Some Points on Remand

Under the Ethiopian Criminal Justice System, delivery of criminal justice is a process. It starts from setting justice on motion. Some person or government official may give information about the commission or omission of a crime. The person need not necessarily be the victim of a crime. He or she may be any concerned person or whistle blower. After the police get such information, the police start criminal investigation. In principle and from the point of view of human rights, no one should be arrested before the necessary investigation is done and the appropriate evidence is collected. The arrest if necessary should follow the investigation. Thus, investigation should, in principle, precede arrest. However there may be some cases that the suspect is under custody until the completion of the investigation. Article 59(1) of the criminal procedure code rules “The court before which the arrested person is brought (article 29) shall decide whether such person shall be kept in custody or be released on bail.” Sub article 2 rules “Where the police investigation is not completed the investigating police officer may apply for a remand for a sufficient time to enable the investigation to be completed.” Sub article 3 rules “A remand may be granted in writing. No remand shall be granted for more than fourteen days on each occasion.” Oftentimes a person suspected of committing a criminal offence or omitting any duty deemed under the law to be a crime may be held under police custody. Most of the time, the police arrests suspects before collecting enough prima facie evidence. Article 29 (1) of the criminal procedure code of Ethiopia rules “where the accused has been arrested by the police or a private person and handed over to the police (art. 58), the police shall bring him before the nearest court within forty eight hours of his arrest or so soon thereafter as local circumstances and communications permit.” This is a clear rule that the police must bring the suspect to a court of justice within forty eight hours of the arrest. The purpose of this is to make the arrest be known by the court of law and by so doing the police may require the court additional time to do further criminal investigation holding the suspect under custody. During this time, the suspect may request the court to be released on bail pending the remaining investigation.The court may or may not allow the time requested by the police based on some conditions. Basically, if the remaining investigation can be done without the need to keep the suspect under arrest, the court may grant bail pending the remaining investigation. A police requests the suspect to remain under custody doesn’t necessarily mean the court permits it. It is the discretion of the court to permit or decline based on the conditions of the particular case. It is a common practice but one that needs to be abandoned that police often request the suspect to remain under custody without assuring that the remaining investigation can be obstacle if the suspect is released on bail. Howevee, there are some investigators that frankly explain that the remaining investigation can be done even if the suspect is released on bail. Doing so is fair as the police are deemed also to stand for fair justice but not merely for unnecessarily arresting suspects. The other point that requires to be taken seriously is whether the police have started investigation, showen diligence and progress in the task of investigation. The court needs to check what has been done so far not only by orally asking the investigator but also by ordering the investigator to bring the investigation file and by examining its contents. This needs to be done because it should never be forgotten that the time given for the investigator is for no other purpose but to complete the investigation. Since the suspect is under custody, the investigator needs to show due diligence in using the time given for investigation appropriately. The criminal procedure code stipulates that fourteen days may be given for investigation. This fourteen days is the maximum number of days that may be permitted for investigation. Thus, the court need not necessarily permit all the fourteen days requested in every case. Rather, the court needs to check the particulars of the case and permit the time flexibly based on whether the remaining investigation is simple or complex and the number of days it may require to complete the investigation. Thus, for example, even if the investigating police officer requests fourteen days the court may permit only a day or two or so if the remaining investigation is simple or uncomplicated. However it may also permit the full fourteen days requested if the investigation is somehow complex and the tasks remaining are many or time taking. The code doesn’t limit how many times the fourteen days time may be requested and granted. Some police officers often request the fourteen days time repeatedly. If it is so repeatedly requested and given, it may become not only months but also years. With this regard, the new draft criminal procedure code and the new anti terrorism proclamation has put limit on the maximum period of time that may be given for investigating. There is a potential legal loop hole for human rights abuse if it is not implemented carefully. The other point often raised by investigators is that the suspect may disappear or go out of the country if released on bail. If no other argument is raised that the suspect may interfere in the process of the evidence collection or misapproch witnesses and the only argument is that the suspect may go out of the country, it is possible to release the suspect on bail and to give an injunction order to the concerned authorities temporarily prohibiting any foreign trip out of the country. The other point that needs attention is if the court permits the suspect to be released on bail, the amount of money that is to be secured for the bail must be proportionate with the gravity of the crime suspected and also the capacity of payment by the suspect. Sometimes, prmittng the bail but with an exaggerated amount of money may amount to prohibiting bail. The other point often raised by the police is there are other suspects (accomplice) not yet arrested or being searched .Thus, the now arrested suspect be under custody until all the remaining suspects are arrested. From the point of view of human rights, if a court permits time based on this reason, it is unfair because this suspect is being under custody for the sole reason that other suspects are not yet arrested. This means the suspect may stay under custody if the other suspects are not arrested. The question that comes to a reasonable mind is how long? Finally, if the police informs the court that there is no sufficient evidence on the suspect or there is lack of due diligence on the part of the police doing inestigation, oftentimes courts close the remand file but without saying anything about bail. If no other time is permitted, bail right must be given. Otherwise, the human rights of the suspect may be violated because there is no order that the suspect be released on bail or there is no time given for further investigation. This is a dilemmatic situation even for the police.Thus, there must be order either permitting bail or giving extra time for criminal investigation. If the police frankly assure that there is not sufficient evidence on the suspect, the court may order the release of the suspect even without bail. Thus the writer believes that a remand file should never ever be closed without a clear order.