Article 35 of Criminal Code

1. ሰ/መ/ቁ 235233: ጥቅምት 26 ቀን 2016ዓ.ም

Theme of disputes

The central theme of the dispute concerns whether the Appellate Court committed a fundamental error of law by acquitting the respondent, who had been convicted by the High Court, regarding criminal charges stemming from his alleged participation in collective crimes of organized and incited movement, riots, and attempted aggravated homicide. The charges relate to acts of violence, property destruction, and displacement that occurred in the Burayu area surrounding Finfinne (Addis Ababa) in September 2018 (Meskerem 2011 E.C.). The applicant (Federal Attorney General) argues that the acquittal was based on a flawed assessment of evidence and a fundamental legal error, particularly concerning the burden of proof in collective crimes.

Undisputed facts

A significant incident involving violence and unrest occurred in the Oromia Region, Finfinne surrounding Burayu town, Woreda 01, Woreda 02, and Woreda 03, between 02-06/01/2011 E.C.. This unrest was initiated by unverified rumors following the planned reception ceremony in Meskel Square for high-level Oromo Liberation Front (OLF) leaders on 05/01/2011 E.C.. The rumors claimed Oromo nationals were prevented from entering Addis Ababa, hoisting their flag, or applying their symbols, and falsely alleged that Gamo/Dorze nationals were responsible for killing Oromo children and mutilating Oromo women. The resulting unrest involved individuals carrying deadly weapons such as machetes, pistols, knives, sticks, iron bars, and stones. The violence led to the deaths of 37 people, numerous severe and minor injuries, the displacement of over 4506 residents, and the destruction of property valued at approximately 17,538,744 Birr. Specifically, during the incident, the private complainant, Tamrat Terzo Walke (a Gamo national), was beaten and left for dead. The property, including Finet Grocery owned by Ato Gizachew Assefa and W/ro Zuriyash Work Degefa, was destroyed. The respondent was present at the scene of the incident during the violence.

Legal issues identified by the Cassation bench:The main legal issues the Cassation Bench set out to examine were:

1. Whether the Appellate Court’s decision to acquit the respondent by overturning the High Court’s conviction involved a fundamental legal error correctable at the Cassation level.

2. Whether the Appellate Court, in reaching its decision, properly applied the rules governing the burden of proof for the prosecutor and the respondent concerning the alleged crimes, especially in light of the specific provisions of the Criminal Code.

3. Whether the Appellate Court adhered to the principles of evidence appraisal in determining the facts of the case.

Fundamental legal errors lower courts committed in their decisions.

The primary focus of the applicant's appeal and the Cassation Court's scrutiny was the alleged fundamental legal error committed by the Appellate Court in its evidence appraisal and application of the burden of proof:

• Failure to Properly Apply the Burden of Proof for Collective Crimes (Criminal Code Art. 35(2)): The Cassation court noted that the Appellate Court's decision suggested the prosecutor (applicant) failed to prove the respondent committed the crime. However, for crimes like riot, gathering, or civil unrest, which fall under Criminal Code Article 35, Paragraph 2, the prosecutor's responsibility is limited to proving the accused was present within the collective movement at the time and place of the offense. If presence is proven, the burden shifts to the accused to prove they were not a participant or did not intend to commit the crime. The Appellate Court was therefore scrutinized for potentially failing to examine the case in light of this burden-shifting rule.

• Improper Evidence Appraisal (Alleged): The applicant argued that the Appellate Court committed a fundamental error in evidence appraisal by drawing a conclusion (acquittal) that was inconsistent with the evidence presented by the prosecutor's witnesses, or by selecting parts of testimony outside its full context. The applicant specifically pointed out the Appellate Court's finding that the respondent lacked the authority to order police to beat the victim, arguing that criminal liability exists for ordering or facilitating violence, regardless of official authority.

Key legal reasoning of the Cassation bench

The Cassation Bench's reasoning centered on the scope of its jurisdiction and the interpretation of criminal participation in collective crimes:

• Scope of Cassation Review: The Cassation court reaffirmed that its mandate is to correct fundamental errors of law, not to reassess and re-weigh facts or evidence presented to trial and appellate courts, unless the lower courts violate fundamental principles of evidence presentation, admissibility, burden of proof, or fail to connect established facts to the relevant legal provisions.

• Principle of Participation in Collective Crimes (Charge 1): In collective crimes such as riots or ambaguaro (riot/uproar), the prosecutor meets the burden of proof by establishing the accused's mere presence in the collective during the time and place of the crime, according to Criminal Code Article 35, Paragraph 2. The High Court had followed this rule when it ordered the respondent to present a defense (since the prosecutor established presence).

• Affirmation of Appellate Court's Factual Finding: While the prosecutor met the initial burden of proving the respondent’s presence in the riot, the burden shifted to the respondent to prove non-participation. The Appellate Court, possessing the power of evidence weighing, determined that the respondent successfully demonstrated, through his defense, that he was not a participant in the harmful acts, such as the attempted homicide of Tamrat Terzo Walke or the property destruction. The Cassation Bench found that the Appellate Court's weighing and conclusion—that the respondent was not a participant in the destructive actions, either as a principal (first or second degree) or as a conceptual participant—did not constitute a fundamental legal error requiring reversal.

• Attempted Homicide (Charge 2): For the attempted homicide charge, the Appellate Court found that the victim (Tamrat Terzo) testified that he was beaten by police officers wearing special force uniforms, and he did not know whether the respondent was present. This contradicted the prosecutor's witness who claimed the respondent stood by while police beat the victim. The Appellate Court concluded the prosecutor failed to prove the respondent committed the attempted homicide or had the authority to order police to beat the victim. The Cassation Bench accepted that the Appellate Court’s finding that the respondent was not directly or indirectly involved in the attempted homicide (as required for principal criminality under Article 32(1/a)) was a legitimate factual determination based on evidence appraisal, and thus found no correctable fundamental legal error.

• Precedent: The Cassation Bench also noted that a similar appeal involving co-defendants in the same case (ሰ/መ/ቁ 228017) had also resulted in an acquittal being affirmed.

The Cassation Bench ultimately affirmed the Appellate Court’s decision to acquit the respondent.