CHAPTER FOUR

Prosecution Responsibility and Preliminary Inquiry

4.1. Prosecution Responsibility
One of the key activities undertaken in the criminal procedure is prosecution. Prosecution is
initiation of proceeding. The public prosecutor has the task of initiating the prosecution (art. 40
of CPC). The CPC contains provisions regulating the manner of deciding whether to charge or
not(Read articles of CPC 38- 48). For example after police investigation is concluded and
transferred to Public Prosecutor as per article 37 of CPC, it is up to the public prosecutor to
scrutinize the police investigation file to determine the presence of sufficient evidence to prove
guilt. The prosecution office should not rush to frame charge. The available evidence has to be
evaluated. If there are points not clarified, a further investigation has to be ordered (art. 38(c )). It
may also order preliminary Inquiry be held ( Article 38(b). Or it may by order close the file as
per article 42(1a).
Regarding the decision to prosecute or not prosecute- countries follows different Approaches.
Mandatory Principle of Prosecution Approach - is a compulsory or mandatory approach to
resort to prosecution whenever there is adequate evidence to convict a person. The public
prosecutor lacks the discretion to drop cases on the grounds of public interest. This approach
criticized for it increases the burden of courts.
Discretionary principles of prosecution Approach- In this approach the prosecution is
accorded wider autonomy in the decision to prosecute or not to prosecute considering public
interest. It has the benefit of reducing court burden. However, it is criticized for be open to
abuse. Even in countries favoring discretionary prosecution like United States jurisdictions and
United Kingdom, there is a possibility of judicial review in case the public prosecutor abuses its
power. Some jurisdictions like Germany try to take a mid-way approach to neutralize its negative
effect.
In Ethiopia, the decision to prosecute or not to prosecute has now been left to the public
prosecution office. The Federal Attorney General Establishment Proclamation No- 943/2016
provides the power and duty of the Federal Attorney General.
Regarding the investigation and decision concerning investigation it provides as follows:-
Article 6 of the proclamation provides the following powers and duty of Attorney General(AG.)
 Causes criminal investigation to be started ( Article 6(3)(a)
  Follow up report to be submitted on an ongoing criminal investigation, the
investigation to be completed appropriately,
 Orders discontinuation or restart of discontinued investigation on the basis of public
interest or when it is clearly known that there could be no criminal liability,
However, who decides that there is public interest when AG decides discontinuation or restart of
investigation? This issue is unclear under the provision.
Any way once the Public Prosecutor ordered the discontinuation of criminal investigation, the
available solution is that -anyone aggrieved has to follow the hierarchical channel till the general
attorney, now head of the Ministry of Justice and justice bureau heads at the federal and regional
levels, respectively.
 Ensures that investigation is conducted in accordance with the law, gives the
necessary instruction;
 Reviews completed investigation files based on evidence and law and gives no
case or closing decision where condition provided under the criminal procedure
law are met; ( This is similar with article 38( c) of CPC)
 d) Determines guilty plea(?), conducts plea bargaining(?), decides alternative actions
to be taken, follows the implementation.
4.2 Preliminary Inquiry (CPC article 80-93,- Student must read themselves)

Chapter Five: -Charge (CPC Article 108-122)

After the public prosecutor decided that there is sufficient evidence to warrant conviction, the
next step is preparation of a charge. The charge has to fulfill technical and legal requirements to
facilitate the trial process.
5.1 Framing the Charge: Form and Content (CPC article 111)
The purpose of a charge is to tell an accused person as precisely and concisely as possible of the
matter with which he is charged and must convey to him with sufficient clearness and certainty
what the prosecution intends to prove against him and of which he will have to clear himself.
It must conform to what provided under article 111, 112, and the ffg. See the Second
Schedule annexed to the code.
 Article 113 alternative charges,- 113(1) is at preparation of the charge, hence it under
Public Prosecutor option to charge as such, whereas 113 (2) comes after hearing and it
 is courts’ decision not of Public Prosecutor. Here, the court convicts the suspect if it is
less gravity. If greater gravity, no way to convict him. So what?
 Article 116 different count of charges.. It has no limits under the code.. hence, may be
2,3,…5….9 or 10 count in a single charge.
 Article 117 joinder of charges
 Bear in mind that evaluating fulfillment of elements of the crime as provided under criminal
law and identifying under which specific provision of criminal law it falls is task of Public
Prosecutor when s/he prepares the charge. Such task includes evaluating of evidence and
identifying every ingredient of the act committed in line with each element of crime.
Exercise:- As an example let you to try to identify the difference between Article 665(1) from
article 682 of Criminal code. What elements of crime differentiate them from each other?
5.2 Amendment of Charge (CPC Article 18-119)
Prosecutors are human beings. It is possible to make error during the preparation of a charge. As
a result the code allow amendment charge. But, it should be made before judgment is given. The
order could be given upon the initiation of the court, prosecution, or accused. The question here
is that: Can public prosecutor ask amendment of charge to cite more severe provision of criminal
law or to add another count? Practically there are opposite argument. Those argue that article 119
must be interpreted by evaluating whether the justice is likely to be defeated by the error or not?
The say ‘Justice’ is for both party to litigation, not only for accused. Others argue that the article
permit amendment only for benefit of the accused. Hence, if the amendment will put the accused
in more severe liability, must not be allowed.
The CPC is not clear with regard to the ground for amendment. It seems to benefit the
accused. Hence, it seems to prohibit amending the charge to cite a more severe penal provision.
5.3 Withdrawal of Charge (Article 122 of CPC)
As per article 122 Court permission is mandatory to withdraw charge already instituted.
However, this article is repealed during Transitional government and now replaced by The
Federal Attorney General Establishment Proclamation No- 943/2016 which provides that:-
The Attorney General (AG) has a power to withdraws charge when found necessary in the
interest of the public, resumes withdrew charge. However issues directive concerning the
withdrawal of cases having national interest with consultation of the Prime Minister” (Article
6(3)(e) of the proclamation
Hence, currently there is no need of court permission to withdraw charges.