PROSECUTION v. ABANDIBANA

PROSECUTION v. ABANDIBANA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-03-28 - Case/document no.: RPA 0799/11/HC/KIG - Collection: High Court

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PROSECUTION v. ABANDIBANA [Rwanda HIGH COURT – 2014HC – RPA 0799/11/HC/KIG (Murekatete, P.J., March 28, 2014] Criminal law – Embezzlement – Disciplinary sanction and criminal liability and its penalty against a public employee. – The principle of double jeopardy – Penalty reduction – Suspension of the sentence – Organic Law n° 01/2012/OL of 02/05/2012 instituting the penal code, art. 5, 6,76, 77, 78 and 85,n°21/77 of 18/08/1977 instituting the penal code, 83,85 and 220. Facts: The appellant was found guily of embezzlement by Intermediate Court of Gasabo. When she was working in the quality of Prosecutor General’s Administrative Assistant, she received money from two different persons who wanted to buy an accident case file and assured them that she would provide them with the receipt after the payment was done at Rwanda Revenue Authority. However, upon receiving the money, she kept it for herself. This was known after 4 months when one of the persons wrote to the Prosecutor requesting the receipt. She pleaded guilty and the Court sentenced her to two years of imprisonment. She appealed to the High Court stating that the Court would examin the classificationof the offence for wich she was punished and be ruled that she should have been condemned for breach of trust or waste of public treasury instead of embezzlement. Furthemore, she states that at public service level it was

found that she committed disciplinary fault for which sanctions were imposed and hence she should not be condemned twice for the same offence since it is unlawful. She added that she pleaded guilty at the first instance but the Court denied her the reduction and the suspension of the penalty while she had applied for that. The appellant and her counsel stated that the Constitution of the Republic of Rwanda (article 16), the penal code (article 5, 6, 265 and 302), the Law relating to the rights and the protection of the child (article 56 paragraph 1) and legal scholars should be applied Held: 1. The law sets out people who may commit embezzlement. Those people include who embezzles public or private property or that he/ she received by virtue of his/her office. The appellant admitted that she received money from someone who wanted to but an accident case file but she did not pay the money to Rwanda Revenue Authority as it was agreed and did the same against another individual as she pleaded. It is very clear therefore, that she did so by virtue of her office since she accepted that she would pay the money for them at Rwanda Revenue Authority to provide them with the receipt and did not do that but rather took the money in her interests. She does not deny that she used money for her personal ends while she knew that the money should be deposited to the public account. Therefore,

the required elements of an offence are complete. Moreover the fact of stasting that no audit was done lack s merit since it is done for the mere facts of evidence collection and putting in evidence the quantum of the embezzled property. Therefore, it has nothing to do with the elements of an offence. In addition to this, she pleaded guilty of the money she embezzled 2. Stating that an individual would be punished twice for the same offence if she / he is punished at public service level and bring public action against him/ her cannot ce considered since the letter written to the Prtesident of the Superior Counsel of the Prosecution notiying him of the penalty imposed against her regarding her discipline at work was not a judgment. Rather, the fact

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that the appellant herself states that she was punished at service level for disciplinary fault and the fact she did not provide any reason to prove that an individual punished in such way no public action can be brought against him. Therefore, this appeal statement lacks merit.

3. The fact that the appellant states that his application for the reduction of the penalty was not considered is not true because since the offence she committed is punished by from 5-20 years imprisosnment and a fine not exceeding fifty thousand. In the appealed judgmenet , paragraph 7, it is stated that her guilty plea constitute a mitigating circumstance to be based on so as to reduce the penalties for her pursuant to article 83 paragraph 3 of that Decree Law instituting the penal code above cited. She was sentenced to 2 years of imprisonment. Furtheremore, the fact that the appellant keeps on admitting her acts even though she thought they did not constitute an embezzlement, it is a ground which motivates another penalty reduction. Moreso, the offence had not had serious consequences. As result, article 83 of the law which was into force when the offence was committed should be applied since it provides for the lesser penalty considering article 78 of the law into force., since it stipulates that the penalty may be reduced to one year 4. Additionally, the fact that the appellant was a first offender provided for by article 85 of Organic Law n°01/2012/OL of 02/05/2012 instituting the penal code and even from the time when she was reinstated she kept on behaving well. This has never been contradicted by the Prosecution. Therefore she deserves the suspension of the

penalty. Appeal granted. The appealed judgement changed regarding the penalties only The penalty is reduced to one year The penalty is suspended within the period of two years The appellant should pay the court fees totalling 22800 Frw. Statutes and statutory instruments referred to: Organic Law n° 01/2012/OL of 02/05/2012 instituting the penal code, art. 5, 6,76, 77, 78 and 85, Law n° 15/2004 of 12/06/2004 relating to Evidence and its Production, art.3, Decree law n°21/77 of 18/08/1977 instituting the penal code, 83,85 and 220. No cases was referred Judgment

BRIEF BACKGROUND OF THE CASE [1] At the first instance, the Prosecution filed a claim against Abandibana Thérèsie for embezzlement. The Prosecution alleged that while Abandibana Thérèsie was working in the quality of Prosecutor General’s Administrative Assistant, she received money from two different persons who wanted to buy an accident case file. She assured them that she would pay the money to Rwanda Revenue Authority and provide them with areceipt. However, upon receiving the

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money, she kept it for herself. This was known after 4 months when one of the persons wrote to the Prosecutor requesting the receipt. At the first instance Abandibana pleaded guilty. In deciding the case, the Court found her guilty and sentenced her to 2 years of imprisonment. She was ordered to restitute the embezzled amount to the public treasury when the judgment becomes final. [2] Assisted by Counsel Twajamahoro Herman, Abandibana appealed to this Court stating that the classification of the offence for which she was condemned should be re-examined. and be ruled that she should have been found guilty of breach of trust or wasting of public property rather than embezzlement. She adds that with regard to public services level, it was confirmed that she committed a disciplinary fault for which punishement was imposed and therefore, she would be condemned twice for the same fault while is against the law. She adds that she was heavily penalized even though she unequivocally pleaded guilty and provided grounds for which the imprisonment should not be imposed. She argued that on appeal level the suspension of the penalty should be granted since she had applied it before but not granted. They add that the Constitution of the Republic of Rwanda (article 16), the penal code (article 5, 6, 265 and 302), the Law relating to the rights and the protection of the child (article 56

paragraph 1) and legal scholars should be applied. [3] The Representative of the Prosecution contends that the grounds of appeal stated by Abandibana Theresie lack merit since, at the first instance she pleaded guilty of embezzlement and did not raise any objection related to the classification of the offence in order to be debated. He adds that the required elements of the offence are complete since the money was given to her in quality of trust people had in her resulting from the public duties she was exercising. Furthermore, he adds, the appellant the same as her Counsel should differentiate administrative sanctions from penalties provided for by the penal law. He adds that all the grounds she gives that she should not have been condemned lack merit. With regard to mitigating circumstances, since she states that she is pleading the classification of the offence, then her guilty plea would be groundless. He requests that the penaltiy inflicted to her would be upheld but the Court, in its discretion, would assess whether the reduction and the suspension of the penalty would be granted. [4] The issues to be examined reflect the assessment of the basis of the grounds of appeal.  The classification of the offence for which she was convicted.  Regarding the penalty and the principle of double jeopardy.  The penalty reduction  The suspension of the penalty II.ANALYSIS OF THE ISSUES OF THE CASE A. Regarding the classification of the offence

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[5] Abandibana Theresie alongside with Francois, the Counsel, state that they do not agree on the classification of the offense for which he was sentenced on the first instance since, she declared, her acts or behaviors do not constitute embezzlement. They explain that Abandibana was not a cashier in her daily activities. They add that the fact that she was given money to be paid and the fact that she did not pay it would constitute breach of trust because she assured those who gave to her the money to be paid on their behalf and provides with them the receipt, otherwise it would be wasting the public treasury. They state that they base their arguiment on the writings of the legal scholar, one Frederic Africa in his booklet Isesengura ry’icyaha ˶ cy’ubuhemu, ubwambuzi bushukana, kurigisa bikozwe n’umukozi wa Leta n’icyo gutangira ubusa ibya Leta on page 23 where he states that embezzlement is committed against the public ˵ property. He adds that the Court would assess that for justice to be done for her. They add that following the provisions of article 16 of the constitution, breach of trust would be tried by the Mediation Committe [6] The Representative of the Prosecution contends that the classification of the offence would not be considered by the Court since it was not raised for debate at the first intance. Rather Abandibana pleaded guilty of embezzlement. He adds she had

no way through to state that the constituting elements of the offence are not complete since she was given money basing on the mere fact of trust rooting in the duties she was exercising. Furthermore she was supposed to deposit money on the account of public treasury. On the contrary she did no t do so but preferred to receive it and keep it for herself. The Representative of the Prosecution adds that the writings of the legal shcolars can help him with nothing since they never replace the law when it is clear. [7] The Court notes that, with regard to embezzlement, article 220 of the Decree law n°21/77 of 18/08/1977 instituting the penal code ( which was applicable at the time of the commission of the offence and at the time of hearing) sets out people who may be prosecuted for that offence. In its point 1, it states : whoever embezzles public or private property, funds, negotiable instruments, documents, or movable property which are entrusted to him/her, by virtue of his/her office or he/ she received because of the trust they have in him based on his office. Abandibana pleaded guilty on first intance and even explained its commission ( referrence is made to paragraph 3 of the appealed judgment) where he stated that a person came to buy an accident case file and because it was night he handed money to her to pay it to Rwanda Revenue and the following day she did not pay it

and bring a receipt as as they agreed upon. She added that she did the same for another individual. She pleaded accepting that she had a bad performance at work. [8] Basing on circumstences under which the offence was committed, the acts that Abandibana committed of receiving the money by virtue of the office she occupied since she accepted that she would pay it at Rwanda Revenue Athority and give them the receipt and the fact that shed id not do so, and even she never refuses that she used the money in her personal interests shows that the constituent elements of an offence are complete. Therefore she cannot state that she could not be punished for the offence even though she said she had had no bad intention. This is rather baseless since she did not do what she was supposed to do instead she used the money in her personal ends while she knew that the money should be deposited on the public treasury account. Furthermore, aguing that no evidence justifies that she committed imbezzlement without having audit done, lacks merit since audit is done with the aim of

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evidence collection and figuring out the quantity of the embezzled property. It has nothing to do with the constituent elements of an offence (éléments de l’infraction). In particular, it was not needed in this case as long as Abandibana admitted the amount of money she has embezzled for the sake of her individual interests. This is what has been explained by the legal scholar, AFRICA Frédéric in his book referred to in this judgment in paragraph 5 where he was analysing article 220 which provides for embezzlement and its penalties, he stated, by virtue of the trust people have in him based on his office,…it means that she managed to gain that property because of the position she was occupying which assures his trust among people. The scholar continues stating that embezzlement is committed while someone is exercising public duties (service offences) and the one who commits it should be a civil servant, an officer in charge of receiving and issuing the legal documents, any person in charge of public service. This is thererfore the starting point where those who trusted and left him the money since he herself assured them to come back and get the receipts after the money was paid to Rwanda Revenue Athority. [9] She states that she would have been prosecuted for breach of trust or wasting of the public property based on article 16 of the Constitution of the Republic of Rwanda

which states that all human beings are equal before the law and that they shall enjoy, without any discrimination, equal protection of the law; apart from the fact that she does neither indicate the relevance of that article with the offence for which she was sentenced to nor she shows that the rights imbodied therein which had been infringed even though it is not this aricle that she challenges.Therefore, this ground of appeal lacks merit. B. Regarding the penalties and the principle of double jeopardy [10] Abandibana and her counsel argue that the Court punished her for embezzlement while she was punished at the public service level when she was presenting her defense before the Superior Counsel of the Prosecution which realised that the acts she committed constitute a disciplinary fault. They insist that she should not be punished again for the same fault since it would be a double jeopardy while it is unlawful. Furthermore, she contends that the Superior Counsel of the Prosecution waived criminal ction against her. They state that they base their arguiment on articles 5 and 6 of Organic Law n°21/2012 of 02/05/2012 instituting the Penal Code. [11] The Representative of the Prosecution disputes that the appellant and her counsels confuse disciplinary and. Criminal sanction. He adds that they do not indicate the law stipulating that disciplinary sanction waives the action of

the prosecution. She does not even show the decision of the Superior Counsel of the Prosecution which exonerated her from criminal liability rather it ordered to bring prosecution against her. The provisions of the law she raises are irrelevant to the facts of the case. [12] The Court notes that article 3 of the Law n°15/2004 of 12/06/2004 . The fact that Abandibana states that she is going to be punished twice for the same offence lacks merit since she does not indicate another final judgment which condemned her on the same offence since the letter N°I/06/D11/A/ONPJCS dated June 24, 2009 written to the President of the Superior Counsel of the Prosecution niticing him of the sanction imposed because of her bad behaviors in service is not a judgment .Most of all, the administrative sanction imposed on her far differs from the provisions of the law she invokes since she does not manage to indicate two penal law

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stated in article 5 of Organic Law n°01/2012/OL of 02/05/2012 referred to above to indicate the special law punishing embezzlement which was applied. Rather her statement inciminates her since she explained that at service level she was for disciplinarily punishements were imposed on her and never demonstrates that no prosecution can be brought against someone who was sanctioned in that wa at all. Therefore this ground of appeal is set aside. C. Regarding the mitigating circumstance [13] Abandibana Thérèsie with her Counsel state that from the first instance she unequivocally admitted and explained the faults she had committed. They add that she should have benefitted reduction of the penalty based on that mitigating circumstance. She states that she has the kids including one with mental desability.They state that the judge desregarded the provisions of article 56 of the Law n°54/11 relating to the rights and the protection of the child. She requests therefore to be fined or be sentenced to under 5 months of imprisonment. [14] The Representative of the Prosecution contends that the grounds of the penalty reduction presented by the appellant are not special rather general and should not allege them. He adds that the law on the right of the child she is alleging cannot replace the penal law. He disputes that her initial guilty plea is no longer valid since, she now states that

the offence must be reclassified. Therefore her guilty must not be the basis fro the penalty reduction. She requests the Court to examin that in its discretion. [15] The Court finds that article 220 of the Decree law n°21/77 of 18/08/1977 instituting the penal code which was into force at the time of the commission of the offence provides that the applicable penalty for embezzlement ranks between 5 years and 20 years of imprisonment and a fine not exceeding fifty thousands . Even though she ststes that the mitigating circumstances she presented were not considered in the first instatnce, the Court notes that it is not substantiated since in the appealed judgment on paragraph 7, that Court held that her guilty plea constitutes the mitigating circumstances and consequently the base of the penalty reduction pursuant to article 83 point 3 of that decree law instituting the penal code cited above. She was then sentenced to 2 years of imprisonment. [16] Article 76 of the organic law n°01/2012/OL of 02/05/2012 instituting the penal code provides that the The judge may consider the appropriateness of mitigating circumstances which preceded, accompanied or followed an offence. The fact that Abandfibana. just at the first instance, pleaded guilty at the very beginning of the proceeding and even now keeps on demostrating the Court that she pleades guilty of the acts she committed even

though at appeal level she thought that they do not constitute embezzlement but rather breach of trust, the fact of not rejecting the charges against constitutes the mitigating circumstances to be based on so as to reduce the penalty for her in the manner provided for by article 77 of the cited Organic Law. Furthermore, the fact that the offence did not cause serious consequences as it is provided for by article 83 of the decree law instituting the penal code cited above since the one which provides for lesser penalty considering article 78 of the penal code now into force which states that the penalty can be reduced to one year of imprisonment. The Court therefore notes that it is the penalty she deserves The application made by Abandibana concerning to be fined only or or the penalty of 5 months only lacks merit since it would be illegal. D. Regarding the suspension of the penalty

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[17] Furthermore, Abandibana applied for suspension of the penalty stating that her application was rejected by the first instances Court.The grounds she base her application are that she has got a baby of 8 months and some other under her care.She adds that she was reinstated at work and she is behaving well and well marked [18] The Representative of the Prosecution states that the Court would assess whether the suspension of the penalty would be granted. [19] The Court found that article 85 of the decree law n°01/2012/OL of 02/05/2012 instituting the penal code provides that the suspension of the penalty is the suspension of penalty is a judge s‟ decision to order the stay of execution of a penalty of imprisonment not exceeding five (5) years if the convict has not been previously sentenced to imprisonment or to community service as an alternative penalty to imprisonment of more than six (6) months as a result of a final judgment. Pursuant to this article, the fact that Abandibana has never been condemned before for any other offence stated in that article justifies that and show that since she is reinstated at work she behaves well and that this is not contradicted by the prosecution, lets understand that the suspension of the penalty would be granted III.THE DECISION OF THE COURT [20] Decides that appeal filed by Abandibana Thérèsie has merit [21] Decides that the judgment RP 0216/10/TGI/GIC is not changed except only for penalties. [22] Decides that the penalty inflicted to Abandibana Thérèsie is reduced from 2 years inflicted to her by the first instance Court to one years. [23] Orders that one years of imprisonment inflicted to her is suspended for 2 years. [24] Orders Abandibana Thérèsie to pay the court fees totalling twenty two thousands eight hundred.