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«PENAL CODE OF THE STATE OF ERITREA Published in 2015 Printed at Sabur Priting Services CODIFICATION OF THE PENAL CODE OF THE STATE OF ERITREA The ...»

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PENAL CODE

OF THE STATE OF ERITREA

Published in 2015

Printed at Sabur Priting Services

CODIFICATION OF THE PENAL CODE OF THE

STATE OF ERITREA

The Government of Eritrea mandated the Ministry of Justice

to draft a Penal Code for the State of Eritrea. The Ministry, to

which the drafting of legal codes is entrusted by law,

commenced the drafting process by assembling a team of international experts in the field of criminal law to work in tandem with a national Law Reform Committee composed of Eritrean legal professionals. The Law Reform Committee was instructed to prepare a draft code that was concise, accessible and consistent with the values and aspirations of the Eritrean people.

Countless meetings, correspondences, and studies of both customary law and practice in Eritrea and the experience of other nations culminated in the production of a preliminary draft penal code. Following the submission of the draft, the Ministry of Justice convened the principal stakeholders engaged in the administration of the criminal justice system in order to solicit comments and suggestions on the draft document.

This was followed up with a series of meetings involving Judges, Public Prosecutors, attorneys, law lecturers, police officials and other legal professionals before being presented for discussion and input at various consultative meetings.

As with all systems of law, this penal code will be amended and updated from time to time to be reflected in the society at large. But there can be little doubt that it provides a solid foundation for ensuring a secure, stable and peaceful Eritrea.

Fawzia Hashim Minister of Justice Asmara, Eritrea May 15, 2015 PRELUDE The Penal Code that was imposed on the Eritrean people more than half a century ago was alien to the values and traditions of the Eritrean society. That same Penal Code, has, however, remained the principal penal statue in Eritrea with the enactment of Proclamation No. 3/1991 which made modest efforts to introduced amendments to it and enact same as the Transitional Penal Code of Eritrea.

We now have taken sufficient time to enact laws reflecting the values and norms of our society and enjoy the freedom to measure the advancement of our laws in light of contemporary world affairs. In this regard, therefore, it was inexorable that a new Penal Code rectifying the aforementioned gaps be put in place.

First and foremost, Eritrea is renowned for being a treasurenation of age-old, self-advanced customary laws. These customary laws embodied, inter alia, principles of penal law, based on peaceful settlement of certain criminal acts that we today have found to be fitting for incorporation into the penal law for independent Eritrea. It was, thus, imperative, over and above the 1991 amendments, that we review the Penal Code which was currently in force, in light of the traditions of our societies as revealed in the customary laws. This required us to embody the workable penal principles of our customary laws into the new Code.

Second, our penal laws needed to contain provisions for crimes sprouting out of advancements in technology and the complexity of human life in the new millennium. Notable in this context are computer crimes, crimes committed against aircrafts and advanced crimes related to narcotics. We had to provide for these and related offences.

Third, a notable feature in our penal laws has been the provision of a single, general definition for the offences without classifying the offences into various degrees of gravities of their commission thereby creating difficulties in interpretation of the severity of the particular criminal act on trial. To this we had to stratify offences, whenever necessary, by the gravity of their commission.

Fourth, a feature related to the foregoing has been the wide, often very wide, range between the minimum and maximum punishments provided for the offences thereby leading to uneven, unpredictable and subjective sentencing patterns. The classification, in this new Code, of offences by the gravity among themselves and by the gravity of the manner of commission of the respective offences has, however, enabled the establishment of graduated levels of punishments of narrower ranges. Such stratification of punishments into various levels of narrower ranges, a principle also extant in the tradition of our customary laws, is believed to give way to a uniform, predictable and objective sentencing tradition in our benches.

Finally, the incorporation of offences of international impacts into our penal statutes necessitated paralleling the sentences contained in same statutes with the general trend of sentences provided to such offences in the community of nations in order that equivalent sentences may be in any of the nations with appropriate jurisdiction, Eritrea inclusive.

It is with hope, therefore, that it will contribute in securing the peace and order of our country and in establishing an equitable, predictable and consistent criminal justice system discernible by the general public that this Penal Code of Eritrea has been enacted.

PENAL CODE OF THE STATE OF ERITREA

PART I - THE GENERAL PART





BOOK I - OFFENCES AND THE OFFENDER

Chapter 1. - Scope and Application…………………….…..…….…..1 Art. 1. - Short Title and Repeal………..……….……..…….…1 Art. 2. - Purpose………………………..……………..……..…1 Art. 3. - Entry into Force……………...……………….…..…..1 Art. 4. - Transition…………………...…………………..….…2 Art. 5. - Application to Other Laws………...……………...…..3 Art. 6. - Definitions and References………...………….…..…..4 Chapter 2. - Principles of Criminal Liability……………………..….8 Art. 7. - Principles of Legality…………………………….........8 Art. 8. - Principle of Personal Liability………...…………….10 Art. 9. - Principle of Criminal Fault……………...…....……...10 Chapter 3. - Elements of Criminal Responsibility…………………...10 Art. 10. - Elements of Conduct……………………………….10 Art. 11. - Causation…………………………………………...10 Art. 12. - Elements of Criminal Fault………………………..11 Art. 13. - Definition of Criminal Intent……………….…...…11 Art. 14. - Guilt in Case of Combination of Offences………....12 Art. 15. - Definition of Criminal Negligence…………....……13 Art. 16. - Express Requirement of Negligence………...…….13 Art. 17. - Strict Liability……………………………………...14 Chapter 4. - Absence of Criminal Responsibility…………………….14 Art. 18. - Age of Responsibility………………..…….……….14 Art. 19. - Involuntary Conduct………………..…….…….….14 Art. 20. - Intoxication………………………………....……....14 Art. 21. - Mental Impairment……………………….…..……15 Art. 22. - Limitation on Consent……………..………………16 Art. 23. - Mistake of Fact………………………….……....….16 Art. 24. - Ignorance of the Law………………………...…….16 Art. 25. - Absolute Coercion………………………………….17 Art. 26. - Resistible Coercion………………………...….……17 Art. 27. - Necessity…………………………………........……18 Art. 28. - Excess of Necessity………………………………...18 I Art. 29. - Self-Defense and Defense of Another…………..….18 Art. 30. - Defense of Property…………………………….......19 Art. 31. - Excess in Self- Defense…………………………….19 Art. 32. - Authorized Acts………………………...….........…..20 Art. 33. - Professional Duty………………...…………….…..20 Art. 34. - Responsibility of A Person Giving an Order….…..20 Art. 35. - Responsibility of the Subordinate………………….21 Art. 36. - Mistake in Defences………………………………..21 Chapter 5. - Participation in Offences……………………………...22 Art. 37. - Participants……………………………………...…22 Art. 38. - Secondary Participants

Art. 39. - Non-Transmissibility of Personal Circumstances…..23 Art. 40. - Business Organizations…………………...………..23 Chapter 6. - Attempted Crimes…………………………..…………24 Art. 41. - Attempts……………………………...……….……24 Art. 42. - Punishments for Attempts…………...……….……24 Chapter 7. - Jurisdiction…………………………………………...25 Art. 43. - Jurisdiction - Offences Committed On Eritrean Territory…………...…………………….25 Art. 44. - Jurisdiction - Offences Committed Outside of Eritrean Territory…………………………...….25 Art. 45. - Limitation on Punishment…………………………27 Chapter 8. - Limitations on Prosecutions……………………….…..27 Art. 46. - Limitations on Bringing Prosecutions………….…27 Art. 47. - Suspension of Limitation on Bringing Prosecutions……..……...……………….….……...28 Art. 48. - Limitations on Executing Punishments………...…28 Chapter 9. - Discontinuance and Extinction of the Prosecution and the Penalty………...…………………………………29 Art. 49. - Right of Complaint or Accusation in General…….29 Art. 50. - Offences Depending Upon a Formal Complaint…..29 Art. 51. - Right to Preferring of Charges……...…………….29 Art. 52. - Collective Complaint….………………………...….30 Art. 53. - Time within Which to Preferring Charges and Formalities………………...……………………….30 Art. 54. - Withdrawal of Preferring of Charges……….……..31 Art. 55. - Indivisibility………………………………….…….31 II Art. 56. - Suspension of Limitation on Executing Punishment………………………………..………31 Art. 57. - Death of the Accused, the Offender or the Injured Person…...………………………………...32 BOOK II – PUNISHMENT Chapter 1. - General Provisions…………………………………....33 Art. 58. - Purposes of Sentencing…………………………….33 Art. 59. - Proportionality of Sentences……………....……….33 Art. 60. - Presumption against Imprisonment…………….…33 Art. 61. - Authority of the Court in Determining Sentence….…………….………..………….……….34 Chapter 2. - Authorized Sentences…………………………………34 Art. 62. - Authorized Sentences……………………...….……34 Art. 63. - Classification of Offences…………………....……...35 Art. 64. - Limitations on Capital Punishment……….………35 Art. 65. - Fines, Imprisonment and Capital Punishment….....37 Art. 66. - Determination of Sentence………………...…….…39 Art. 67. - Aggravating Circumstances……..…………...….…40 Art. 68. - Mitigating Circumstances……………………....….42 Art. 69. - Cumulative Punishment for a Single Act……..…...43 Art. 70. - Retrospective Concurrence…………………...……44 Art. 71. - Imprisonment as Punishment for Multiple Offences…….………………….………..…………. 44 Art. 72. - Imprisonment in Cases of Recidivism……...……....46 Art. 73. - Conditions of Imprisonment……………………….46 Art. 74. - Service and Computation of Sentence of Imprisonment………………………..……..………47 Art. 75. - Conditional Release…………………………...……48 Art. 76. - Persons to be Informed of Provisions Regarding Conditional Release…..….……………….………....49 Art. 77. - Fines………………………………………………..49 Art. 78. - Restitution to Injured Persons…………………….50 Art. 79. - Priority of Payments……………………………….51 Art. 80. - Failure to Pay…………………………………...….51 Art. 81. - Confiscation and Forfeiture………………………..52 Art. 82. - Suspension of Sentence and Probation…………….53 III Art. 83. - Placing Under Supervision………………………...55 Art. 84. - Withdrawal of Official Papers……………………..55 Art. 85. - Guarantee of Good Conduct……………………….55 Art. 86. - Legal Effects……………………………………….56 Art. 87. - Revocation of Probation and Execution of Suspended Sentence…...……..……………….…….56 Art. 88. - Community Work………………………………….57 Art. 89. - Deprivation of Civil Rights………………………...58 Art. 90. - Effects of Deprivation of Civil Rights……………..59 Art. 91. - Reinstatement of Civil Rights……………………..60 Art. 92. - Prohibition of Certain Occupations and Entitlement to Hold Permit and/or License.............61 Art. 93. - Prohibition from Visiting Certain Places…………61 Art. 94. - Prohibition to Settle Down or Reside in a Place….62 Art. 95. - Obligation to Reside in a Specified Place or Area…62 Art. 96. - Additional Punishment for Offences of Public Corruption

Art. 97. - Expulsion of Aliens………………………………...63 Art. 98. - Punishment for Criminal Violations of Rules and Regulations…………....……………………….64 Art. 99. - Disposition of Defendants Found Not Responsible.....64 Chapter 3. - Punishment of Young Offenders and Irresponsible Persons…………………………………….…..……...65 Art. 100. - Definitions…………………………….…………..65 Art. 101. - Measures Applicable to Child Offenders…………65 Art. 102. - Treatment of Juvenile Offenders Who Do Not Require Deterrence or Reformation……………...66 Art. 103. - Punishment of Juvenile Offenders Requiring Deterrence or Reformation……..………………....67 Chapter 4. - Pardon ………………………………………………68 Art. 104. - Pardon and Commutation………………………...68 Art. 105. - Amnesty…………………………………………..68 Art. 106. - Effect on Civil Actions……………………………69 IV

PART II - THE SPECIAL PART

BOOK I – OFFENCES AGAINST INTERNATIONAL



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