BOOK II THE CRIMINAL PUNISHMENT AND ITS APPLICATION
TITLE I PUNISHMENTS AND OTHER MEASURES AND THEIR ENFORCEMENT
CHAPTER I GENERAL PROVISIONS
Article 87- Principle.
The penalties and measures provided by this Code must be applied in accordance with the spirit of this code and so as to achieve the purpose it has in view (Art. 1).
The penalties and measures shall always be in keeping with the respect due to human dignity.
Article 88- Calculation of Sentence.
(1) The Court shall determine the penalties and measures in conformity with the provisions of the General Part of this Code and the special provisions defining crimes and their punishments.
(2) The penalty shall be determined according to the degree of individual guilt, taking into account the dangerous disposition of the criminal, his antecedents, motive and purpose, his personal circumstances and standard of education, as well as the gravity of the crime and the circumstances of his commission.
(3) Subject to the provisions of the Special Part of this code, the Court shall carefully examine from the lightest to the most severe punishment and determine only the penalty appropriate for each case.
(4) In order to ensure the correctness and uniformity of sentencing, the Federal Supreme Court shall issue a manual relating to sentencing.
Article 89- Minor Crimes.
In cases of minor crimes the Court may apply the provisions of Article 122 relating to reprimands or warning or the provisions of the Law of Petty Offences.
Minor crimes are crimes which are punishable with simple imprisonment not exceeding three months or fine not more than one thousand Birr.
CHAPTER II ORDINARY PUNISHMENTS APPLICABLE TO ADULTS
Section I- Principal Punishments
Sub-section I- Pecuniary Penalties
Paragraph I- Fine, Confiscation and Sequestration
Article 90- Fine; Principles to be Applied When Fine Imposed.
(1) Fine is paid in money, and is forfeited to the State; subject to any provision of the law to the contrary, it may extend from ten Birr to ten thousand Birr. However, in the case of a juridical person fine may extend from one hundred up to five hundred thousand Birr.
(2) In fixing the amount of the fine, the Court shall take into consideration the degree of guilt, the financial condition, the means, the family responsibilities, the occupation and earnings therefrom, the age and health of the criminal.
(3) When the penalty provided for by the Special Part of this Code is only imprisonment and the criminal is a juridical person, the punishment shall be a fine not exceeding ten thousand Birr for a crime punishable with simple imprisonment not exceeding five years, a fine of up to twenty thousand Birr for a crime punishable with rigorous imprisonment not exceeding five years, a fine of up to fifty thousand Birr for a crime punishable with rigorous imprisonment more than five years but not exceeding ten years, a fine of up to the general maximum laid down in sub-article (1) for a crime punishable with rigorous imprisonment exceeding ten years.
(4) Where only fine is provided for in the Special Part of this Code, and where the criminal is a juridical person, the fine shall be five fold.
Article 91- The Imposition of Fine in Addition to Imprisonment.
Where the Special Part of this Code provides for a fine or imprisonment as an alternative punishment for a crime, and it appears to the Court that, having regard to the degree of guilt and the circumstances of the criminal, it is expedient so to do, it may impose both fine and imprisonment.
Article 92- Motive of Gain as an Aggravating Circumstance.
(1) Without prejudice to any special provision of the law prescribing a higher maximum, where the criminal has acted with a motive of gain or where he makes a business of crime in a way that he acquires or tries to acquire a gain whenever a favourable opportunity presents itself, and where it appears to the Court that, having regard to the financial condition of, and the profit made by, the criminal, it is expedient so to do, it may impose a fine which shall not exceed one hundred thousand Birr.
The fine shall always be in addition to the confiscation of the profit made.
(2) Notwithstanding that no provision is specifically made in the Special Part of this Code, where although gain is not an essential element of a crime, the criminal was motivated by gain in the commission of such crime, the court may impose a fine in addition to imprisonment or measures provided by law.
Article 93- Recovery of Fine.
(1) Fine shall be paid forthwith.
(2) Where the criminal cannot pay the fine forthwith, the Court may allow a period of time for payment; such period may extend, according to circumstances, from one to six months.
(3) Where, having regard to the circumstances of the criminal, it appears to the Court that it is expedient so to do, it may direct the payment of the fine to be made by installments. In fixing the amount and the date for payment of each installment, the Court shall take into consideration the actual means of the criminal. The period of payment shall not exceed three years.
Article 94- Steps Taken by the Court When Fine is not Paid Forthwith.
(1) Whenever a fine is not paid forthwith, the court may require the criminal to produce such sureties or security as is sufficient to ensure the payment of the fine within the stated period.
The security or sureties shall be determined having regard to the circumstances of the case, the condition of the criminal and the interests of justice.
(2) In default of payment of the fine within the fixed period, the Court shall give the appropriate order for the surety or security to be deposited.
(3) When the criminal is unable or deliberately fails to produce surety or security his property shall be seized and sold in accordance with the law. The sale of property shall be carried out subject to the provision of Article 98(3).
Article 95- Conversion of Fine into Labour.
In default of payment of the fine as provided under Articles 93 and 94, the Court shall order the criminal to settle the fine by doing work for the State or for any public authority.
The Court shall, taking into account the amount of the fine, determine the period within which the fines is to be settled. However, the period to b e determined shall not exceed two years.
Article 96- Conversion of Fine into Compulsory Labour.
Where the criminal is not able to fulfill as required under Articles 93-95, the Court shall order the conversion of the fine into compulsory labour.
The period of compulsory labour determined by the Court under this Article shall not exceed two years.
Article 97- Suspension of Enforcement of Compulsory Labour.
When fine is converted into compulsory labour the Court may order the suspension of the enforcement of compulsory labour where the criminal, apart from the case specified under Article 105, is unable to carry out compulsory labour, by reason of his poverty, his family obligation, his state of health or for any other good cause.
Article 98- Confiscation of Property.
(1) Subject to the following provisions of this Article, where the law makes provision for confiscation the Court may order the confiscation of the estate, or part thereof, of the criminal.
(2) Any property which the criminal has acquired, directly or indirectly, by the commission of the crime for which he was convicted shall be confiscated.
An order of confiscation may also apply to any property lawfully acquired by the criminal.
(3) Confiscation shall not affect:
(a) domestic articles normally in use, instruments of trade or profession and agricultural implements, necessary for the livelihood of the criminal and his family;
(b) such amount of foodstuffs and of money as are necessary for the support of the family of the criminal for the support of the family of the criminal for a period of not less than six months or such longer period as the Court, having regard to the particular circumstances of the case and for reasons to be given in its judgment, considers just;
(c) goods, forming part of a family inheritance, of which the criminal cannot freely dispose by gift, will or in any other manner;
(d) half of the common property with regard to the innocent spouse of the criminal, as well as the personal goods of the innocent spouse, children or other persons of which the criminal has, by law or custom, the charge, administration, management or power to dispose.
Article 99- Sequestration of Property.
Where the criminal has been convicted and sentenced in his absence for conspiring or engaging in hostile acts against the constitutional order or the internal and external security of the State, the Court may in addition to any other penalty order the sequestration of his property.
The provisions of Article 98(3) shall apply to an order of sequestration.
Paragraph II. Other Pecuniary Effects
Article 100- Forfeiture to the State.
(1) Any material benefits given or intended to be given to a criminal to commit a crime shall be forfeited to the State.
If they no longer exist in kind the person who received them shall refund their value.
(2) Any fruits of a crime shall be forfeited to the State where its owner or any other claimant is not found within five years starting from the date of publication of notice having been made concerning the recovery of the property in accordance with the usual procedure.
Where the property is likely to be spoiled or become unfit for use it shall be sold in accordance with the usual procedure and the money shall be entrusted to a competent authority for a period not exceeding five years.
Article 101- Restitution or Property, Compensation for Damages and Costs.
Where a crime has caused considerable damage to the injured person or to those having rights from him, the injured person or the persons having rights from him, the injured person or the persons having rights from him shall be entitled to claim that the criminal be ordered to make good the damage or to make restitution or to pay damages by way of compensation.
To this end they may join their civil claim with the criminal suit.
Such claim shall be governed by the provisions laid down in the Criminal Procedure Code.
Article 102- Compensation to Injured Party.
(1) Where it appears that compensation will not be paid by the criminal or those liable on his behalf on account of the circumstances of the case or their situation, the Court may order that the proceeds or part of the proceeds of the sale of the articles distrained, or the sum guaranteed as surety, or a part of the fine or of the yield of the conversion into work, or confiscated property be paid to the injured party.
(2) The claim of the injured party who has been compensated shall be assigned to the State which may enforce it against the person who caused the damage.
Sub-section II- Compulsory Labour and Penalties Entailing Loss of Liberty
Paragraph I- Compulsory Labour
Article 103- Compulsory Labour with Deduction of Wages to the Benefit of the State.
(1) Where the crime is of minor importance and is punishable with simple imprisonment for a term not exceeding six months, the Court may, if the criminal is healthy and is not a danger to society, sentence him to compulsory labour without any restriction of personal liberty subject however to supervision.
This penalty may extend from one day to six months.
(2) The criminal shall serve his sentence of compulsory labour at the place where he normally works or is employed or in a public establishment or on public works.
An amount not exceeding one third of the criminal’s wages or profits shall be deducted and forfeited to the State.
(3) The amount to be deducted, the place where the sentence is to be served, and the period thereof and the nature of the supervision shall be stated in the judgment.
Article 104- Compulsory Labour With Restriction or Personal Liberty.
(1) Where the circumstances of the case show that it is proper or necessary so to do, especially where the criminal fails to discharge his obligation as specified under Article 103(1) above, or where, with a view to keeping the criminal away from unfavourable surroundings or undesirable company, it is expedient so to do, the Court may direct that compulsory labour shall be subject to restriction of personal liberty.
(2) The nature and the duration of such restriction shall be determined by the Court according to the circumstances of the case.
Such restriction may require the criminal to discharge the compulsory labour by remaining in a particular place of work, or with a particular employer, or in a particular establishment, or without leaving his residential area or a restricted area under the supervision of government officials.
(3) If the criminal fails to comply with any such requirement, he shall be liable to simple imprisonment for a period equal to any unfinished period of the sentence of compulsory labour.
Article 105- Suspension of Sentence During Illness.
When the criminal apart from the conditions laid down under Article 97 of this Code, falls ill during the period of his sentence of compulsory labour, he shall not be required to do any work until he recovers.
When the criminal recovers he shall be ordered to resume the compulsory labour; if he is not able to resume the compulsory labour he shall be ordered to carry out another work which is suitable to his health and personal circumstances. Where it is impossible to give or implement such an order, the Court may not impose another penalty on the criminal.
Paragraph II- Penalties Entailing Loss of Liberty
Article 106- Simple Imprisonment.
(1) Simple imprisonment is a sentence applicable to crimes of a not very serious nature committed by persons who are not a serious danger to society.
Without prejudice to conditional release, simple imprisonment may extend for a period of from ten days to three years.
However, simple imprisonment may extend up to five years where, owing to the gravity of the crime, it is prescribed in the Special Part of this Code, or where there are concurrent crimes punishable with simple imprisonment, or where the criminal has been punished repeatedly.
The Court shall fix the period of simple imprisonment in its judgment.
(2) The sentence of simple imprisonment shall be served in such prison or in such section thereof as is appointed for the purpose.
Article 107- Substitution of Compulsory Labour for Simple Imprisonment.
Wherever by reason of local administrative difficulties the execution of a sentence of simple imprisonment is not possible or the carrying out of such sentence is not conducive to the reform or the rehabilitation of the criminal, the Court may, in respect of crimes for which the Special part of this Code provides for a term of simple imprisonment not exceeding six months, inflict a sentence of compulsory labour (Art. 103 or 104) instead of the sentence of simple imprisonment.
The provisions of this Article shall have effect notwithstanding that no provision is made in the Special Part for the application of a sentence of compulsory labour instead of one of simple imprisonment.
Article 108- Rigorous Imprisonment.
(1) Rigorous imprisonment is a sentence applicable only to crimes of a very grave nature committed by criminals who are particularly dangerous to society.
Besides providing for the punishment and for the rehabilitation of the criminal, this sentence is intended also to provide for a strict confinement of the criminal and for special protection to society.
Without prejudice to conditional release, the sentence of rigorous imprisonment is normally for a period of one to twenty-five years but where it is expressly so laid down by law it may be for life.
(2) The sentence of rigorous imprisonment shall be served in such prisons as are appointed for the purpose.
The conditions of enforcement of rigorous imprisonment are more severe than those of simple imprisonment.
Article 109- Common Provisions.
The following provisions are common to both forms of imprisonment. They shall have, as their aim, the achievement of the purpose the determination of the penalties had in view.
Regulations relating to prisons shall provide for the manner of execution of sentences, the admission to prison, the segregation of prisoners, the contact of prisoners with persons outside, the internal discipline in the prisons, and for the education and spiritual welfare of the prisoners.
Article 110- Separation of Sexes and Segregation.
(1) Prisoners of different sexes shall serve their sentences in different prisons and, in default of this, prisoners of different sexes shall be kept in different sections of the same prison and shall not be allowed to mix with prisoners of the other sex.
(2) Prisoners who are sentenced to rigorous imprisonment or special confinement shall be kept separate from prisoners under the age of eighteen years or from adult prisoners who are serving a sentence of simple imprisonment.
(3) Prisoners awaiting judgment or persons detained for civil debts, or public servants who, by virtue of their official duty, had contact with prisoners and who are imprisoned for a crime or detained for civil debt shall be kept separate from prisoners serving sentence.
Article 111- Obligation to Do Work and Benefits Accruing Therefrom.
(1) A prisoner serving a sentence with deprivation of personal liberty shall be under an obligation to do work and such obligation is an essential element in the sentence.
A prisoner in good health shall be compelled to do such work as will be assigned by the Director of Prisons. Such work shall be suitable to the prisoner’s ability and shall be of such nature as to reform and educate the prisoner and to be conducive to his rehabilitation.
(2) A prisoner compelled to work shall, if his work and conduct are satisfactory, be entitled to receive compensation for every day’s work.
The amount of such daily compensation, the manner of keeping it during the period of imprisonment and the manner of its payment upon release from imprisonment shall be governed by regulations relating to prisons.
Article 112- Variation of Conditions of Imprisonment.
With a view to ensuring that the sentence has the effect of reforming the prisoner and of enabling him to resume a normal social life on his release, the execution of the sentence shall be carried out in accordance with the following provisions in this Article and with such other provisions as may be laid down by regulations relating to prisons:
(1) The prison administration may, whenever it appears necessary so to do, impose solitary confinement at the beginning or in the course of the execution of the sentence for a maximum of three months.
Before imposing solitary confinement the prison administration shall determine the measure and duration of such confinement after consultation with a medical doctor and, where necessary, a psychiatrist.
(2) The prisoner shall be bound to work either alone or together with others according to the requirements and conditions prevailing at the time.
Outside periods of work and during the night, prisoners shall, as far as possible, be kept isolated.
(3) Good conduct prisoners may be given more favourable treatment as regards food, access to visitors, nature of work and leisure and treatment may be further improved with improved conduct of the prisoner and with the approach of the prisoner’s release.
Provided that any improved treatment may be withdrawn or suspended for a definite or an indefinite period of time in the case of abuse or persistent misconduct of the prisoner.
Article 113- Conditional Release before Expiry of Period of Sentence.
(1) Before the expiry of a sentence of imprisonment, the prisoner may be released on probation, if his conduct has been satisfactory and other conditions laid down by law (Art. 202) have been fulfilled.
Before being released the prisoner may be required to live on probation in a penitentiary or labour settlement or other similar establishment.
(2) The law relating to the execution of sentences and the regulations relating to prisons shall lay down the conditions and the manner of putting into effect the provisions of this Article.
Article 114- Execution of Sentence in the Case of Members of the Defence Forces.
The foregoing provisions shall be without prejudice to the execution of sentences with deprivation of personal liberty, in the case of members of the Defence Forces in which case the sentence shall be carried into effect in military prisons, camps or fortifications.
The manner of carrying out such sentences shall be laid down by regulations.
Article 115- Deduction of Period of Remand.
(1) In passing a sentence with deprivation of personal liberty, the Court shall specify with period of remand shall be deducted from the period of the sentence:
Provided that no such deduction shall be made or a deduction for a limited period shall be made if such remand or a prolongation thereof is attributable to the criminal.
(2) The conditions of remand and the manner in which it is carried into effect are governed by the Code of Criminal Procedure.
Article 116- Period of Time Spent in Hospital and Transfer in Case of Illness.
(1) If while serving sentence a prisoner has to be transferred to a hospital for treatment, the period spent in hospital shall be reckoned as part of the sentence.
If the transfer to hospital is due to an illness or to any cause existing before the prisoner started to serve his sentence, the period in hospital shall, subject to the provision of sub-article (2) of this Article, be reckoned as part of the sentence.
(2) The period spent in hospital due to illness deliberately caused by the prisoner or due to admission to hospital by misleading statement or behaviour of the prisoner shall not be reckoned as part of the sentence.
(3) If while serving sentence, a prisoner is deemed by experts to be suffering from some mental disorder or to be irresponsible for his acts, the sentence shall be suspended and the criminal shall be transferred to a proper institution for care for treatment.
If the mental disorder or state of irresponsibility of the criminal is of a permanent nature the remaining period of the sentence shall not be carried into effect.
Sub-section III- Punishment of Death
Article 117- General Principles.
(1) Sentence of death shall be passed only in cases of grave crimes and on exceptionally dangerous criminals, in the cases specifically laid down by law as a punishment for completed crimes and in the absence of any extenuating circumstances. A sentence shall be passed only on a criminal who, at the time of the commission of the crime, has attained the age of eighteen years.
(2) Death sentence shall not be carried out unless confirmed by the Head of State. It shall not be executed before ascertainment of its non-remission or non-commutation by pardon or amnesty.
(3) The sentence of death shall not be carried out in public by hanging or by any other inhuman means. The penalty shall be executed by a humane means within the precincts of the prison. The means of execution shall be determined by the executive body having authority over the Federal or Regional prison administration concerned.
The execution of the sentence shall be carried out without any cruelties, mutilations or other physical suffering.
(4) After execution the body shall, upon request, be handed to his family. Failing such request, it shall be given a decent burial.
Article 118- Treatment of Prisoner Awaiting Execution.
While awaiting the confirmation and the execution of the sentence the prisoner shall be detained under the same conditions as a prisoner serving sentence of rigorous imprisonment.
The director of prisons shall take such steps as may be necessary for the safety of the prisoner.
Where the prisoner so desires and where it is possible he shall be given some work to do within his cell.
Article 119- Cases Where Death Penalty may be Suspended.
Death sentence shall not be carried out on fully or partially irresponsible or seriously ill person or on a pregnant woman, while they continue to be in that State.
Article 120- Commutation of Sentence of Death.
(1) In the case of a woman with child and such child is born alive and the mother has to nurse such child, the death sentence may be commuted to rigorous imprisonment for life.
(2) A sentence of death may be commuted or remitted by way of pardon or amnesty in accordance with the provisions of this Code (Arts. 229 and 230).
Section II- Secondary Punishments
Article 121- Principles.
Secondary punishments shall not be applied except together with and subject to a principal punishment. Any such punishments shall apply only when the Court has expressly so directed.
Any such punishments may be applied whenever the general provisions of law have been fulfilled notwithstanding that no provision is specifically made for the application of such punishment in any particular case.
In deciding the application of secondary penalties, the Court shall be guided by their aim and the result they would achieve on the safety and rehabilitation of the criminal.
Article 122- Caution, Reprimand, Admonishment and Apology.
(1) Where the Court considers that an appeal to the honour of the criminal will have beneficial effects on the criminal and on society at large, it may in open Court, either during the trial or in its judgment, caution, admonish or reprimand the criminal. The Court may also order the Criminal to make a public apology to the person injured by the crime, or to the persons having rights from such injured person.
(2) The Court may apply any of the punishments mentioned in this Article instead of the principal punishment where it is specifically laid down by law that such punishments apply to minor crimes; or where extenuating circumstances are present (Arts. 82 and 83); or where the law provides for a free mitigation of the punishment (Art. 180); or where enforcement of a sentence is postponed (Art. 192).
Article 123- Deprivation of Rights.
Where the nature of the crime and the circumstances under which the crime was committed justify such an order, and the criminal has, by his unlawful act or omission, shown himself unworthy of the exercise of any of the following rights, the Court may make an order depriving the criminal of:
(a) his civil rights, particularly the right to vote, to take part in any election or to be elected to a public office or office of honour, to be a witness to or a surety in any deed or document, to be an expert witness or to serve as assessor; or
(b) of his family rights, particularly those conferring the rights of parental authority, of tutorship or of guardianship; or
(c) his rights to exercise a profession, art, trade or to carry on any industry or commerce for which a license or authority is required.
Article 124- Period of Deprivation.
(1) Any deprivation (Art. 123) may be permanent or temporary and where temporary shall be from six months to five years.
In fixing the period in each case the Court shall take into consideration the gravity of the crime, the antecedents and character of the criminal, the danger of a relapse into crime, the need for, and utility of the deprivation or the probable effect of the punishment and the interests of society.
(2) A sentence of death or of rigorous imprisonment carries with it the deprivation of all civil rights. When deciding a sentence of rigorous imprisonment, the Court shall determine the duration of the deprivation of civil rights. Subject to the exercise of pardon (Art. 229) and amnesty (Art. 230) or reinstatement (Arts. 232-237) such deprivation shall be permanent in the case of a sentence of death or of rigorous imprisonment for life.
Article 125- Date from Which Deprivation shall have Effect.
(1) Any deprivation shall have effect from the day on which the judgment becomes final.
(2) In the case of temporary deprivation the period fixed shall begin to run from the day of expiry of the term of the principal sentence or the day on which the principal sentence was remitted or barred by limitation.
In the case of conditional release from a sentence restrictive of personal liberty, and where the criminal has been of good conduct during the period of such release, the deprivation or suspension of the exercise of rights shall begin to run from the day of release.
In case of forfeiture of professional rights (Art. 123(C)), the Court may on trial authorize resumption of activity during the probation period of the conditional release (Art. 205).
Article 126- Reinstatement.
A criminal may be reinstated into the exercise of his rights in the cases and under the conditions laid down by law (Arts. 232-237).
Article 127- Dismissal from the Defece Forces and Reduction in Rank.
(1) Where the criminal is a member of the Defence Forces and is convicted by a military court, the Court may in addition order the reduction in rank of the criminal and his dismissal from the Defence Forces where his crime shows him to be of a base, wicked or dangerous disposition.
(2) Such punishment shall be applied after consultatior, with the competent military authority.
Nothing in this Article shall prevent the imposition of any other secondary penalty.
Article 128- Legal Effect.
Reduction in rank or dismissal from the Defence Forces shall take effect as provided by military law.
CHAPTER III MEASURES APPLICABLE TO ADULTS IN SPECIAL CASES
Section I- Measures Applicable to Irresponsible Persons and Criminals with a Limited Responsibility
Article 129- Principle.
After ascertaining on the bases of normal enquiry and expert examination, (Art. 51) whether the criminal is irresponsible (Art. 48) or whether he is of a limited responsibility (Art. 49), the Court shall apply the following provisions having regard to the circumstances and requirements of the case.
Article 130- Confinement.
(1) If the criminal, by reason of his condition, is a threat to public safety or order, or if he proves to be dangerous to be persons living with him, the Court shall order his confinement in a suitable institution.
(2) If he is in need of treatment, he shall either be treated in the institution in which he is confined or be transferred to an appropriate institution in accordance with Article 131. Proper provision may be made for his safe custody.
Article 131- Treatment.
(1) Where a criminal is suffering from a mental disease or deficiency, deafness and dumbness, epilepsy, chronic alcoholism, narcotic and psychotropic substances, intoxication due to the abuse of narcotics or any other pathological deficiency and requires to be treated or placed in a hospital or asylum the Court shall order his treatment in a suitable institution or department of an institution.
(2) Where the Court is satisfied that the criminal is not dangerous and can be treated as an out-patient, it shall order accordingly.
The Court shall then order that the criminal be kept under proper supervision and control either by the medical expert in charge of the case or by some other competent authority. An order made under this Article may be revoked at any time where it is known that it is unreliable or cannot produce positive result.
Before revoking the order or taking other appropriate measures, the Court may require from the medical experts or other competent authority such report as it considers necessary.
Article 132- Duration of Confinement or Treatment.
(1) The competent administrative authority shall carry out the Court’s decision concerning treatment and confinement.
Treatment and confinement shall be of indefinite duration but the Court shall review its decision every two years.
As soon as, according to expert opinion, the reason for the measure has disappeared the administrative authority shall, after having referred the matter to the Court and upon its decision, put an end to the measure ordered.
(2) Although the cause due to which the measure was ordered is not fully eliminated, the Court may, at any time during the enforcement of the treatment or confinement, order the temporary suspension of such a measure in accordance with the administrative authority’s report where its propriety has been confirmed by expert opinion.
The Court shall release the criminal to the supervision of a selected protector for not less than one year and shall in addition impose such conditions as may be necessary (Art. 205).
(3) Any order made under this Article may at any time be revoked where public safety or the condition of the released person so requires.
If the probation period is successfully undergone, the release shall be final.
Article 133- Effect of Limited Responsibility upon Penalty.
(1) In the case of criminals of limited responsibility, subject to the determination of penalty under Article 49, the Court shall when necessary, after having suspended the sentence temporarily, order his confinement (Art. 130) or his treatment in a suitable institution (Art. 131).
(2) Upon termination of the measure ordered the Court shall, upon a report made by the management of the institution or the responsible protector, decide whether the enforcement of the penalty is still necessary and determine in accordance with the provision of Article 116 of this Code whether or not the period of confinement or treatment should be deducted from the sentence unserved.
The Court shall take into account the gravity of the crime committed, the antecedents and character of the criminal, the effect the internment or treatment had upon his condition and the likelihood of his permanenet recovery.
(3) No penalty shall be enforced where the Court considers it inexpedient so to do.
Section II- GENERAL MEASURES FOR PURPOSES OF PREVENTION AND PROTECTION
Article 134- Principle.
The general preventive and protective measures provided in this Chapter may be applied together with the principal penalty or after the principal penalty has been undergone when, in the opinion of the Court, the circumstances of the case justify.
All such measures must be specifically ordered by the Court on such conditions and in all such cases as it deems necessary, notwithstanding that no provision is made in the Special Part of this Code for their application.
Sub-section I- Measures of a Material Nature
Article 135- Guarantee of Good Conduct; Principle.
(1) When a convicted person indicates his intention to commit a further crime or when it is likely that he will commit a further crime as in a case of declared hostility or threat, the Court may require him to enter into a recognizance to be of good behaviour together with a surety or sureties.
(2) The recognizance shall be for a period of from one to five years.
The surety shall be in the form of a personal or monetary guarantee.
(3) The Court shall determine the duration of the recognizance and the value of the guarantee according to the nature and gravity of the threat and having regard to the personal and material circumstances of the criminal or his guarantors.
The recognizance of the guarantee shall be recorded in the judgment.
Article 136- Refusal of Recognizance or Guarantee.
(1) If the person by whom the commission of a crime is feared refuses to enter into the required recognizance or if, by ill-will or bad faith, he does not name a guarantor or deposit the required surety within the specified time, the Court shall order him to be detained until he complies.
(2) The Court shall at the same time determine the duration of such detention. Save in exceptional circumstances such as a renewal of the threats of the obvious persistence of the dangerous disposition or ill-will of the person concerned, the detention shall not exceed three months.
The Court may, on application for good reason, release the convicted person under supervision (Art. 148) or grant a further detention for a period of not more than three months, if safety so requires. The total period of detention may in no case exceed six months.
(3) When adequate sureties or guarantees are furnished the prisoner shall be set free.
Article 137- Legal Effect.
When the probation period specified in the recognizance has elapsed without any crime having been committed the guarantee shall be discharged, the guarantors released and the sums or sureties lodged returned to their owners. If a crime is committed during the probation period, the surety shall be forfeited to the State or the guarantor required to discharge his obligation, without prejudice to the ordinary penalties and measures to which the criminal is liable for his crime.
Article 138- Inability to Furnish a Guarantee.
If the person by whom the commission of a crime is feared is through no fault of his own, unable to furnish the surety or personal guarantee required, the Court shall order that he be set free and placed under supervision (Art. 148).
Article 139- Repetition of the Measure.
(1) The Court may order a person who has entered into a recognizance to enter into a fresh recognizance where circumstances particularly fresh threats by, or dangerous disposition of the criminal justify (Art. 135).
(2) However, where the said person has been previously detained for the maximum period of six months specified in Article 136(2) second paragraph, he may not be detained again if he refuses to enter into the fresh recognizance. If a further order is required it shall be an order of supervision (Art. 148).
Where the nature of the threat falls under the provision of Article 580 nothing shall exclude the prosecution of the doer under the said Article.
Article 140- Seizure of Dangerous Articles.
(1) The Court shall order the seizure of all articles having been used or likely to be used for the commission of a crime, or which have been obtained as the result of a crime, when they endanger public order, safety, health or decency.
It may order that the seized articles be either destroyed, rendered useless or handed over to a police or a criminological institute.
(2) Interests of innocent third parties shall be protected and weapons or instruments the possession of which is not forbidden by law shall be returned to their owner.
Article 141- Common Provision: General Preventive Application.
A person may, before prosecution or during trial, be required to enter into a recognizance to be of good behaviour where such person behaves or is likely to behave in a manner which threatens peace or security of the public or a member thereof.
An order for seizure of any dangerous article may where circumstances so justify by made on any person in accordance with Article 140 even in cases where such person cannot be charged or convicted.
Sub-section II- Measures Entailing Restrictions on Activities
Article 142- Suspension and Withdrawal of a License.
In the case of a grave or repeated crime committed by any physical or juridical person holding an official license entitling him/it to carry out any profession or activity the Court may, in addition to the penalty imposed, order the withdrawal of the license for a period of from one month to one year.
In cases of recidivism or of a particularly grave danger the license may be revoked for good.
Nothing in this Article shall affect the provisions of Article 123(c).
Article 143- Prohibition and Closing of an Undertaking.
In addition to the penalty imposed upon the criminal the Court may order that any undertaking or establishment whether commercial, industrial, cultural or political which was utilized to commit or further the commission of a crime shall cease to function and be closed where the crime committed is a danger to public security.
The Court may order the winding up of such an undertaking where the crime committed entails a penalty of rigorous imprisonment exceeding one year.
Article 144- Effect of Non-observance.
(1) Measures prescribing closing down, suspension or prohibition may be general or limited to a specified time, place or area as determined in the judgment.
They imply a prohibition of the continuance of the forbidden activity either by the convicted person or a third party by whatever name or management.
(2) Infringements of a prohibition under this Article shall be punished under Article 459.
Where an establishment or centre has been reopened in violation of a prohibition it shall be wound up and the assets disposed of according to law.
Sub-section III- Measures Entailing a Restriction on Personal Liberty
Article 145- Prohibition from Resorting to Certain Places.
(1) In addition to the penalty the Court may restrain the convicted person from having access to or remaining in certain places the resorting to which contributed to the commission of the crime or may expose the criminal to committing fresh crimes, in particular public-houses, inns, entertainment halls, markets and other public places.
(2) The Court shall specify in its judgment the extent and duration of the restraint which may be from three months to one year.
Article 146- Prohibition to Settle Down or Reside in a Place.
(1) Where it becomes necessary for purposes of protection as laid down in Article 145, a similar prohibition may be ordered in respect of settlement or residence in a town, village or a specified area.
(2) It shall be of temporary nature having regard to the gravity of the crime, the character of the criminal and the circumstances of the case. A temporary prohibition may be for a period of from one to ten years.
The Court shall give reasons for its decision and shall specify the territorial area to which the prohibition extends and its duration.
Article 147- Obligation to Reside in a Specified Place or Area.
(1) Where a criminal is likely to cause further disturbance or pursue a life of crime, the Court may order the criminal to reside in a specified place or area where the likelihood of his committing further crimes is lessened.
(2) The Court shall decide the place or locality where the criminal is to reside and its duration which shall not b less than one year and more than five years.
(3) An order shall not be made under this Article where an order under Article 135 will meet the circumstances of the case.
Article 148- Placing under Supervision.
(1) Where such a measure appears necessary the Court may order that a convicted person be placed under police supervision.
Except as otherwise expressly provided by law in particular under Article 138 such a measure shall be ordered only in respect of a criminal who is proved to be dangerous by the gravity or repetition on his criminal acts and who was sentenced to at least a term of simple imprisonment of one year.
(2) The Court shall prescribe the period of supervision which shall be from one to five years.
Such supervision must be effected so as not to hinder the person who is the subject thereof in the exercise or resumption of his normal activities and living and not to prevent reinstatement.
The person subjected to supervision may be ordered to report himself either at regular intervals or when summoned so to do.
(3) The Court may in an appropriate case order supervision by a protector (Art. 208), where such an order appears sufficient having regard to the circumstances of the case.
Article 149- Withdrawal of Official Papers.
Where special reasons, relating to supervision or safety require, the Court may in addition order the temporary retention or withdrawal of the official papers or passport of the convicted person.
The reasons for such a measure and its duration shall be stated in the judgment.
Article 150- Prohibition from Residing in the Territory; Expulsion.
(1) If the convicted person is an alien and proves to be undesirable or dangerous the Court may order expulsion from the territory of the State either temporarily or permanently.
This measure may always be ordered in respect to a convicted person who has been sentenced to a term of simple imprisonment of three years or more, or to an irresponsible or partially responsible criminal recognized by expert opinion as a danger to public order.
The duration of expulsion shall be specified in the judgment.
(2) The Court shall, prior to its decision, consult the competent public authority.
Nothing in Article shall affect the provisions of international conventions.
(3) The application of any other measure does not preclude expulsion.
Article 151- Enforcement.
(1) The enforcement of an order of expulsion shall be the duty of the competent public authority and shall be effected in accordance with the relevant administrative regulations.
(2) In the case of a sentence entailing loss of liberty the order of expulsion shall be carried out after the sentence has been served or remitted through pardon or amnesty.
(3) In the case of a criminal whose responsibility is limited and when circumstances so justify the penalty may be first enforced and expulsion substituted for the ordinary measures of safety (Art. 130) or treatment (Art. 131).
In the case of an irresponsible person expulsion may, if appropriate in the circumstances of the case, be substituted for the measures of confinement or treatment.
Article 152- Suspension of the Measures by way of Probation.
When a criminal has been sentenced to a penalty entailing loss of liberty and his conditional release is ordered, the suspension of the order concerning prohibition from residing in a specified place, obligatory residence or expulsion may by ordered by the Court by way of probation and subject to possible revocation, on such general terms and under such guarantees as are provided by law (Art. 207).
Article 153- Penalty in Case of Violation of Safety Provisions.
Infringements of the provisions relating to prohibition from resorting to certain places, or from residing or settling in the country, obligatory residence and the obligation to subject oneself to such supervision as is ordered, as well as prohibition from entering the territory of the State in case of expulsion, shall be punished under Articles 459 and 465.
Sub-section IV- Measures for Purposes of Information
Article 154- Notification to the Competent Authority.
In every case where the Court pronounces a secondary penalty or a protective or preventive measure as provided in the foregoing Sections, it shall notify without delay the administrative, civil, military or police authority concerned or any other competent public authority with a view to the enforcement of the decision and the control of its observation.
It shall, in each case, determine to what extent the decision shall be made publicly known in order to ensure its efficacy.
Article 155- Publication of the Judgment.
(1) Whenever the general interest or that of the accused or of the injured person so requires the Court shall order the publication of the judgment or parts thereof.
Such publication shall be ordered as a matter of course when it serves the public interest; it shall be effected only on a written request by the interested party when it serves private interests.
(2) The Court shall determine the conditions under which the publications shall take place and their number, according to usage, the circumstances of the case and expediency.
Publication may be effected by means of posters in a public place, or through other mass media.
Article 156- Entry in Judgment Register.
(1) Penalties and measures pronounced in a judgment shall be entered in the judgment register of the person concerned in cases where such an entry is required by law and in accordance with the provisions of the order relating thereto.
These provisions shall also determine the particulars to be included in the entries and their duration, the extent to which they may be communicated to other people having a justified interest therein, as well as the conditions under which they may be cancelled and the effect thereof in case of reinstatement.
(2) As a general rule, extracts from entry in judgment register are intended to enable the competent judicial authorities to ascertain the criminal antecedents of an accused person. They shall not be communicated to third parties or to offices which are not expressly entitled to take cognizance thereof, in order not to hinder the reinstatement of the convicted person.
CHAPTER IV MEASURES AND PENALTIES APPLICABLE TO YOUNG PRSONS
Section I- Period Between Ages of Nine and Fifteen
Sub-section I- Ordinary Measures.
Article 157- Principle.
In all cases where a crime provided by the criminal law or the Law of petty Offences has been committed by a young person between the ages of nine and fifteen years (Art. 53), the Court shall order one of the following measures having regard to the general provisions defining the special purpose to be achieved (Art. 55) and after having ordered all necessary inquiries for its information and guidance (Art. 54).
Article 158- Admission to a Curative Institution.
If the condition of the young criminal requires treatment and where he is feeble minded, abnormally arrested in his development, suffering from a mental disease, epileptic or addicted to drink, abuse of narcotic and psychotropic substances or other plants with similar effect the Court shall order his admission to a suitable institution where he shall receive the medical care required by his condition.
His treatment shall where possible include education and instruction.
Article 159- Supervised Education.
(1) If the young criminal is morally abandoned or is in need of care and protection or is exposed to the danger of corruption or is corrupted, measures for his education under supervision shall be ordered.
He shall be entrusted either to relatives or if he has no relatives or if these have proved to be incapable of ensuring his education, to a person (guardian or protector), a reliable person, or organization for the education and protection of children.
The supervisors mentioned in the preceding paragraph shall undertake in writing before the Court that they will, under their responsibility, see to the good behaviour of the young criminal entrusted to them.
The local supervisory authorities (Art. 208) shall be responsible for the control of the measure.
(2) Specific conditions such as regular attendance at a school or the obligation to undergo an apprenticeship for a trade, the prohibition to associate with certain persons or resort to certain places, the obligation to appear personally before, or to report on certain dates to the supervisory authority may b imposed.
Such conditions may, according to their nature and purpose, be ordered either in respect to the young person or to the persons who vouch for his good conduct.
(3) A recall or a formal admonition may, if necessary, be sent to such persons by the supervisory authority or the Court.
The custody and education of an infant may at all time be withdrawn from the person or organization entrusted therewith if they prove to be incapable of discharging their trust in a proper manner.
Article 160- Reprimand; Censure.
(1) When such a course seems appropriate and designed to produce good results the Court may reprimand the young criminal.
It shall direct his attention to the consequences of his act and appeal to his sense of duty and his determination to be of good behaviour in the future.
(2) This measure may be applied alone when the Court deems it sufficient for the reform of the young criminal, having regard to his capacity of understanding and the not serious nature of the crime or the circumstances of its commission.
If expedient, it may be coupled with any other penalty or measure.
Article 161- School or Home Arrest.
In cases of small gravity or when the young criminal seems likely to reform, the Court may order that he be kept at school or in his home during his free hours or holidays and perform a specific task adapted to his age and his circumstances.
The Court shall determine the duration of the restraint in a manner appropriate to the circumstances of the case and the degree of gravity of the crime committed.
It shall order the necessary steps for ensuring strict enforcement under supervision.
Article 162- Admission to a Corrective Institution.
The Court may order his admission into a special institution for the correction and rehabilitation of young criminals, taking into account the bad character, antecedents or disposition of the young criminal as well as the gravity of the crime and the circumstances under which it was committed.
The Young criminal shall there receive, under appropriate discipline, the general, moral and vocational education (apprenticeship) needed to adapt him to social life and the exercise of an honest activity.
Article 163- Duration of the Measures.
(1) Measures for treatment (Art. 158) and supervised education (Art. 159) shall, as a general rule, be applied for such time as is deemed necessary by the medical or supervisory authority and may continue in force until the young criminal has come of age (eighteen years).
They shall cease to be applied when, in the opinion of the responsible authority, they have achieved their purpose.
(2) The sending to a corrective institution (Art. 162) shall, as a general rule, be ordered for a period of not less than one year not exceeding five years, in on case shall it extend beyond the coming of age of the young criminal.
The judgment shall fix the duration in each case.
Conditional release by way of probation after detention for one year may be ordered under such general conditions as are provided by law (Art. 205) and subject to the application of rules of conduct and submission of the released criminal to the control of a protector (Art. 208) during the fixed probation period.
Article 164- Variation of the Measures.
On the recommendation of the management of the institution the Court may vary an order made under the preceding Articles when such variation will benefit the young criminal.
Article 165- Legal Effect of the Measures.
A young person in regard to whom one of the aforesaid curative, educational or corrective measures has been ordered shall not be regarded as having been sentenced under criminal law.
Sub-section II – Penalties
Article 166- Principle.
Where measures under Articles 158-162 have been applied and have failed the Court may sentence a young criminal to one of the following penalties, after having ordered such inquiries to be made as may seem necessary (Art. 54).
Article 167- Fine.
(1) In cases where the young criminal is capable of paying a fine and of realizing the reason for its imposition, the Court may sentence him to a fine, which shall be proportionate to his means and the gravity of the crime.
A fine may be imposed in addition to any other penalty.
(2) The provisions regarding the substitution of other penalties for fine and the consequences of non-payment (Art. 94-95) are not applicable to young criminals.
Should a young criminal deliberately fail to pay the fine within a reasonable time fixed by the judgment the fine may be converted into school or home arrest (Art. 161) for such time as shall be fixed by the Court.
Article 168- Imprisonment.
(1) When a young criminal has committed a serious crime which is normally punishable with a term of rigorous imprisonment of ten years or more or with death the Court may order him to be sent:
(a) either to a corrective institution (Art. 162) where special measure for safety, segregation or discipline can be applied to him in the general interest; or
(b) to a penitentiary detention institution if he is incorrigible and is likely to be a cause of trouble, insecurity or corruption to others. The principle of segregation shall be applied in this case (Art. 110(2)).
(2) The Court shall determine the period of detention to be undergone according to the gravity of the act committed and having regard to the age of the criminal at the time of the crime, It shall not be for less than one year and may extend to a period of ten years.
When the criminal was sent to a corrective institution he shall be transferred to a detention institution if his conduct or the danger he constitutes renders such a measure necessary, or when he has attained the age of eighteen years and the sentence passed on him is for a term extending beyond his majority.
In such a case the Court shall take into account, in determining the duration of the detention to be undergone, the time spent in the corrective institution and the results thereby obtained.
(3) Detention shall take place under the regime of simple imprisonment (Art.106) and conditional release may be granted under the usual conditions provided by law (Art. 113) if the young criminal appears to have reformed.
Sub-section III- Common Provisions
Article 169- Petty Cases; Waiving of Penalty for Definite Reasons.
In case of a less serious crime, when six months at least have elapsed since the crime was committed the Court may order no measure or penalty if it appears to be no longer necessary or expedient.
Such shall be the case in particular when educational or corrective measures or suitable punishment has already been imposed by the parental or family authority, or when the young criminal is of good behaviour and seems to be reformed and no longer to be exposed to a risk of relapse.
Article 170- Special Period of Limitation.
(1) When half the ordinary or the special period of limitation (Arts. 217, 218) has expired since the day on which the crime was committed, the Court may, if circumstances seem to justify such a decision, renounce imposing any measure or penalty except in the cases of serious crimes mentioned in Article 168.
(2) In the case of serious crimes mentioned under Article 168, the general rules governing the limitation of the prosecution and the sentence shall apply.
Article 171- Suspended Sentence and Period of Probation.
The general rules regarding the suspension of the sentence or of its enforcement with submission for a specific time to a period of probation under supervision (Arts. 190-200) shall, as a general rule, remain applicable to young criminals if the conditions for the success of such a measure seem to exist and subject to the rules concerning serious crimes as defined in Article 168.
The duration of the period of probation shall be fixed between one and three years.
Article 172- Effect of Measures and Penalties upon Civil Rights.
The measures and penalties imposed upon a young criminal shall not result in the loss of his civil rights for the future, save in exceptional cases where the Court regards it as absolutely necessary on account of the special gravity of the crime committed within the meaning of Article 168.
Article 173- Preventive and Protective Measures of a General Nature.
The provisions concerning forfeiture to the State (Art. 100), the seizure of dangerous articles (Art. 140) as well as the prohibition from resorting the certain places (Art. 145) shall be applicable to young criminals.
The Court may in addition order the expulsion (Art. 150) of an alien under age who proves to be unamenable to reform and dangerous for the community, at the end of the period of corrective detention.
Due notice shall be given to the appropriate public authorities, guardians or institutions (Art. 154) of all measures taken and penalties imposed upon young criminals.
Article 174- Publication of Judgment and Entry in Judgment Register.
The publication of the judgment in respect to young criminals shall never be effected through the mass media (Art. 155).
The entry in the judgment register (Art. 156) of the measures and penalties affecting them shall be made merely for the information of the official, administrative or judicial authorities concerned. In no case shall excerpts from their record be communicated to third parties.
Article 175- Cancellation of Entry and Reinstatement.
On the application of the young criminal or of those having authority over him the competent authority may order the cancellation of an entry in his personal judgment register of measures or penalties applied to him, except imprisonment, within two years from their enforcement if the normal conditions for reinstatement (Arts. 232-237) are fulfilled.
Section II- Period Between Ages of Fifteen and Eighteen
Article 176- Normal Case.
In the case of a crime committed by a young person belonging to the intermediary age group extending from the end of criminal minority (15 years) to legal majority (18 years), the Court applying the ordinary provisions of the law (Art. 56) may reduce the penalty within the limits it specifies (Art. 179), if the circumstances of the case seem to justify such a reduction.
In no case may death sentence be passed upon a criminal who had not attained his eighteenth year of age at the time of commission of the crime (Art. 117).
In the carrying out of penalties entailing loss of liberty the rule of segregation until majority (Art. 110(2)) shall be strictly observed.
Article 177- Special Case.
(1) Where a young criminal’s physical or metnal development is considered to be that of a young person below the age of fifteen or did not commit a serious crime and, according to expert opinion, still seems amenable to curative, educational or corrective measures provided in Section I of this Chapter in respect to young criminals, the Court may by stating its reasons therefore, instead of mitigating the ordinary penalty in accordance with the preceding provision, order one of the aforesaid measures or penalties, in particular his dispatch to a curative or corrective institution.
(2) The curative, educational or corrective measure may under no circumstances be extended beyond legal majority (Art. 163).
The Court may, before the end of the period, review its order with a view to deciding what length of the period spent in a corrective institution is to be considered as part of the penalty where it deems it necessary, in particular where it is appropriate to order detention in a penitentiary establishment (Art. 168 (2)) upon release from the corrective institution.