Retrial of Persons Tried in Foreign Courts and Applicability of the Constitutional Principle of Prohibition of Double Jeopardy: A Reference to Ethiopia
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Date
2019-01
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Addis Ababa University
Abstract
The prohibition of double jeopardy is among the human rights that granted by the FDRE constitution under article 23. This constitutional right gives protection to the individual from successive trial and punishment that may have effects of ordeal and tribulations up on the individuals who are subject of the repeated proceeding. On the other hand the Revised Criminal Code of FDRE under article 16 states that, an individual who has been tried and sentence in a foreign country may be tried and sentenced again on the same charge in Ethiopia, if he is found in Ethiopia or was extradited to it. A person who read these two provisions may question inter alia what is the scope of the constitutional right of prohibition of double jeopardy? Can the Ethiopian court try and sentence again a person who has been tried and sentenced in foreign country without violating the constitutional principle of prohibition of double jeopardy? If the answer is affirmative what is the justification behind?
Even though, it is not clear form the constitution itself as to the scope of double jeopardy, but when we interpret it in line the international instrument to which Ethiopia is a parity particularly article 14(7) of the ICCPR, since this provision limit the scope of the protection within a single country by stating “….finally convicted or acquitted in accordance with the law and penal procedure of each country” and the quasi-judicial Human Rights Committee, whose job is to interpret and implement the Convention, states article 14, paragraph 7, of the Covenant does not guarantee non bis in indem with regard to the national jurisdictions of two or more States. From this we can conclude that the prohibition of double jeopardy that granted by the constitution should construe restrictively and its scope is limited only to a person adjudicated by Ethiopia courts.
In other word in principle a person will not get guarantee against double jeopardy in Ethiopia even if he has been prosecuted in a foreign court for the same crime. Accordingly, where a criminal who is subject to Ethiopia's principal jurisdiction was tried and sentenced by foreign court the Ethiopian criminal justice system follows the principle of ne bis poena in idem (i.e. retrying and sentencing the person with deducting the punishment that has been already undergone in the foreign country from the new sentence to be passed). This principle has dual benefit one reserving the Ethiopian interest to punish persons who act is against its vital interest irrespective of their punishment in foreign country. On the other hand it has effect on human right value by minimizing the dangers that come due to repeated proceeding of an individual. This makes Ethiopian criminal justice system goes in line the Jurisdictional Theory that developed by Professor Anthony J Colengelo for the “Double Jeopardy and Multiple Sovereigns”
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Law