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 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?
The issue is important due to its contribution to ensure the protection of human rights that
granted under the Constitution particularly defendants right. Here the problem is, despite the
Constitutional prohibition of double jeopardy the criminal code permits as to the double trial
and punishment of foreign tried person for the same crime. Therefore, the purpose of it is
important to scrutinize the scope of prohibition of double jeopardy in the Ethiopian
constitution in order to determine whether the criminal provision is Constitutional or not.
Doctrinal and qualitative methodology is employed to conduct this research. Besides
analysing national and international legal rules and court decisions different scholars and
legal systems are examined their position in relation to this issue. A jurisdictional theory that
developed in relation to the rule of double jeopardy in relation to the multiple sovereigns is
applied.
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 party
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 idem 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 whose 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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Keywords
Retrial, of Persons tried, in Foreign, Courts, and Applicability