asian and Middle Eastern countries still maintained capital
punishment. Ethiopia is among those African countries which maintain capital punishment.
Ethiopia is among those African countries which maintain the death penalty. That [sentence of
death penalty shall be passed only in case of grave crimes and on exceptionally dangerous
criminals in the cases specifically laid down by law [punishment for completed crimes and in the
absence of any extenuating circumstance.´

Generally death penalty shall not pass except the reasons provided in the above mentioned article
are fuelled.
  


' 
 

!
 

Under a system of absolve retribution any act or omission contrary of the community or to
generally accepted moral standards ought to be punished. Whether or not it is expressly declared
by law to be a criminal offence. However history would supply numberless illustrations of the
fact that abuses and arbitrary actions take place when the powers of the courts are restricted only
by their own conception of what is right and what is wrong12 Therefore it is desirable that those
who are entrusted with the administration of justice carry out their duties with in well defined
limits.

"c
!

The fact that article 55 and article 55 and 56 of the constitution have been inserted in a chapter
dealing with the rights of the people confirms that the principle of legality aims at protecting
individuals from such arbitrariness actions as they might be exposed to, should it not be provide
that the written law is the only source of criminal laws.22 

Article 2 requires the enactment of the provision that specify acts or omissions that are
considered crime and provisions that notify the correspondent penalty or measures that shall be
imposed. Each crime.

Primarily courts can not punishes acts or omission which are not prohibited by law (null crime,
sine lege)23 and secondly courts can not impose penalties or measures other than those proscribed
by law (nulla pena, sine lege)24

""0

  # 

$
#
 


Comment
The penalties and other measures provided by this code must be applied in accordance with the
sprit of the code and so as to achieve the purpose it in view art. 125
The court shall determine the penalties and other measures in conformity with the provisions of
the general part of this and the special provisions defining offence and their punishment26- (i.e
the determination punishment must be within the range provided for each specific offences and
in accordance with the factors stipulated in the criminal code subject to extenuating and
aggravating circumstance stipulated in the criminal code).

"&(
   #     


Extenuating and aggravating circumstance are elements of a material and or personal nature
which do affect the offenders¶ liability to punishment but may or must be taken in to
consideration at the time when sentence is passed. They pertain to the position of the actor as
well as to the conditions surrounding the commission of the offence. !epending on there
character and effects they are either general or special27 and are laid down by law so as enable
the court to give effect to the fundamental principles of individuality28
Art 79 of the Ethiopian penal code supplies detailed list of the reasons why the court may reduce
the punishment) so called sputum of legal circumstance)

However, subject to the provisions of art 80 and 83 and to such other express indications as may
be found in the general or especial part of the code concerning the migration of the penalty to be
ordered, with respect to certain inferences this list is exhaustive.

!epending on the test used in classifying them the said circumstances may be divided in to
material (external or objective) personal (internal or subjective) and mixed circumstances or
circumstance which precedes accompany or follow the commission of the offence. Most of them
however pertain to the subjective element of the offence, and are centered on the questions
whether the accused has a dangerous disputation. The penalty may be reduced firstly when the
offender acted out of light mindedness, lack of intelligence, stupidity or ignorance provided that
when provisions such as those concerning limited responsibility mistakes of act or ignorance of
the law in applicable. The accused should not be liable to a reduced. The law does not say that
the judge must, but that he may reduce the punishment for any of the reasons described by law.
This discretion is necessary so that, despite the judgment of any condition stated in art 64, the
judge should not be completed to take this condition in to consideration when mitigation is
underserved in view of all the circumstances of the case. The provision of art. 84 concerning the
assessment of the sentence in cases of cumulating of extenuating and aggravating circumstance
actually confirms this interpretation.

The article of the reduction with in the limits allowed by law is to be decided from case to case
and it may vary depending in particular on whether on or more, or which extenuating
circumstance are present.
It must be clear, however, that the punishment to be mitigated is the one which the court would
have ordered in the absence of extenuating circumstances. The court therefore, is expected to
make a double estimation. Firstly it should decide which it would have ordered had the accused
not acted in extenuating circumstance. 0econdly it must reduce this penalty having regards to the
extenuating which is present in the particular case. This means, that when an offence is liable to
a serve punishment and in the alternative with a more lenient one, the punishment to be reduced
is not as a matter of right the more lenient one.

From a practical point of view the difference is considerable if one bears in mind the provisions
of art. 184. If the punishment to be mitigated is rigorous imprisonment not exceeding five years,
the court must substitute therefore, simple imprisonment punishment for not less than six month,
the accused may be sentence to ten days simple imprisonment.30

The question may be whether the act that a general extenuating circumstance is present necessary
implies that, the court is prohibited from calculating the punishment otherwise than in
accordance with art. 184. This question which is of particular importance when the court is
expected to change the nature of the punishment, may it seems, be answered in either of the
following ways. On the one hand, art 184 may be deemed to confine it say to showing the court
how law it may go when it from reducing it to a lesser extent than is prescribed by the other
hand, in the absence of any indication in the records of the codification commission it may be
argued that art. 184 is imperative and gives the court no discretion at all.
Art. 81 is parallel to art 79. In that it lay down a number of circumstances which bear up on the
degree of guilt of the accused and indicate that he a particularly dangerous disposition.

0ubject to the provisions of art 82 and 83 and to such art in the special part as provided for
aggravated offences, penalties may not be increased on ground other than those laid down in art
81.
0ubject to these restrictions, the court must assess sentence having regard to all aggravating
circumstance which show that the accused is dangerous. The punishment will be vary, therefore,
depending on which and how many of these circumstance are present in any given case.31 Yet
although art 81(1), first line, states that the said circumstance lead to increasing penalty it must
be clear that the court may no exceed the limits of the punishment persevered by law for the
offence committed (while it may exceed them when special aggravating circumstance are
present).

Here again, as in the case coming article 79, the court is expected to make a double estimation. It
should firstly decide which punishment it would have ordered, in the absence of aggravating
circumstances and then increase this hypothetical punishment in view of the fact that the
offender is dangerous.

According to art 84, if a case occurs in which certain factors should be considered in aggravation
and others in mitigation, the court must assess sentence having regard to all of them. The
operation as to how to assess the sentence should be effected as provided under art 84(2), the
court should firstly estimate the penalty that would be adequate where there is no neither
extenuating nor aggravating circumstances present in the case. The hypothetical penalty will then
be increased having regard to the [aggravating circumstance´ but this increased penalty will it
self be hypothetical since it is not one that will ultimately be ordered, but the one that will be
reduced in light of [extenuating circumstance´ the actual penalty therefore will the increased
penalty thus reduced.

When several aggravating circumstance are present in a given case they must all be taken in to
account. However, the comulation there have no bearing up on the upper limit of the punishment,
i.e. the court is always bound by the limits a lid down in art 188 what ever the number of the
general aggravating circumstances, and by those laid down in art. 189 or 193 as the case may be
regardless of the fact that general aggravating circumstances are present together.

Therefore, the first operation which the court is expected to make is to calculate the penalty so
that should reflect all the ground of aggravation that is present in the particular case. Then the
court will reduce the penalty if there is no any reason for doing so, more over contrary to what is
state in art. 84(2) mitigation at least in the grounds mentioned in art 79 and 80, is not
compulsory unless the court is satisfied that the accused is less dangerous on these grounds.

Finally if the court is of opinion that certain facts should bear up on sentence, it reduce the
hypothetical punishment in the manner provided for by art. 80 and 185, then we can say that the
court realy have calculated the sentence [according to the degree of individual guilt, his
antecedents. Motive and purpose, his personal circumstances and standard of educations, as well
as the gravity of his offence and the circumstance of its commission.32

")*# #
 #
 

0entencing is supposed to be carried out on the crime he is accused of however, considerable use
of discretion may be available to the sentencing judges the use of discretion, in same case, may
depend on the gravity of the offence. For instance, in some countries no discretion is allowed in
felony case, while in other countries it is not only allowed, but judge are also at liberty to
determine the nature (probation, five, imprisonment)33

Judges have sentencing options and some judges lend to use it. However the judge¶s decisions
are influenced by the recommendation of various officers like prosecutors and probation officers.
The other economic and criminal background of defendants, the type of always involved etc. In
countries where the practice is allowed, plea-bargaining also influence the sentencing of
defendant (vago, 1988)´
Usually judges do not have the time to determine the most important elements of the crimes
committed and specific characteristics of the offender before deciding the sentence, especially
when the violation is minor.

Judges tend to categorize offences and pass judgment without paying attention particular to
particular offenders when the defendant makes a plea of guilt, the judges may essentially leave
the case the decision to the prosecutor and the defense attorney in this case the only function of
The judge to legitimate the plea of guilty in an open court when plea of guilt has been entered in
a serious cause, the judges will request the prosecutor to outline factors very briefly and
recommend a sentence. If the plea is accepted to have been done voluntarily the defense cannot
challenge the prosecutors¶ word.

Therefore, the best the defense attorney can be do is to plead for mercy and ask for a just
decision. For this reason, many defendant believe that the prosecutor is the person who gives the
time and not the judge (vagu, 1988)34 * under art. 86 par 2 of the code the judge is given wide
dictionary power in choosing to be awarded to offenders. Although, as has been mentioned
before, the Ethiopian code follows the system of legal extenuating and aggravating circumstance
and not the one of judicial or indeterminate circumstances under art 83 the court shall give
reasons for applying extenuating or aggravating circumstances not expressly provided for in this
code and shall state clearly its reasons for taking this exceptional course with a view to ensuring
that any factor may be taken in to account which ought to bear up on the sentence, enables the
court to reduce or increase the penalty on the grounds other than those expressly mentioned in art
79, 82, art. 83.
Therefore, provides for judicial circumstances which, however, are only relatively indeterminate.

For a court which is of option that a circumstance laid down in art 79-82 should be considered in
in mitigation or aggravation may not confine it self to reducing or increasing the punishment
accordingly. It must describe the said circumstance and explain why in thinks that it should
affect the sentence (i.e) why is circumstance warrants the conclusion that the accused is more or
less dangerous. In the very term of this article, mitigation for reason different from those
mentioned by low is only exceptional course.
Art 83 given the discretion to the court to decide whether other circumstances should be taken in
to account consideration, the manner in which they penalty is in the courts discretion.
The court therefore, is not bound by the provisions of art 184 and 188.
The discretionary power of the court applies exclusively to the creation of additional general, and
not special, extenuating of art 83 bear up on the sentence in exactly the same manner as those
provided by art 79 and 81 respectively, (i.e) the warrant ordinary mitigation art 184 or
aggravation art 188)35
+0 
,, 

+0

In modern legal system, the legislature does not prescribes a single definite and unvarying from
of treatment for each type of offences rather it leaves to the sentencing court to assess a sentence
with a range provided by laws. Then the court may have discretion to sentence a convicted
person with in a range say term between 5 and 15 years. For certain types of offences, the law
may compel the judge to pass a specified sentence, (such as life imprisonment or death penalty)
In the utilitarian view of punishment (i.e reform, deterrence and incapacitation) the legislature
usually provides the judge with the guide for selection of sentence appropriate for circumstance
under which the court may mitigate or aggravate penalty. However, the Ethiopian courts most of
the time applied some laws in a relaxed manner. This is due to the fact that do not pay much
attention to the weight of the law. They do not strictly observe extenuating and aggravating
circumstances which are provided in the code. This attitude results in serious miscarriage of
justice.

As we could see from the decisions rendered by the court in cases discussed in the previous part,
the judges had only reflected their own feelings while applying the law to the issues rather than
carefully examining the case and apply the law. For instance in case of public prosecutor Vs the
defendant ü
    

 
 before giving its decisions judges heard both sides of
opinion. However, on the determination of the penalty, they simply penalized under art. 539 (1)
and determined the liability under art 117 (1) of the criminal code. This provision clearly shows
that the death penalty is passed on exceptional cases when there is no any extenuating
circumstance. The crime was gave but as I mentioned death penalty should be given by taking in
to consideration every circumstance of the case. But the court gave the decision of the penalty in
its direction that impliedly shows that Ethiopian criminal courts have broad discretionary power.

,, 

ù Criminal courts should give care in fixing criminal liabilities because criminal acts are
complex than civil cases and the harm caused by criminal acts can not be valued. Our
criminal codes provided remedies for each crime what is expected from the judges is to
 interpret and apply the law being governed by legal rules not by their own personal
preferences. Courts should apply the law I accordance with the purpose and objectives
intended by the legislature.
ù In most provisions of the criminal code there is a gap between the maximum and the
minimum level of punishment that lead judges to decide as they want so, the legislature
have to frame a clear guide lines on sentencing policies.
ù The general extenuating and aggravating circumstances provide in the code should be
examined carefully before applying them. Because these circumstances are surrounded
by different preconditions and these preconditions are not exhaustive. This has been an
obstacle to judges to give decisions in accordance to the law. There must be detailed and
clear enough circumstances.
ù If punishment is to serve its has to fit the particular need of the offender. This goal may
only be achieved through individualization of punishment which is first to differentiate´
the offender from all other offenders in personality, character, socio-cultural back ground
and the motivations of his crime, to determine which among a range of punitive,
corrective, psychiatric and social measures is best adopted to solve the special set of
problems presented by the offender. In such a way a materially to reduced the probability
of his committing crime in the future.
ù Article 88 of the criminal code has established the general guiding principles that the
court has to assess the sentence in accordance with the degree of the offender,
considering the dangerous disposition of the offender, his antecedents, motives and
purpose, his personal circumstances and his standard of education, as the gravity of the
his offence and the circumstances of its commotion. This being the general guiding
principle for the assessment and determination of sentence which is appropriate to the
particular offender and the law as expressed in the criminal code also provides enormous
discretionary power to the courts. However, the court should use it in a consistent
manner, having a certain ultimate objective views. [The court shall carefully examine
from the lightest to the most sever punishment and determine only the penalty
appropriate for each case. Judges in giving decisions should respect the law and the
society that expect from them justifiable decision.