Published on: 05th March 2026
Authored by: Haftom Endrias Weldegergs
Aksum University
Court: Federal Supreme Court of Ethiopia
Bench: Cassation Bench; Birhanu Amenew, Beewket Belay, Kenea Kitata, Birhanu Mengistu, and Marta Teka.
Date of Judgment: March 26, 2016 E.C/ April 4, 2024.
Relevant Provisions: Article 23 of the FDRE Constitution, articles 2(5) and 34(1) of the Criminal Code of Ethiopia, and articles 100(1) and 120(1) of the Federal Tax Administration Proclamation No. 983/2016.
Brief Facts:
The case was initiated in the Amhara Region Debub Welo High Court by the Amhara region Debub Wolo zone Public Prosecutor, representative of the respondent, against the applicant and his two employees for the crime of carrying out a transaction without issuing an invoice contrary to Article 120(1) of the Federal Tax Administration Proclamation No. 983/2016.[1] The Debub wolo High Court decided that the applicant be punished with a fine of birr 30,000. Consequently, the applicant filed an appeal in the Regional Supreme Court of Ethiopia, and their case was dismissed by such Court as not appropriate. Dissatisfied again, the applicant applied to the Federal Supreme Court’s Cassation Bench, arguing that he was punished with a fine of birr 15,000 as an administrative penalty by the Ministry of Revenue, Combolcha district, and the lower courts made a basic error of law by punishing him for a second time for the same crime against the prohibition stipulated under article 23 of the FDRE Constitution.[2]
Issues:
- Is a juridical person qualified under article 34(1) prohibited to conduct transactions without invoice?
- Does the case fall under article 2(5) of the criminal code and article 23 of the FDRE Constitution?
- Does the fact that an administrative penalty was imposed on the applicant by itself bar criminal proceedings?
Arguments:
Applicant’s Arguments
- The case was tried by administrative tribunals, and an administrative penalty had been imposed on the applicant. Therefore, the criminal proceeding initiated in the lower courts disregards the prohibition of double jeopardy stated under article 23 of the FDRE Constitution and article 2(5) of the Criminal Code of Ethiopia.[3]
- It is unfair to punish the applicant for transacting without invoice while the applicant has fixed notices on the business cites in a clear manner that customers shall not pay bills without receiving invoices.
- It is unfair to punish the applicant who operates a company by employing workers, not personally, while the employee has been acquitted for the fact that he persuaded the court that he was absent at the time of commission of the crime.
Respondent’s Arguments
- Administrative Penalties are independent measures imposed by administrative agencies or tribunals, not courts.
- Article 23 of the FDRE Constitution and article 2 sub article 5 of the Ethiopian Criminal Code relate only to Criminal trials and convictions, not administrative penalties.[4]
Judgment:
The Court held that the lower courts made no error of law in proceeding with the criminal proceedings instituted against the applicant since the objections raised by the applicant does not satisfy the requirements of the principle of double jeopardy stipulated under article 223 of the FDRE Constitution as well as article 2(5) of the criminal code of Ethiopia, and it was proved beyond reasonable doubt that the applicant committed the alleged crime.
Ratio Decidendi:
Article 120(1) of the Federal Tax Administration Proclamation No. 983/2016 provides that any tax payer with an obligation to issue a tax invoice, carrying out transaction without issuing invoice is punishable with a fine of birr 25,00 to 50,000 and rigorous imprisonment for a term of three to five years.[5] In the case at hand, the applicant was found, in the opinion of the court, to be obliged to issue an invoice. In addition to that, the fact that an accused has received an administrative penalty is not by itself a bar to the institution of criminal proceedings against the same person. This rule is clearly expressed under the proclamation by which the applicant had been accused. It provides that where an act or omission entails both administrative and criminal liabilities at the same time, the person committing the offence shall not be relieved from criminal liability by the mere fact that he was administratively held liable.[6] Moreover, for a person to invoke the right against double jeopardy under articles 23 of the FDRE Constitution and Article 2(5) of the Criminal Code of Ethiopia, all the tests and requirements needed to be satisfied under these specific provisions must be unequivocally satisfied.[7]
Final Decision:
The Federal Supreme Court’s Cassation Bench ruled in favor of the respondent, and held that the lower courts’ decision, the decisions of the Debub Wolo High court and the Amhara Regional Supreme Court, on the Case was proper and constitutional, and as a result the court confirmed the decision of the lower courts convicting the applicant and punishing with a fine of birr 30,000.
Analysis/My Reflection
While I support the legal reasoning held by the Federal Supreme Court’s Cassation Bench, I have observed the court’s failure to critically examine and assert whether the applicant was obliged to issue invoices or not. The court mistakenly assumed that a juridical person conducting economic activities and duly established under the relevant law is obliged to issue invoices when carrying out transactions. But under the Ethiopian tax law, it is not any person carrying out economic transactions required to issue invoices; rather, the persons obliged to issue invoices under the VAT proclamation are only required to issue invoices. According to the VAT proclamation, only VAT-registered persons are the persons required to issue invoices.[8] The court should have framed this issue after ascertaining that persons who fail to issue invoices in carrying out transactions while obliged under the law to do so are punishable, before proceeding with the other issues, as appropriate.
As for the ruling of the court that the preliminary objections raised by the applicant don’t fall under article 23 of the FDRE Constitution and article 2(5) of the criminal code, it is obvious that the constitution uses the phrase criminal law and criminal procedure. This means persons who have been held liable under the criminal law and criminal procedure are protected under this article of the constitution.[9] Otherwise, it is not possible to let an accused free on the mere fact that he has been punished administratively. After all, this constitutional provision should not be used to shield persons from liability, but rather to protect them from unjustly repetitive punishments for the same crime. Even though the criminal law provision, which just reads “persons convicted, acquitted, or subjected to other measures by a final decision in accordance with the law shall not be tried again”, is a bit vague on face value, we should interpret that sentence in line with the constitution, as any law which contravenes the constitution is null and void.[10] Furthermore, the fact that an administrative penalty shall not be used as a pretext to escape punishment under the criminal law is firmly established under the law by which the applicant was held liable.[11]
Given the precedence of the Federal Supreme Court’s Cassation Bench decisions in Ethiopia, this case will have paramount importance in resolving prospective cases involving similar legal issues and questions raised in this case, even though similar decisions which are consistently rendered with this decision by the same bench existed before.[12]
[1] Tax Administration Proclamation No 983/2016, Federal Negarit Gazeta, Year 22, No 104, art 120(1).
[2] FDRE Constitution, Proclamation No 1/1995, Federal Negarit Gazeta, Year 1, No 1, art 23.
[3] FDRE Constitution, Proclamation No 1/1995, Federal Negarit Gazeta, Year 1, No 1, art 23; Criminal Code of the Federal Democratic Republic of Ethiopia Proclamation No 414/ 2004, article 2(5).
[4] Ibid.
[5] Tax Administration Proclamation No 983/2016, Federal Negarit Gazeta, Year 22, No 104, art 120(1).
[6] Tax Administration Proclamation No 983/2016, Federal Negarit Gazeta, Year 22, No 104, art 100(1).
[7] FDRE Constitution, Proclamation No 1/1995, Federal Negarit Gazeta, Year 1, No 1, art 23; Criminal Code of the Federal Democratic Republic of Ethiopia Proclamation No 414/ 2004, article 2(5).
[8] Value Added Tax Proclamation No. 1341/2024 (FDRE), Federal Negarit Gazette, 21 August 2024, art 52(1).
[9] FDRE Constitution, Proclamation No 1/1995, Federal Negarit Gazeta, Year 1, No 1, art 23.
[10] FDRE Constitution, Proclamation No 1/1995, Federal Negarit Gazeta, Year 1, No 1, art 9.
[11] Tax Administration Proclamation No 983/2016, Federal Negarit Gazeta, Year 22, No 104, art 100(1).
[12] Federal Courts Proclamation No.1234/2021, article 26/ 3.
