Proclamation No. 236/2001 Anti-Corruption Special Procedure and Rules of Evidence Proclamation | GOALGOOLE | Because you need Information for your goals !
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Proclamation No. 236/2001 Anti-Corruption Special Procedure and Rules of Evidence Proclamation

PROCLAMATION NO. 236/2001
A PROCLAMATION TO PROVIDE FOR SPECIAL
PROCEDURE AND RULES OF EVIDENCE ON
ANTI-CORRUPTION

WHEREAS, it has become necessary to provide for relevant matters in law that would make the disclosure and investigation of corruption offences and institution of criminal proceeding of such offences, effective;
WHEREAS, it has been found necessary to regulate a system under which a property acquired through a criminal offence could be restrained, administered and confiscated;

WHEREAS, it has become necessary to provide for the rules of evidence compatible with offences relating to corruption;
NOW, THEREFORE, in accordance with Article 55(1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows:

Section One

General

1. Short Title

This Proclamation may be cited as the “Anti-Corruption Special Procedure and Rules of Evidence Proclamation No. 236/2001”.

2. Definitions

In this Proclamation:

1)    “Corruption offence” means any offence committed  in relation to a government or public service or public interest in violation of the duties proper to a government or a public service by seeking, exacting promise, or receiving any gratification or advantage for himself or for other person or group of persons, or inflicting harm on another person, and includes corrupt practices, acceptance of undue advantage, traffic in official influence, abuse of power, maladministration; appropriation and misappropriation in discharge of duties, extortion and disclosure of secret, and shall include such other similar cases;

2)    “Property acquired by the commission of corruption offence” means any property which the offender owns or possesses directly or indirectly as a result of the commission of the offence, and includes any such property or money which has been donated directly or indirectly by the offender, put under someone’s custody or hidden somewhere;

3)    “Appropriate organ” means an organ which is empowered to investigate corruption offences;

4)    “Restraining order” means an order which prohibits the offender from dealing with certain property and includes the right to transfer, use and destroy the property in any manner;

5)    “Investigator” means a police who is empowered to investigate crime in accordance with the Criminal Procedure Code or any organ which is empowered by law to investigate crime;

6)    “Person” means any natural or juridical person.

Section Two

Restraining

3. Principle

1) Without prejudice to Article 4 of this Proclamation, a court may issue a restraining order against any property acquired by the commission of corruption offence.

2) An investigator or a prosecutor may, supported by an affidavit, apply to the court of a restraining order against any property acquired by the commission of corruption offence.

3) An application for a restraining order may be made before or after the institution of a criminal proceeding.

4. Property not Subjected to Restraining Order

Properties that are necessary fro the accused to earn his livelihood shall not be subjected to restraining order. It shall, in particular, include the following:

1)    the necessary wearing-apparel, cooking vessels, bed and bedding of the accused and his family;

2)    such amount of food necessary for the accused and his family.

5. Contents of the Application

An application for a restraining order shall contain:

1)    the facts of the case and the measures that have been taken; where a criminal proceeding has not been instituted, an information about the status of the cases;

2)    tangible information which shows that the property against which a restraining order is requested is acquired by the commission of corruption offence;

3)    detail description of the properties and their location.

6. Contents of the Affidavit

1) An affidavit to be submitted in accordance with Sub-Article (2) of Article 3 of this Proclamation shall contain:

(a)  the reasons for the request;

(b) the property against which a restraining order is to be issued, and the person who possesses the property.

2)  Unless the court decides otherwise, an affidavit submitted in accordance with Sub-Article (1) of this Article shall contain the sources of the information which support the reasons for the request.

3)  any application which supports the request for a restraining order shall be stated in detail in the affidavit in a complete and precise manner.

4) Where the situation requires the issuance of an additional restraining order, the investigator or the prosecutor may apply to the court.

7. Duty to Notify

1) The court may order a third party to hand over to the investigator or to the prosecutor any evidence under his possession or to allow access to inspect same.

2)  The person who has been ordered to hand over, or give access to the evidence in accordance with Sub-Article (1) of this Article shall be notified to appear before the court when the case is heard.

8. Issuing of Restraining Order

1) Without prejudice to Article 4 of this Proclamation; the court may, after having examined the application and the document, issue a restraining order where it is convinced of issuing such order.

2)  Where a restraining order is issued ex parte, the prosecutor shall serve copies of the order and the affidavit on the defendant or on any other person specified in the order. He shall also notify any person affected by the order.

3) Unless the court decides otherwise, a restraining order issued ex parte shall be effective.

9.  Appointment of Receiver

With respect to the custody of the property against which a restraining order is issued, the provisions of Articles 13-15 of this Proclamation shall apply.

10. Termination of Restraining Order

A restraining order may be terminated on the following grounds:

1) where the court decides against confiscation;

2) where a confiscation order is issued;

3) where the case is withdrawn or the defendant is acquitted or is not found guilty.

11. Withdrawal or Amendment of a Restraining Order

1) Any person who has been served or notified about the restraint order may apply to the court for withdrawal or amendment of the order.

2) Where the court accepts the application and the evidence submitted in accordance with Sub-Article (1) of this Article, it shall serve same on the prosecutor.

3) Where the court believes that the application for the withdrawal or amendment is based on reasonable grounds, it may

amend or allow the withdrawal of the order.

Sub-Section One

Appointment of Receivers

12.  Condition for Appointment of Receiver

1) When it appears t the court to be just and convenient, the court may, with respect to the property on which a restraining order is issued, order:

(a) appoint a receiver of the property;

(b) remove any person from the possession or custody of the property;

(c) commit the same to the possession, custody or management of the receiver;

(d) confer upon the receiver the power for preservation, management and improvement of the property.

2) The court may confer upon the receiver all such powers, as to bringing and defending suits, and for the collection of the rents, profits and any other income thereof, the investment and disposal of such rents, profits, or income, for useful purposes, or such other powers as the court thinks fit.

3) Upon issuing an order in accordance with Sub-Article (1) and (2) of this Article, the court shall have regard to the amount of the probable costs of his appointment and may, before making the appointment, direct such inquiries on these or other matters to be made as it thinks fit.

4) If the person to be appointed as a receiver pursuant to Sub-Article (1) (a) of this Article is a natural person, such person shall be of good character, with integrity and who has no bond of relationship by consanguinity or affinity or conflict of interest.

13.  Remuneration of the Receiver

The court may, by general or special order, fix the amount to be paid as remuneration for the services of the receiver.

14. Duties of the Receiver

Any receiver appointed under Article 12 shall have the following duties:

1)    furnish such security to account for what he shall receive in respect of the property;

2)    submit his accounts as such periods and in such form as the court directs;

3)    pay the amount due from him as the court directs; and

4)    be responsible for any loss occasioned to the property by his gross negligence or willful default.

15. Enforcement of Receiver’s Duties

1) Where a receiver causes damage to or loss of the property by his gross negligence or intentionally. The court may order him to pay the amount due.

2)  If the receiver fails to observe the order of the court, the court may direct his property to be attached and sold and may apply the proceeds to make good any amount found to be due from him or any loss occasioned by him, and shall pay balance, if any, to the receiver.

Sub-Section Two

Affixing of Seals and Making of

Inventories

16. Principle

1) Where it is necessary to affix seals on the property on which a restraint order is issued, the following provisions of this Sub-section shall apply.

2) Unless the court decides otherwise, no person may remove or open the seal. Any interested person may apply for the removal of the seal.

17. Application for Affixing of Seals

1) An application for affixing of seals may be made to the court by the prosecuter upon satisfying the court by affidavit or otherwise that the property should be preserved.

2) An order for the affixing of seals may be made at any stage of the proceedings by the court of its own motion or on application.

3) On making an order for the affixing of seals, the court shall appoint such person (hereinafter referred to as the “official sealer”) as it thinks fit to carry out such order.

18. Record

1) The official sealer after having affixed seals in accordance with the order of the court,  shall prepare a dated and signed record showing:

(a) the order of the court and the date thereof;

(b) a list of the property to which seals have been affixed and the place where such property is to be found;

(c)  a list of the articles to be sealed which cannot be found; and

(d) the name and address of the caretaker, if any, in charge of the premises where the sealing has taken place.

2) The official sealer shall hand over to the registrar of the court all the keys of the locks he has sealed.

19. No Seals to be Affixed on Certain Property

1) No seals shall be affixed to the following property:

(a) perishable goods;

(b) any property to which the affixing of seals might cause deterioration;

(c) any property required fro the use of a party to the suit specifically exempted from sealing by the court.

2) Details of property on which the court has ordered not to affix a seal, in accordance with Sub-Article (1) (c) hereof, shall be submitted to the court by the sealer.

3) The court may order goods indicated in Sub-Article (1) (a) to be sold by auction and have it deposited.

20. Wills and Other Documents

1) Where the official sealer finds Wills, sealed papers or other documents, he shall make a list of such papers and shall place them in a sealed bundle and forward such list to the court for instructions.

2) The court shall make such order for the custody of such documents as it thinks fit.

21. Removal of Seals

1) Where an application for the removal of seals is made or where the court finds it necessary to remove such seals, all interested parties shall be informed of the day when the order will be made; and if they appear, they may be hard.

2) When an order for the removal of seals has been made by the court, the official sealer shall remove the seals and shall make a dated and signed report to the court giving particulars of all property which he has unsealed.

22. Making of Inventory

1) The court may, where it thinks necessary to prepare an inventory of property, appoint a person (hereinafter referred to as the “official recorder”) to carry out the inventory and submit record.

2) The official recorder shall, in the presence of not less than two independent witnesses, prepare an inventory of the property specified in the order of the court, containing:

(a) a reference to the order of the court; and

(b) an accurate description of each article entered in the inventory and the estimated value thereof.

3) Where the court so orders, the estimation of value shall be mad by an expert, appointed under Article 136 of the Civil Procedure Code, whose report, dated and signed, shall be attached as an annex to the official recorder’s report.

4) The report of the official recorder, dated and signed, shall be forwarded to the court and, after being registered by the registrar of the court in a special inventory register, shall form part of the record of the case.

Section Three

Confiscation procedure

23. Application for Confiscation of property

1) Confiscation of property acquired by the commission of corruption offence may be entertained by the application of the prosecutor.

2)  An application for confiscation of property may be made after conviction.

24. Standard of Proof

The standard of proof required to determine any question arising as to whether a person has benefited from criminal conduct, or the amount to be recovered shall be that applicable in civil proceedings.

25. Submission of Evidence to the Court

1) If an application for confiscation made in accordance with Article 23 is accepted, the prosecutor shall, within a period determined by the court, submit evidence which shows that the defendant or any other third party has benefited from the criminal conduct and the assessment of the value of such benefit.

2) If the court is not satisfied with the evidence submitted under Sub-Article (1) of this Article, it may order the prosecutor to provide additional evidence.

26. Acceptance by the Defendant

Any evidence submitted to the Court in accordance with Sub-Article (1) of Article 25 and which has been accepted, or which has not been denied by the defendant, may be taken by the Court as conclusive of the matters to which it relates.

27. Provision of Information by the Defendant

If the court finds it necessary for determining the case, it can order the defendant to give such information as required and specify the manner and the period in which the information is given.

28. Property or Benefit to be Recovered

1) The defendant shall return the property aquired by the commission of the crime and the benefit derived from the property acquired by the commission of the crime.

2) The amount of benefit which the court orders the defendant to return shall not exceed the benefit or the amount that might be realized.

29. Postponement of Confiscation

1) Where the court considers that it requires additional information to determine whether the defendant has benefited from any criminal conduct or the amount to be recovered, it may postpone the determination for a period not exceeding six months from the date of conviction.

2)  A postponement may be made in accordance with Sub-Article (1) of this Article on application by the prosecutor or by the court of its own motion.

Section Four

Preparatory Hearing

30. Principle

A preparatory hearing shall be held by the court which hears the case before the corruption case is submitted for trial.

31. Purpose and proceedings of Preparatory Hearing

1) The purposes of the preparatory hearing are the following:

(b) to assist the parties in comprehending the issues;

(c) to facilitate the proceedings;

(d) to assist the court in the management of the trial.

2) In the proceeding of a preparatory hearing, the court shall make ruling with respect to:

(a) any question as to the admissibility of evidence;

(b) any question of law which is found necessary to give ruling before the trial starts.

32. Obligation of the Prosecutor

The court may order the prosecutor:

1)    to give the court and the accused a written statement of the matters falling under Article 33 of this Proclamation;

2)    to prepare the prosecution evidence and any explanatory material in such a from as appears to the court to be likely to assist the proceeding and submit same to the court and the accused;

3)    to give to the court and the accused a written notice of documents the truth of the contents of which ought in the  prosecutor’ view to be admitted and of any other matters which in his view ought to be agreed;

4)    to make any amendments of any written statement given pursuant to Sub-Article (1) of this Article that appear to be appropriate having regard to objections made by the accused.

33. Written Statement of the Prosecutor

The written statement to be submitted in accordance with Sub-Article (1) of Article 32 shall contain the following:

1)    the principal facts of the case for the prosecution;

2)    the witness who will speak to those facts;

3)    any exhibits and documentary evidence relevant to those facts;

4)    any provision of the law on which the prosecutor propose to rely;

5)    any matter falling within proceeding Sub-Articles or that appear to the prosecutor to flow from same.

34. Obligation of the Accused

Where the prosecutor has complied with the order of the court, the court may order the accused:

1)    to give the court and the prosecutor a written statement setting out in general terms the nature of his defence and indicating the principal matters on which he takes issues with prosecution;

2)    to give to the court and the prosecutor a written notice of any objections that he has to the case statement;

3)    to give the court and the prosecutor a written notice of any point of law and the admissibility of evidence which he relies on;

4)    to give to the court and the prosecutor a written notice stating the extent to which he agrees with the prosecutor relating to documents and other matters referred to in Sub Article (3) of Article 32.

35. Appeal

No appeal shall lie against the decision made in accordance with Article 31(2) of this Proclamation.

36. Request for Information

1) An investigator or a prosecutor may apply to the court to obtain or gain access to relevant material in order to establish whether the suspect has benefited from criminal conduct or to get information regarding the amount of benefit, or its where about.

2) If the court is satisfied, it may, without requiring the appearance of the suspect or the person concerned, order the person who is in possession or who appears to be in possession of the material, to product it to an investigator or prosecutor or give access to same within the period determined by it.

37. Shifting of Burden of proof

1) With respect to offence of corruption, the burden of proof may shift from the prosecutor to the defendant if the prosecutor can show that:

(a) the service is a government or a public service;

(b) there is a ground which indicates a gratification has been sought, exacted a promise of, or received by the accused; and

(c) the person who has sought or exacted a promise of, or received gratification has a working relationship with the corrupter;

2) Notwithstanding the provision of Sub-Article (1) of this Article, if the prosecutor can show that the service is a government or a public service and the defendant has lived, or has accumulated wealth, beyond his legal means of income, the burden of proof may shift from the prosecutor to the accused.

3) The defendant may rebut the presumptions provided for in Sub-articles (1) and (2) of this Article.

4) The property specified in Sub-Article (2) of this Article shall be deemed to have been owned or possessed by the accused irrespective of its transfer to a third party.

38. Effect of Silence in the Proceeding

1) Where a person who is accused of corruption and whose:

(a) guilt is not already established;

(b) physical and mental condition has not rendered him incapable of testifying;
Prefers to remain silent or unwilling to answer without good cause after the prosecution witness is heard, the court may take his silence as an admission.

2) The silence or refusal of the accused pursuant to Sub-Article (1) of this Article may be taken as good cause if it is based on:

(a) legal privilege; or

(b) permission of the court.

39. Immunity from Prosecution

1) Any person who has been involved in corruption offence and who, before the case is taken to the court, provide substantial information as to the offence and the role of his partners, may be given immunity by the Commissioner of the Federal Ethics and Anti-Corruption Commission or the Head of any simlar organ of the Region. He shall, however be made to return the property obtained by the commission of the offence and the proceeds thereof.

2) The testimony of the person who has been given immunity from prosecution shall have equal weight as the testimony of ordinary witness.

40.  Hostile Witness

1) The court may allow the party  who called the witness to cross examine a prosecution or defence witness who, being unwilling to tell he truth, has given a statement contradictory from his previous statement.

2) The court shall, before allowing cross-examination, ask the witness whether he has given contradictory statement or not. If he admits, the cross examination shall be allowed.

3) If the witness denies making a contradictory statement, the court shall give its ruling.

41. Document produced by a Computer
A statement in a document produced by a computer shall be admissible as evidence of any fact stated if it is shown:

1) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer; and

2) that at all material times, the computer was operating properly, or if not, any part of the computer was not operating properly, or was out of operation, was not such as to affect the production of the document or the accuracy of its contents.

42. Interception of Correspondence and Letters

1) Where it is necessary for the investigation of corruption offence, the court may order the interception of correspondence by telephone, telecommunications and electronic devices as well as by postal letters. The decision of the court shall be final.

2) An order given accordance with Sub-Article (1) of this Article shall indicate the offence which gives rise to the interception, and the duration of the interception, and, if it is a telephone or telecommunication, the link to be intercepted. Unless the court decides otherwise, the duration of the interception may not exceed four months.

43. Recording

1) The organ which implements the order for recording of correspondence shall draft an official record of each interception and the time the recording operation takes.

2) The organ to which the order is given shall transcribe and present to the court the correspondence which is useful for the discovery of the truth. If the correspondence is in a language different from the language of the court, it shall be translated into the language of the court and submitted with the original.
Section Six
Protection of Whistle-Blowers

44. Objectives

The objectives of the protection are:

1)    to encourage the disclosure of corruption offences;

2)    to give appropriate consideration to the rights and interests of the person against whom a disclosure is made.

45. Making of Disclosure

1) A disclosure of corruption offence may be made with or without the name of the person who makes the disclosure.

2) If a disclosure is properly made to the appropriate organ, the disclosure shall be deemed to have been received by such organ.

46. Exemption from Libility

Any person who has an obligation to maintain confidentiality under a law, oath or an agreement, the disclosure of such information to the appropriate organ shall not be considered as a violation of law, oath or agreement.

47. Organ Receiving Information

1) The appropriate organ has an obligation to receive any disclosure made by any person about corruption offence.

2) The appropriate organ to which the disclosure is made shall keep record about it.

3) The appropriate organ shall, with respect to the disclosure, have the responsibility:

(a) to submit report to the organ to which it is accountable;

(b) to give the necessary information to the person who made the disclosure.

4)  No information may be given in accordance with Sub-Article (3) (b) of this Article, if the information would be likely to adversely affect any body’s safety or the investigation of an offence.

48. Particulars to be Entered in the Record

The appropriate organ shall, with respect to disclosure received by it, keep a record which includes the following particulars:

1)    the name of the person making the disclosure, if known;

2)    the information disclosed; and

3)    any action taken with respect to the disclosure.

49. Illegality of Reprisal

1) Any reprisal taken against a whistle-blower for making or attempting to make a disclosure shall be illegal.
2) Every government office shall establish a procedure to protect its employees from reprisal.

50. Suspension of Reprisal Measure

1) Where the person against whom a reprisal measure has been taken is an employee, he may apply to the court or to any appropriate organ for an injunction.

2) The court or the organ which has received the application in accordance with Sub-Article (1) of this Article has ascertained the existence of a reprisal measure, it shall give a ruling immediately to suspend such measure.
Section Seven
Miscellaneous Provisions

51. Applicable Laws

The Criminal Procedure Code, the Civil Procedure Code, the Penal Code, and any other relevant laws shall be applicable in so far as they are consistent with this Proclamation.

52, Penalty

1) A defendant or any person against whom a restraint order is issued and refuses to comply with such restraint order shall be punished with imprisonment not exceeding 2 years and with a fine not exceeding Birr 10,000 for contempt of court.
2) Unless a higher penalty is provided for in the Penal law; a person who intentionally removes or opens a seal or occasions a loss to the property violating the provisions of Article 15(1) and 16(2) of this Proclamation shall  be punished with imprisonment not exceeding 3 years and a fine not exceeding 20,000 Birr.

53. Effective Date

This proclamation shall come into force as of the 24th day of May, 2001.
Done at Addis Ababa this 24th day of May, 2001.

NAGASO GIDADA (DR.)
PRESEDENT OF THE FEDERAL DEMOCRATIC
REPBULIC OF ETHIOPIA