III.

Post Arrest Procedures

Remand

Release on Bail

Habeas Corpus

IV. Prosecution and Preliminary Inquiry

Prosecution

The Preliminary Inquiry

 CHAPTER THREE
POST ARREST PROCEDURES
The major procedures after arrest are :
 Release on bond { Art 28)

 bail, {Art 63-79}

 remand (art 59-62) and

 habeas corpus. {it is a civil proceeding)

 There is a possibility for the individual detained to be releases

by the police or taken to court within the limit of time set by

the law. The court may either permit or deny the bail question
and order remand. Appeal lies from such a decision.
 In case a person is detained unlawfully, one may request

habeas corpus. Thus, this chapter discusses the procedures

following arrest.
 Release on bond art 28
 The investigating police officer can release the suspect on bond
under the following conditions
1) The offence is not punishable with rigorous imprisonment as a sole or
alternative punishment.
2) It is doubtful that an offence has been committed or
3) It is doubtful that the summoned or arrested person has committed the
offence.
 The same conditions are laid in Art.4(2) Of Anti corruption
special rules of evidence proclamation( pro 434/ 235.
 If not the suspect can apply to the court as per Art. 64.
 But what if the police officer is fully convinced that the suspect did
not commit the said offence? Can he release unconditionally?
Remand
 Art 19-21, FDRE Constitution

 Art 29, 59-62, CPC

 it is a constitutional requirement to bring the detained

individual within a reasonable time to the nearest court.

 This is an early stage. The police usually have to gather

further evidence.
 The court should limit itself to checking a prima-facie case

against the suspect.

 The court has to ascertain the legality of the arrest.

However, it should not unnecessarily hamper the legal

efforts of the police to prevent and investigate crime. The
court should appraise each and every case striking a
balance between the interests of individuals and that of the
community.
59. - Detention.
(l) The court before which the arrested person is brought (Art. 29) shall
decide whether such person shall be kept in custody or be released on
bail.
(2) Where the police investigation is not completed the investigating
police officer may apply for a remand for a sufficient time to enable the
investigation to be completed.
(3) A remand, may be granted in writing. No remand shall be granted for
more than fourteen days on each occasion.
Art 19(4) FDRE Constitution
……Where the interest of justice requires, the court may order
the arrested person to remain in custody or, when requested,
remand him for a time strictly required to carry out the
necessary investigation. In determining the additional time
necessary for investigation, the court shall ensure that the
responsible law enforcement authorities carry out the
investigation respecting the arrested person's right to a
speedy trial.
Discussion Questions
1. What are the procedures to be followed in handling remand cases?
2. Can one appeal on an order of remand?
3. Is it legal to entertain bail question by the remand bench
after ordering the arrestee to remain in custody?
4. What should a court handling a remand case do upon
ascertaining that the suspect was detained by mistake? Is it
legal to release the suspect unconditionally even without
personal recognizance?
5. What are the pros and cons of limiting the period of remand?
 Release on Bail [Art 28, 63-79, CPC]
 There are three major factors that influence the decision to
grant bail.
 The status of the Investigation( Art 29 and 59)
 The type of the offence committed( Art 63)
 The behavior of the suspect( Art 67)( bail not allowed)
 FDRE Const. Art 19
Persons arrested have the right to be released on bail. In
exceptional circumstances prescribed by law, the court may
deny bail or demand adequate guarantee for the conditional
release of the arrested person.
 Principle Art 63
Whosoever has been arrested may be released on bail where the
offence with which he is charged does not carry the death
penalty or rigorous imprisonment for fifteen years or more and
where there is no possibility of the person in respect of whom the
offence was committed dying.
 Art. 63 indicate that one can be released on bail if the offence
with which he is charged is not punishable with,
 Death penalty or
 Rigorous imprisonment for15 years or more or
 The victim is dead or
 There is the possibility of death.
Art. 67. - Bail not allowed
An application for bail shall not be allowed where:
(a) the applicant is of such nature that it is unlikely that he
will comply with the conditions laid down in the bail bond;
(b) the applicant, if set at liberty, is likely to commit other
offences;
(c) the applicant is likely to interfere with witnesses or tamper
with the evidence.
 Possibility of absconding,

 Tampering with evidence,

 Commission of other offences,

 In case a court determines to release the suspect, it has to

take into account several factors, such as, the nature of the
offence, social ties of the suspect, and capacity to bring
guarantee.
 The release of a suspect could take several forms.
These include bond, surety, personal recognizance,
and cash. Generally, they can be classified into
monetary and non-monetary.
 Release on bail is a conditional undertaking. The
suspect or accused has to comply with the terms of the
release. One should attend each and every proceeding
of a court. There may be forfeiture of the mount of
money set as a bail. The released person may also be
detained as the case may be.
 A defendant refused bail, or who objects to the
conditions under which it is offered must be told the
reasons for the decision, and informed of their right to
appeal. The prosecution also has increasing rights to
appeal against a decision to grant bail.
Art 69
 conditions on which the person is to be released;

 the “nature” and “amount” of the bail bond. The term “nature” refers to

the type of security the court could demand. The available alternatives
are personal recognizance of the accused, money deposit or production
of a guarantor or any combination thereof. The determination of the
nature of security is seen along with the determination of the amount
with a view to complying with the objectives of bail.
 The “amount” refers to the extent of liability that the accused in

personal recognizance or in money deposit she makes or the amount the

guarantor undertakes to pay should the accused fails to appear on such
date and at such place as fixed by the court. The amount is always
expressed in terms of money.
 The amount should not be too low that the accused would rather evade

justice by paying the said amount; nor should it be prohibitively high

that it keeps the accused in jail for lack of the said amount because the
accused is still presumed innocent.
 Art 69 provides that there are four standards to be
taken into consideration in the assessment of the
nature and amount of the bail bond. These are:
a) the seriousness of the charge;
b) the likelihood of the accused’s appearance;
c) The danger to public order which her release may
occasion; and
d) the resources of the accused and her guarantor. Out of
those four standards provided for by the law for
determination of the nature and amount of conditions
of bail bond, three of them are relevant and only two
stand in themselves.
 REVISION BY LOWER COURT
New facts(Art. 74.)
Where. certain facts are disclosed which were unknown

when bail was granted the court may at any time of its
own motion or on application reconsider the conditions
on which bail has been granted and may order the
released person to produce new sureties or to be
remanded.
But can the P/P cause such a revision when he get

stronger evidence?
Can the court require such a revision on behave of the

accused?
 APPEAL
 Where bail has been refused by a court, the
accused may appeal in writing within twenty
days.
 After considering the application the court
shall dismiss the application or grant bail.
 No appeal shall lie against a decision given by
the court of appeal under this Article.
 The question is
 Isappeal on interlocutory mater possible?
 Can the prosecutor appeal ?
Discussion Questions
1) Can a public prosecutor appeal on the granting or amount of bail? Why or
why not?
2) Are the requirements under Art 63 of the CPC alternative or cumulative?
If they are cumulative only crimes against persons are non bailable.
3) As the law and practice shows, it is possible to entertain a bail case during
remand and at the beginning of trial. Can a trial court enforce the bail
granted during remand in case the suspect fails to appear without due
cause?
4) What are the requirements to be released on bail by the police?
5) How should a bail allowed by police be enforced?
6) There is no bail for a corruption case entailing more than ten years
imprisonment (Art 4/1, Revised Anti-Corruption Special Procedure and
Rules of Evidence Proclamation No. 434/05). What if the public
prosecutor deliberately cited sub-article 2 of the CC while the proper
provision is sub-article 1 of Art 407-408? Should the court see the
substance of the case for determining bail or the form of the matter as it
appears in the charge? Should the court see the minimum or the maximum
punishment for bail purpose?
 Chapter Four
Prosecution
 There are four alternative actions to the public
prosecutor after police investigation file is
completed. These are:-
1) To order further Investigation( 38 C)
2) To order Preliminary Inquiry (38 B)
3) Decision not to Prosecute (38 D)
4) Decision to Prosecute (38 A)
Order of Further Investigation. 38-C
Ifthere are gaps in the police investigation file
To fill such gaps P/P may order the police to

conduct further investigation

If the gaps cannot be filled by further

investigation the prosecutor will decide

whether to institute or not to institute a
criminal charge.
Closure of police investigation file
According to art 39, the public prosecutor shall

close the police investigation file where the

suspect:
 Has died; or
 Is under nine years of age or

 Cannot be prosecuted under any special law or under

public international law (diplomatic immunity).
While doing so the public prosecutor shall send
a copy of his decision to the Advocate general,
the private complainant, if any, and the
investigating police officer.
Decision not to institute the charge( Art 42)
 Grounds for the public prosecutor not to institute a charge;

 Insufficiency of evidence (42, 1-A)

 Absence of the accused in case prosecution in absentia is
not allowed. (42,1-B)
 Period of limitation (42,1-C)
 Pardon or amnesty (42,1-C) and
 Public interest (42,1-D)
 Refusing on other ground is prohibited under Art. 42(2)
 The criminal justice policy expressly recognize the possibility

of instituting a criminal proceeding where new evidence is

obtained after the P/P has dropped the case for any one of the
reasons listed under Art. 42(1) of the code.
Public Interest
Art. 42(1) D empowered the minister of ministry of justice to

order the public prosecutor not to institute proceedings where

such order is in the interest of the public.
This provision opened the door for the public prosecutor to decide

in the public interest not to institute a charge even where there is

adequate evidence.
The decision is to be made by the minister not by the prosecutor.

This provision of the code has been repealed by the general

attorney proclamation.
The criminal justice policy recognize the public interest as a

ground not to file a criminal charge. Accordingly when the public

interest so requires the public prosecutor shall not file a charge
even if there is sufficient evidence.
 The policy empowers the attorney general to decide such cases.
Insufficiency of evidence
If the public prosecutor believe that there is no sufficient

evidence to justify the conviction he shall not institute the

proceedings.
The evidence would be insufficient to institute a charge when

the public prosecutor believe that the existing evidence would

not prove the case beyond reasonably doubt.
To this effect, the prosecutor had better take in to account the

relevancy, admissibility and weight of the evidence at hand.

 The prosecutor must make sure that
 All the evidence collected are relevant to prove the case .
 They are collected lawfully
 The weight of the evidence at hand to prove the case
Once such care are made, the public prosecutor can institute
the charge if convinced that conviction will be obtained.
Decision to prosecute
 The other option stated in Art. 38(A) & Art

40(1) is prosecuting the suspect when the

investigative report is sufficient to do so.
 In such a case Art 40 of The Cr. Pr. Requires

the public prosecutor to institute a criminal

charge before a court of law where none of the
grounds listed under Art. 42 exist.
 Investigation and the Initial Decision to Prosecute
 There are two major principles guiding the function of prosecution.
These are mandatory and discretionary principles of prosecution.
The former is a compulsory or mandatory approach to resort to
prosecution whenever there is adequate evidence to convict a
person. The public prosecutor lacks the discretion to drop cases on
the grounds of public interest. In the latter, the prosecution is
accorded wider autonomy in the decision to prosecute or not
considering public interest. The expediency of prosecution has to be
evaluated.
 The discretion of the prosecution has an impact over its role in the
determination of continuing or discontinuing a criminal case.
Once a charge is filed, the situation is different. The court has to
know at least the interruption. In some jurisdictions, the approval of
the court is sought. Others differentiate cases to be subjected to
limitation. As regards the role of the victim, many jurisdictions
allow the victim to have a say in terminating less grave offences
like misdemeanors.
 In Ethiopia, the decision to prosecute or not has now been left to the
public prosecution office. 42 Anyone aggrieved has to follow the
hierarchical channel till the general attorney, now head of the Ministry
of Justice and justice bureau heads at the federal and regional levels,
respectively. It appears that there is no judicial review. The possibility
for court intervention in the process is debatable. The CPC contains
provisions regulating the manner of deciding whether to charge or not.
 As the law stands, there is no law clearly empowering the public
prosecutor to drop charges. Art 122 of the CPC has been repealed by
Proclamation No. 39/93. Art 23/3 of Proclamation No. 471/2005
allows withdrawal based on a law. It implies that there is another law
defining the conditions necessary to terminate the prosecution. There
is up to now no law allowing that. But, this law permits automatic
interruption of a criminal investigation for due cause. Once a charge is
filed, it does not seem legal to drop charges. Art 16/2/b/2 of
Proclamation No. 587/2008 also contains similar provisions regarding
interruption of criminal investigation and charges pertaining to
revenues and customs related offences.
 The case of upon complaint cases is different.
It is the absolute right of the victim to decide
the fate of the case until a judgment is entered.
 To sum up, the public prosecutor has the key
role in the determination of case to be brought
to court or discontinued. But, the police and
courts have also some role. In our country, the
legal regime regulating prosecution and
interruption is found in the constitution, CPC
and many statutes. There is controversy over
the power to discontinue charges filed in court.
Discussion Questions
1. Is there a possibility in Ethiopia for a court to intervene in the
business of prosecution? Why or why not? Can there be review
by way of cassation on the final decision of a prosecution
authority in case there is a clear unreasonableness in its
decision?
2. Is there a legal ground for withdrawing a criminal charge in
Ethiopia at the federal and regional level?
3. Can the heir of a deceased person demand a court interruption
of a criminal case brought upon complaint the deceased?
4. Can a police close a criminal case brought upon complaint?
5. What is the effect of withdrawal of a charge? Can a public
prosecutor file the indictment later?
 The Preliminary Inquiry Article 80-93, CPC
 One of the essential events in the criminal justice process is the
preliminary hearing. It is the procedure for hearing evidence before
charge or trial. It has various functions such as filtering, discovery, basis
for future impeachment, and preservation of testimonial evidence. The
United States has a unique system of grand jury hearing for felony cases.
This jury is different from the jury that is going to see the merit of the
case during trial. The preliminary hearing is often used by the
prosecution. Defendants are reluctant to use it. It might be fear of the
exposition of their defence to the opposing side. But, the chance should
be granted for both sides.
 The CPC also recognizes this procedure. Its main purpose is preservation
of evidence. Other purposes can also be inferred from the provisions of
the law. The criminal bench entertaining a preliminary hearing cannot
have a say in deciding whether there is sufficient evidence against the
suspect. In fact, the primary responsibility of the court is notifying the
purpose of the preliminary hearing to the suspect at the earliest possible
opportunity before starting taking evidence. So, the preliminary hearing is
undertaken for various purposes. In our country, its functions are limited.
80. - Principle.
(I) Where any person is accused of an offence under Art. 522
(homicide in the first degree) or Art. 637 (aggravated
robbery) a preliminary inquiry shall be held under the
provisions of this Book: Provided that nothing in this
Article shall prevent the High Court from dispensing with
the holding of a preliminary inquiry where it is satisfied by
the public prosecutor that the trial can be held immediately.
(2) Where any person is accused of any other offence triable
only by the High Court no preliminary inquiry shall be
held unless the public prosecutor under Art. 38 (b) so
directs.
(3) The provisions of this Book shall not apply to offences
coming within the jurisdiction of the High Court which
have been committed by young persons.
This provision delimited the scope of preliminary inquiry in the criminal
process. Accordingly, preliminary inquiry is to be held mandatorily for two
specific offences:
I) first degree murder and aggravated robbery.533. Even for those offences
in respect of which preliminary inquiry is mandatory, where public
prosecutor shows the court that the trial will be held soon, the High Court
can dispense with such process.
II) The second category of offences in respect of which preliminary inquiry
may be held are those falling under the jurisdiction of the High Court
provided the public prosecutor requests preliminary inquiry be held by
virtue of Art 38 (b).
There is no indication on what grounds the public prosecutor could
require preliminary inquiry. However, having regard to the purpose of
preliminary inquiry, which can also be gathered from the readings of the
provisions of Arts 88 & 90, is preservation of the prosecution’s evidence.
Thus, it is justified to believe that the public prosecutor may request
preliminary inquiry be held where because of the time lapse between the
date of the completion of the investigation and the trial she believes there
is a possibility of evidence to be lost and witnesses might not be available
later or their memory might fade.
 In practice, such request is initiated by the
investigating police officer who, during
investigation, identified key witness with no a
fixed abode or regular employment or is not
resident of the area, and informs the public
prosecutor stating why such evidence has to be
recorded.