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14 July, 2007
Sentencing due on Monday 16 July, 2007
The Federal High Court is expected to pass a sentence next Monday against the jailed CUD leaders and other defendants whom it convicted of, among others, the crimes of outrage against the constitution and obstruction of the exercise of constitutional powers on a ruling it passed on June 11.
Following the court's order that both the defendants and the prosecutor submit a submission on sentencing, the prosecutor did so this Monday. Some of the defendants submitted their submission on Wednesday. An unofficial translation of the prosecutor's submission on sentencing shows below.
Federal High Court
Second Criminal Bench
Addis Ababa
F/H/C/F/No. 43246
F/P/C/F/No. 00860
F/P/C/I/F/No. 186/98
Re: Prosecutor's submission on sentencing as per Article 149(3) of the Criminal
Procedure Code and articles 84/183 (General Aggravating Circumstances), Articles
85/184 (Aggravation of Penalty in Case of Concurrent Crimes) and Article 258
(Special Aggravating Circumstance) of the Criminal Code of 2004
The following is a submission on sentencing pursuant to the [court's] order following the conviction of 5 of the accused who were tried in absentia and pronounced guilty during a ruling given from April 30 onwards to May 9, 2007 as well as 41 of the accused who were tried in person and [also] pronounced guilty on June 11, 2007 in the case of The Prosecutor vs Ato Hailu Shawel et al having regard to the provisions of the criminal code on the basis of which they were found guilty.
1) The provisions of the criminal code on the basis of which the accused were found guilty
The [court's] file shows that after the court gave a ruling for the accused to defend only four of the crimes the prosecutor charged them with, it found them guilty, according to the law, when they failed to submit defense evidence, despite repeated adjournments, on the basis of the following provisions of the Criminal Code:
1.1 Under the first charge, articles 32(1) (a) (b), 38, 34, 27(1) and 238(1)
as well as 258 of the Criminal Code of 2004;
1.2. Under the second charge, articles 32(1) (a) (b), 38, 27(1) and 239 of
the Criminal Code of 2004;
1.3. Under the third charge, articles 32(1) (a) (b), 38 and 240 (1) (a) of
the Criminal Code of 2004;
1.4. Under the fifth charge, articles 32 (1) (a) (b), 27, 38, 34, 247 (a)
(c) and 258;
1.5. For some of the accused, under articles 32 (1) (a) (b), 46 and 257 (a)
as well as 486 (a) of the Criminal Code of 2004 by substituting them, according
to Article 113 (2) of the Criminal Procedure Code, in lieu of the provisions
of the Criminal Code they were indicted with under the first charge.
2) The punishments prescribed by the provisions of the Criminal Code on the basis of which the accused were found guilty.
2.1. In respect of the first charge, life imprisonment or death;
2.2. In respect of the second charge, rigorous imprisonment not exceeding
15 years;
2.3 In respect of the third charge, rigorous imprisonment from 10 to 25 years;
2.4. In respect of the fifth charge, rigorous imprisonment from 5 to 25 years,
or in cases of exceptional gravity, such as in time of war or danger of war,
life imprisonment or death;
2.5. In respect of articles 257 and 486 of the Criminal Code of 2004, under which pronouncements of guilt were passed after they were substituted in lieu of the provisions of the prosecutor's first charge, simple imprisonment or, where the foreseeable consequences of the criminal's activities are particularly grave, rigorous imprisonment not exceeding 10 years (Art. 257) or 3 years (Art. 486);
2.6. Having regard to, in respect of the first and fifth charges, the verdict of guilty also pronounced under Article 258 of the Criminal Code of 2004 which entails the alternative punishments of rigorous imprisonment for life or death, the death sentence should be passed as the same article provides that this sentence be handed where the manner of the commission of the crimes contained in the prosecutor's charges, as proven by the prosecutor and on the basis of which the pronouncement of guilt was passed, fulfill the elements of "a" to "d" thereof;
2.7. In respect of the press publishers convicted under the provisions of the Criminal Code cited in the first charge, the punishment of a fine up to Birr 500,000 (Five Hundred Thousand Birr) as well as the additional penalty of suspending, closing or winding up the publishing organization.
3) The charges under which the accused were convicted.
The [court's] decision indicates that the accused who were convicted on the charges brought against them are the following:
A. Under the first, second, third and fifth (4) concurrent
charges
1) The 1st defendant Ato Hailu Shawel
2) The 2nd defendant Ato Abayneh Berhanu
3) The 3rd defendant Major Getachew Mengistie
B. Under the first, second and fifth (3) concurrent charges
4) The 4th defendant Ato Gizachew Shiferaw
5) The 5th defendant Dr. Hailu Araya
6) The 6th defendant Ato Muluneh Eyoel
7) The 7th defendant Ato Sileshi Tenna
8) The 8th defendant Dr. Berhanu Nega
9) The 9th defendant Dr. Befekadu Degifie
10) The 11th defendant Dr. Yacob H/Mariam
11) The 12th defendant W/rt Birtukan Mideksa
12) The 13th defendant Ato Aschalew Ketema
13) The 14th defendant Dr. Tadeos Bogale
14) The 15th defendant Ato G/Tsadik H/Mariam
15) The 16th defendant Ato Assefa H/Wold
16) The 17th defendant Ato Bruck Kebede
17) The 18th defendant Ato Mesfin Aman /in absentia/
18) The 19th defendant Ato Tamirat Tarekegn
19) The 20th defendant Ato Andualem Aragie
20) The 21st defendant W/ro Nigist G/Hiwot
21) The 22nd defendant Ato Debebe Eshetu
22) The 23rd defendant Ato Yeneneh Mulatu
C. Under the first and third (2) concurrent charges
23) The 24th defendant Ato Mamushet Amare
24) The 87th defendant Ato Mesfin Tesfaye
25) The 122nd defendant Ato Tesfaye Tariku
D. Under the first charge only
26) The 10th defendant Professor Mesfin W/Mariam
27) The 33rd defendant Ato Anteneh Mulugeta
28) The 34th defendant Ato Melaku Fantaye
29) The 40th defendant Ato Andargachew Tsigie /in absentia/
30) The 51st defendant Ato Elias Kifle /in absentia/
31) The 73rd defendant Sisay Publishing and Advertisement
32) The 75th defendant Ato Andualem Ayele
33) The 76th defendant Serkalem Publishing
34) The 79th defendant Ato Zelalem Gebrie /in absentia/
35) The 85th defendant Ato Abiy Gizaw /in absentia/
36) The 96th defendant Ato Mesfin Debessa
37) The 97th defendant Ato Berhanu Alemayehu /[aka] China/
38) The 98th defendant Ato Wudineh Jedie
39) The 112th defendant Ato Melaku Uncha
40) The 113th defendant Ato Abiyot Wakjira
41) The 117th defendant Ato Daniel Berihun
42) The 123rd defendant Ato Waltanegus Asnake
43) The 124th defendant Ato Mulu Gashu
E. Under the amended first charge
44) The 70th defendant Fassil Publishing and Advertisement
45) The 82nd defendant Ato Dawit Fassil
4. Prosecutor's submission on sentencing as per articles 84/183, 85/184, and 258 of the Criminal Code of 2004.
4.1. Whereas the criminal act for which the accused were convicted under
the first charge:
A. Is a commission of the grave crime of attempting to overthrow
the constitution, the bastion of the public and the government, and the constitutional
order in acceptance of the consequences of the ensuing disturbance for national
and public security;
B. Is a commission of a grave crime where the unlawful call for and perpetration of rebellion caused the loss of life as well as bodily harm to several peaceful citizens and law enforcement personnel;
C. Could have entailed considerable danger had it not been averted through the government's discharge of its duty to uphold the law as well as the sacrifice paid in life and bodily harm;
D. Could have entailed greater damage than it caused to public and government property had it not been averted;
E. Entailed a serious crisis against public security and life;
F. Was committed at a time when following the government's ban, imposed for a limited time, on holding public gathering and rally in the wake of the [May 2005] elections with a view to forestall the intended unlawful rebellion was in force and there was a threat of war;
G. Was committed deliberately through a conspiracy and an agreement to conspire, by way of arms and terror;
H. Entails the death sentence pursuant to the aggravating circumstances mentioned above as well as Article 258 of the criminal code of 2004 under which they were convicted;
passage of the aggravated sentence of death against all of the 1st-43rd accused but with the exception of the 73rd and 76th accused organizations in accordance with articles 84(1) (c) (d) and 183 as well as 183 and the provisions of the Criminal Code on the basis of which they were pronounced guilty under the first charge.
I. Similarly, as the conviction of the 76th accused organization,
Serkalem Publishing, under articles 257 (a) and 486 (a) of the Criminal Code
of 2004 in addition to the first charge entails aggravation of sentence pursuant
to articles 85/184 of the Criminal Code of 2004 and the 73rd accused organization
was convicted of the grave crime it was charged with under the first charge;
punishment with the highest fine and the additional penalty of closing them
as prescribed by articles 34 (1) (2) and 90 (3) (4).
4.2. Without prejudice to the submission indicated in 4.1 on aggravating the sentence as regards all the convicts charged in the first charge, since the concurrent conviction of the accused listed under 1 to 25 in respect of the second, third and fifth charges in addition to the first charge for committing grave crimes entails the death penalty, and in particular their conviction on the basis of the aggravating Article 258 makes it mandatory to aggravate the sentence to the maximum in accordance with articles 85 and 184 of the Criminal Code of 2004, this should be considered as a reason justifying the death sentence proposed under 4.1.
4.3. Although it is within the court's power to amend the prosecutor's first charge in respect of defendants 44 to 46 and convict them pursuant to the alternative articles 257 (a) and 486 (a) of the Criminal Code, as they have equal participation and assume equal responsibility having regard to the crime committed and the consequences thereof, we ask the aggravating reasons enumerated in 4.1 to be applicable to them and the passage of the maximum sentence the provions under which they were convicted carry.
5. Concluding proposal regarding submission on sentencing.
We request for the following sentence to be passed:
5.1. Given that in addition to the severe punishment the provisions of the
law under which the accused were found charged by the prosecutor and found
guilty thereof entail both individually and concurrently, the way they conducted
themselves before the court from the date the charge was brought until they
were convicted does neither show that they accept the rule of law nor does
it manifest a repentance for their acts that may mitigate, their punishment,
as per Article 79 [sic] of the Criminal Code, the punishment against all of
them should be aggravated and they should be handed the maximum sentence the
provisions of the law under which they were convicted carry;
5.2. Pursuant to the stipulations of Article 124 (2) of the Criminal Code of 2004 that a sentence of death or of rigorous imprisonment carries with it the deprivation of all civil rights, and having regard to the accused' criminal motive and the manner of the commission of the crime, an order depriving their civil rights as provided for in Article 123(a) (b) and (c) should be given in accordance with articles 123 and 124.