Cassation Decisions

Rakeb M. v. Federal Prosecutor-Confiscation of property in criminal cases- right of the spouse- Cassation File No. 79860

Rakeb M. v. Federal Prosecutor

Federal Supreme Court Cassation File No. 79860 (15 November 2012)

Holding of the Court:

When the defendant is found guilty in a criminal case and if the decision involves confiscation of property, the innocent spouse can have a preferential right over half of the common property. In relation to expenses for the livelihood of the family, courts only have the obligation to calculate the amount needed for not less than six months.

Article 98(3) (b) and (d) of the Criminal Code

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Cassation File No. 79860 Hidar 6, 2005 E.C. (15 November 2012)

Federal Supreme Court Cassation Division

Justices: Teshager G/Selassie, Almaw Wolie, Adane Negussie,

Mekonnen G/Hiwot, Teklit Yimsel

Petitioner: Rakeb M. Respondent: Federal Prosecutor

The following judgment is rendered.

Judgment

This case is related with properties of a convicted person to be confiscated by the government and the amount and types of expenses that should be reserved for the livelihood of the offender’s family. The issue that initiated this case is the decision rendered by the Federal High Court on Tahsas 13, 2002 EC (December 22, 2009) File No. 81406. The decision was made in favour of the current petitioner.

Getu W. was found guilty in a criminal charge as a third defendant, after which an application was made for the execution of the judgment listing the types of property of the convict that were to be confiscated. This request was made to the Federal First Instance Court and the court summoned the debtor to defend his case. The current petitioner then submitted her written objection against the application for the execution of judgment on Sene 09, 2003 EC

(June 16, 2011). The court, then, stated that as the defendant was found guilty [in an offence that entails confiscation of his property], it was decided that his property be confiscated. Moreover, the court pointed out that the rights of his children and third parties were protected.

The Federal First Instance Court held that the current petitioner, (Getu’s wife), is entitled to half of the common property of the spouses and that her share should not be affected by the confiscation. With regard to the children, the court invoked Article 98(3)(b) of the Criminal Code, and stated that the confiscation shall not affect the amount of foodstuff and the expenses necessary for the support of the family for a period of six months. This also includes medical expenses, expenses for education and transportation needed for six months. Furthermore, the court considered other necessities for their livelihood until they reach majority such as housing, clothing and food. However, the expense listed for higher education was rejected because it was not supported by evidence.

Accordingly the court found that the following should not be subject to confiscation:

Medical expenses: Birr 1,500 per month; educational expenses of six months Birr 6,243 for each child; transportation expense for each child, Birr 1,000 and a total amount of Birr 3,000 for six months; F or clothing and food, Birr 1,500 per month for each child and the total amount was to be calculated until the children reach majority. The total amount of money to be reserved for the children was calculated to be Birr 428,286. As Ato Getu has the responsibility to cover half of this amount, the court decided that Birr 214,143 was to be deducted from the property of Ato Getu that was going to be confiscated.

The current petitioner was displeased by this decision. She appealed to the Federal High Court but the appeal was rejected. She has now submitted a petition to this Cassation Division of the Federal Supreme Court. The petition contests the court’s rejection of her preferential claim to buy her husband’s share in the property to be confiscated. Moreover, she stated that the calculation that considered only six months in determining the expense for the children’s medical needs, education and transportation goes against the best interest of the children.

The petition was examined by the Cassation Division of the Federal Supreme Court in light of Article 98(3)(b) of the Criminal Code. This court has examined whether the rights of the petitioner have been overlooked and whether the six-month delimitation was proper in the calculation of the expenses for the children’s medical needs, education and transportation. The current respondent was then called and both parties have submitted their arguments.

This court has observed that the lower court recognized the petitioner’s entitlement to half of the property that is to be confiscated. The lower court also decided that half of the expenses for the benefits of the children shall be deducted from the share that will be confiscated. However, it did not state anything in reference to the petitioner’s right to have preferential claim to buy part of the property that will be confiscated. The lower court calculated the children’s medical needs, education and transportation needed for six months. As to their clothing and food, the court calculated the expenses until they reach majority. It determined Birr 1,500 per month for these necessities.

With regard to the petitioner’s request for a preferential right to buy the property, Article 98(3) (d) of the Criminal Code does not clearly state that the innocent spouse shall have preferential claim to buy the property other than stating that confiscation due to conviction shall have no effect over the share of the innocent spouse of the person convicted. The current respondent has given its opinion in the lower court that it has no objection against the petitioner’s request. Thus, since there is no legal ground that prohibits this, the Cassation Division of the Federal Supreme Court has found that it was not proper for the lower court to overlook the request.

In relation to the expense for the children’s education, medical needs and transportation, the lower court decided that the request was exaggerated and it determined an amount it found appropriate. Article 98(3)(b) of the Criminal Code states that confiscation shall not affect “such amount of foodstuffs and of money as are necessary for the support of the family of the [offender] for a period of not less than six months or for 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”. It can be understood from the content and spirit of this provision that the amount of foodstuffs and of money necessary for the support of the family of the offender for a period of not less than six months shall not be affected by confiscation and there could be instances where the period can be longer than six months.

Thus, it is clear that the court can neither reduce the period nor allow deduction (from the property that is to be confiscated) for longer than six months. It cannot also allow deduction for purposes that are not expressly stated in the law. The main objective of the provision is to protect innocent family members of the convicted person, rehabilitate the offender and to deter others from committing similar crimes. These go in line with the objectives provided under Articles 1 and 87 of the Criminal Code. Thus, Article 98(3)(d) determines the period as six months, and this does not take into consideration the long term needs of the convicted person’s family.

With regard to the complaint of the petitioner that the amount calculated for six months is inadequate, this court has found that the issue falls under the power of the lower courts and that it does not fall under this court’s jurisdiction in accordance with Article 80(3) (a) of the FDRE Constitution and Article 10 of the Proclamation No. 25/1996. The request thus falls outside this court’s function whose mandate is to look into whether there exists a fundamental error of law in court decisions.

In relation to the children’s best interest in the realms of education and medical needs, this court has found the request stated in the petition unacceptable because the lower court has, in accordance with the law, determined an amount they would need for six months. No evidence was presented supporting the claim that their needs are in jeopardy after the lapse of the six months.

Therefore, there is no fundamental error of law in the lower court’s decision which considered only six months in calculating the expenses for the children’s medical needs and education. The court has rendered the following decree.

Decree

1.The decision of the Federal First Instance Court, File No. 175740 rendered on Hamle 20, 2003 EC (July 27, 2011) and confirmed by the decision of the Federal High Court File Number 115859 on Megabit 21, 2004 EC (March 30, 2012) is amended in accordance with Article 348(1) of the Civil Procedure Code.

2.The preferential claim of the petitioner to buy the property half of which she owns as common property shall be protected as the respondent has no objection on the matter.

3.With regard to expenses for the children’s medical needs, education and transportation, this court has, in light of Article 98(3)(d), found no fundamental error of law in the decision of the lower court that calculated the amount for the period of six months.

Signatures of five justices

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Source: Federal Supreme Court Cassation Division Decisions Volume 14, pp 261-264

Abridged translation: Selam Abraham

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