By Lucy Kassa
Lideta federal high court has reversed the cyber crime sentence previously passed by a first instance court against Yonas Kassahun, a diaspora with a German citizenship who was alleged to have committed the crime against Akiko, Orchid business group owner.
The High Court reversed the lower court’s decision, diverting the article, which was applied to the case on hand from article 707(2) to article 706 of the criminal code. By doing this, the court reduced the rigorous imprisonment sentence of two years into a simple imprisonment of six months, thereby releasing the defendant through suspension, noting that the crime is governed by article 706 of accessing computer system without authorization not by article 707(2) because the Lower Court was not provided enough evidence to confirm that the data had been deleted, an aggravating element under article 707(2)(a).
The High Court rejected the Lower Court’s decision regarding the punishment aggravating circumstance that the accused was suspected of a previous crime of theft, recalling the criminal law’s principle that every suspect is presumed innocent until proved guilty. However, it considers mitigating circumstances that the accused is a father of two and comes to invest in Ethiopia.
Yonas was accused by a public prosecutor based on article 707(2) (a) of the criminal code, which provides less than five years rigorous imprisonment and a fine not exceeding 20,000 Br to anyone who, without authorization accesses a computer system and intentionally causes damage by adding, altering or deleting data; executes any scheme or wrongfully controls or obtains money, property, computer services or any data.
The prosecutor alleged that the accused had accessed the victim’s email without her consent through an unidentified system and transferred business related data found in her account to another account, deleting the data from her account. He was also attempting to extort 50,000,000 Br from the victim in return for her data, the prosecutor claimed.
As evidence, the public prosecutor had presented oral and expert witnesses. Akiko, the victim and other witnesses had testified that the accused was trying to extort 50,000,000 Br from Akiko in exchange for the data he took from her by accessing her email using Russian and Germen technologies without her consent. Documentary evidences were presented from FDRE Information Network Security Agency (INSA) that through unknown methods, Yonas had sent the data from Akiko’s email, Soldan@eim.ae, to a third party’s email, email@example.com. The prosecutor had also presented ethio telecom’s evidence that they were in contact via phones at around the time the crime was committed.
For his side, Yonas raised the defense that being in a close business and intimate relationship with the victim, they had to use an e-mail account jointly and that he had obtained the victim’s consent to use her e-mail. But when she denied payment for the construction materials he rented to her, he found out in her e-mail that she was committing money laundry crime, he alleged. He subsequently took the data to another account he had opened and he notified the Ministry of Justice about the crime. A software engineering professional testified that INSA’s evidence does not show whether the password was taken by the consent of the victim or not, rather the two were exchanging data willingly.
Hearing the arguments and examining the oral and documentary evidence, the Lower Court passed a guilty verdict on the accused based on article of 707(2) of the criminal code. The Court noted in its verdict that the elements in article 707(2), ‘without authorization’ and ‘to obtain money’ are fulfilled. Because Yonas’s confession that he took the data, INSA’s testimony and the testimonies that the accused was claiming 50,000,000 Br to hand back the data is sufficient evidence showing the accused had accessed the e-mail without the victim’s consent with the intention of obtaining money illegally. The court had rejected the defense of the accused that he transferred the data to disclose a crime, noting that he had no right to investigate crimes but to report them. In addition to that, the accused did not prove whether the e-mail was jointly used between the two, the court reasoned.
Considering the public prosecutors’ claim that there was aggravating circumstance in Yonas’ suspicion of theft and guilt of harassing witnesses, the Lower Court had sentenced him to two years imprisonment and a fine of 5,000 Br.
The Higher Court, however, argued that the judges at the lower court had used an aggravating article without reasonable proof of the aggravating element, which is deleting data from the computer of the victim, Akiko. Accordingly, the court decided to use Article 706, according to which the defendant was given a sentence of a simple imprisonment of six months by suspension, resulting in the release of Yonas.
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