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Criminal liability for third person's act: case of release on bail

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par Pascal KAVUTTSE
National university of Rwanda - Licence 2011
Dans la categorie: Droit et Sciences Politiques > Droit Pénal
  

Disponible en mode multipage

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DECLARATION

I Pascal KAVUTSE hereby declare that this work entitled «criminal liability for third person's acts is original. It has never been presented anywhere. Every part of it is a product of my own research and where other individual's work has been used, references have been provided. I declare that it will never be presented anywhere else, and all rights of it are reserved to me.

DEDICATION

To God my savor,

To My Mother and Father,

To My Brothers and Sisters,

To My Closer Friend,

To My Colleagues of class,

This work is dedicated.

ACKNOWLEDGEMENTS

The struggle to complete this dissertation has been combined efforts of many people, for their direct and indirect roles through their assistance and cooperation. Raison why I wish to acknowledge them.

First, I would like to thank my supervisor Ms Naomi UMUHOZA, who willingly used her professional efforts for guiding me. I am deeply grateful to the academic staff especially those of faculty of law for the services offered to me.

I extend my profound thanks to my father NKURIKIYIMFURA Thomas, to my mother KARAME Pascasie, to my grand brother MUNYABURANGA Jacques and generally to my brothers and sisters for their support during my whole studies.

Lastly, I thank my closer G friend and my fellow colleagues of class for their cooperation.

ABREVIATIONS AND ACCRONYMS

Art.: article

CC B II: Civil Code Book three

Ed.: edition

ibid.: ibidem ( same author, same book, and same page)

ICC: International Criminal Court

id.: idem ( same author, same book, different page)

No : number

O.G.: Official Gazette

Op.Cit.: Opere Citato (book previously stated)

p.: page

Para.: paragraph

pp.: pages

R.C.N: Rwanda Citizen's Nertwork

UNR: Universté Nationale du Rwanda

Vol.: volume

w.w.w.: world wide web

Table of Contents

DECLARATION i

DEDICATION ii

ACKNOWLEDGEMENTS iii

ABREVIATIONS AND ACCRONYMS iv

CHAP. O. INTRODUCTION 1

CHAP.I. GENERAL CONCIDERATIONS OF CRIMINAL LIABILITY 5

I.1. CONDITIONS TO THE EXISTENCE OF CRIMINAL LIABILITY 5

I.1.1. Realization of an offence 5

I.1.2 The person who acts 9

I.1.3.consecration of principle of criminal liability of moral persons 10

I.2. CAUSES OF NON RESPONSIBILITY AND MITIGATING CAUSES OF RESPONSIBILITY 12

I. 2.1 objective causes or justifications of non responsibility 12

I. 2.2. Subjective causes of non responsibility or causes of non imputability 17

I.3. AGGRAVATING AND MITIGATING CAUSES OF RESPONSIBILITY 20

I.3. 1. aggravating circumstances 21

I.3. 2. mitigating circumstances 22

CHAP. II. RELEASE ON BAIL AND EXECUTION OF SANCTIONS 23

II.1.RELEASE ON BAIL 23

II.1.1. definition of bail 23

II.1. 2. Preventive detention and provisional release 24

2.3.why a release pending trial ? 26

2.4. Difference between provisional release and Conditional release/ Parole 26

II.1.3.Forms of bail 27

II.2. EXECUTION OF PENALTIES 29

II.2.1 GENERAL CHARACTERS OF PENALTIES 29

II.2.2. CLASSIFICATIONS OF PENALTIES AND TEIR EXECUTION 30

II.2.3. EXECUTION OF SENTENCE IN CASE OF RELEASE ON BAIL 32

II.2.3.1. criminal liability for third person's acts or execution by the surety..........................................32

GENERAL CONCLUSION 35

RECOMMANDATIONS 36

CHAP. O. INTRODUCTION

BACKGROUND

Every society must organize a system for responding to crime. Criminal law involved in this reaction by punishing behaviors that violate social values it protects1(*). Criminal law is divided into two parties: general criminal law and special criminal law.
According to Patrick Canin, general criminal law is a branch of criminal law which aims to study the liability, the latter being defined as the obligation of a person criminally liable for his actions. It determines all the general rules relating to the offense and the criminal sanction2(*).

The Rwandan penal code codified in 1977 by decree law No21/77 of 1/8august 1977 considers as the part of general criminal law the first 150 articles3(*). They indicate the common rules applicable to all crimes, such as the general constitutive elements of the crime, an attempt to commit a crime, the criminal participation, mitigation and aggravating circumstances, excuses and justifications for commission of a crime. Therefore, the special criminal law can be defined as a branch of criminal law that defines each criminal offence and its specific constitutive elements as well as punishment4(*).

The board purpose of criminal law are , of course, to make people do what society regards as desirable and to prevent them from doing what society considers to undesirable. Since criminal law is framed in terms of imposing punishment for bad conducts, rather than of grating rewards for good conduct, the emphasis is more on the prevention of the undesirable than on the encouragement of the desirable5(*). The criminal procedure is used in order to prosecute and to find the guilt of a person who is presumed to commit an offence, thereafter the penalties are incurred personally by the offender.

In some countries the penalties can be executed by a person other than the accused; for example in England in case of release on bail where a surety can be tried if the accused escapes the justice. When the accused was released on bail he and his sureties were said to be bound «body for body»6(*).

Among the punishments provided with by the penal code, the fines are included, and then this topic «the criminal liability for third person's act: case of release on bail and execution of bond» will be focusing to the punishment of fine, known as penal sanction. Indeed, fines are sometimes not personal in Rwandan criminal justice system.

PROBLEM STATEMENT

In civil law, there exist cases of liability for others' act (responsibility for the parents because of their minors living with them, craftsmen because of the apprentices, of the principals because of their employees).

There is the criminal liability because of others' act, when the law provides the payment of a fine by a person in place of the author of an offence7(*). It is the case of the articles 103 and 104 of the law No 13/2004 of the 17/5/2004 establishing code of criminal procedure O.G special N of the 30/07/2004, modified and complemented by law n 20/2006 of the 22/04/2006, O.G special n of May 27, 2006, which states that a Judge or Magistrate who orders for detention pending trial, may release the accused on bail by requiring him or her to execute a bond which guarantees the appearance of the accused whenever required in court as well as payment of damages arising from the offence, property to be restituted and fines8(*). Bail may be in form of bond or of a person standing as surety9(*).

Article 749 et759 of the code of the France criminal procedure state that in case of voluntary inexecution of one or more judgments to punishment of fine in criminal matter or correctional matter for an offence punished by imprisonment, including in case of voluntary inexecution of judgments to penal taxes or customs, the judge of application can order, under the conditions envisaged by this title, a judicial constraint (contrainte judiciaire) consisting of an imprisonment of which the duration is fixed by this magistrate within the limit maximum fixed by the law according to the amount of fine or of their cumulated amount. The individuals against whom the constraint was marked can prevent some or put an end to some effects either by paying or consigning a sufficient sum to extinguish their debt, or by providing a good and valid surety. A surety is allowed by the qualified public accountant. The surety must be released in the month, or else it can be sued10(*).

The artcle17 of the constitution of the republic of Rwanda states that the criminal liability is personal11(*). The fine is the obligation to the condemned to pay to the State as penal sanction, an amount of money12(*). The article of criminal procedure said above as its purpose is to provide that the accused person can escape the justice and then the surety shall cover the failure of accused.

Under the terms of provisions of various legislations mentioned above, many problems arise:

-The person who stands as a surety of the accused or convicted person for the payment of the fine is not charged of criminal liability for an act of accused?

-That kind of suretiship doesn't violate the constitutional principle of the personality of criminal liability?

- Can a person substitute another in the execution of criminal punishment?

-in case of no payment of fine, the surety can be submitted to legal constraint provided with by article 223 para 2 of code of criminal procedure?

HYPOTHESIS

In accordance with the provisions of the constitution of the republic of Rwanda as the fundamental law, in its article 17 which states that the criminal liability is personal; the legislator should have provided that in case of guarantee the person who is held surety of the accused will be responsible only with damages and interests and another court fees other than fine. In principle no one is liable of any punishment unless the punishment from his act.

TOPIC INTEREST

This topic will significantly help to avoid the contradiction of law and to make people know the person who is criminally liable of an offence committed. The topic will clarify how the penal sanctions are executed and the persons liable to execute them.

RESEARCH METHODOLOGY

The methodology to be used in the present work is a critical analysis approach which will help us to criticize the articles 103 and 104 of the law No 13/2004 of the 17/5/2004 establishing code of criminal procedure, as modified up to date. We will also use comparative and documentary method.

TOPIC DELIMITATION and SCOPE

The topic is limited to public law domain, especially in criminal procedure under Rwandan law. It is based on criminal liability in case of release on bail and execution of bond.

SUBDIVISION OF WORK

This work is divided in two chapters. Chapter one will relating to general considerations of criminal liability, chapter two will concerns release on bail and the execution of sanctions after release of accused, and the work will end by general conclusion and recommendations.

CHAP.I. GENERAL CONCIDERATIONS OF CRIMINAL LIABILITY

Criminal code and criminal procure do not explain what criminal liability is. But we can define criminal liability as a set of personal circumstances by which a person is obliged to respond his/her acts violating preexisting norms.

I.1. CONDITIONS TO THE EXISTENCE OF CRIMINAL LIABILITY

I.1.1. Realization of an offence

An offence is called as such because of certain required conditions that must be fulfilled the missing of any the act is not offence. Through the definition given by law any act is qualified as such.

I.1.1.1. definition of an offence

An offense is an act or omission provided and punished by the law through a specific penalty or security measure13(*). Penal code of Rwanda adds to that above definition that penalty must be provided before the commission of infraction14(*)

I .1.1.2. constitutive elements of offences

I.1.1.2.1. Legal element

An act or omission is an offense if, and when the preexisting law has provided for and punished it as such. It is the principle of legality of sentences and penalties often explained by Latin maxim "nullum crimen, nulla poena sine lege" (there is no crime or punishment without legal text). This principle is also one of the essential guarantees of individual freedom, indeed, the citizen is protected against arbitrary of the judge15(*).

I.1.1.2.2. material element

Material element is the project that the person envisages for committing a crime; it is sometimes the passage towards the act16(*).

The material act for existence of an offence is often a positive act; an action. (Example: the murder section 311 and following of the penal code). Therefore, it may be also an omission; a refusal to act. (Ex: failure to assist a person in danger Article 256 of the PC Rwandans)

The offense requires execution of material element. Individual freedom is protected by criminal protective law; no one can be punished for a simple thought. An externalization of that thought, for the realization of a material act is necessary. The legislator defines the criminal conduct (for murder, giving death to the victim and for the theft, the act of removing the property belongs to another). When the person comes to an end of his action and performs the material act, the offense is committed. However, when he was stopped before the realization of this element, the crime is only attempted17(*).

attempted offences

Forms of offences changes following the occurrence of development and social modification. Therefore, the material element of the offense must also be studied according to the development18(*). Criminal law is involved at all stages of the process. But the attempted offense is a special type of offense, independent of the committed offense. It is not the offense that the individual intended to commit, it is neither an incomplete offense nor an imperfect offense: it has its own individuality19(*).

The final commission of offense requires the completion of actual result for the substantive (material) offenses, which is not the case in attempted offenses20(*).

Indeed, the attempt is an effort to commit an illegal act. The legislator has defined that the attempt is punishable when the resolution to commit an offense has been manifested by external acts and the suspension or lack of effect of beginning the execution is due to independent causes of author21(*).

Therefore, if the author withdraws and voluntarily renounces his criminal intentions, the attempt is not punishable22(*). The mens rea (guilty intent) of ??the perpetrator of an attempted offense and of a committed offense is same23(*).

The attempt of felony and infringement is considered as felony or infringement itself and it is punishable even if the intended act is not achieved24(*). The attempt is punishable only if the commencement of execution has been interrupted and contrarily, there is no attempt if the author of the action stopped himself. By criminalizing the attempt, the legislature moves, in fact, the legal outcome of the implementation phase of the prohibited physical act (the act for the flight subtraction of the thing belonging to another) at the beginning phase of implementation ( the fact of breaking into a house to commit theft). In terms of criminal policy, the criminalization of attempt is relevant as behaviors that can lead to the final consumption of an offense shall be seized before the occurrence of the actual result25(*).

committed offences

The offense is committed when the act done by the author contains all required elements of the offense as specified in the definition of offense prescribed by the law26(*).

The purposes and modalities of consumption are different. The conduct prohibited by the law can be an act or omission. The offense of commission or action consists in performing a positive act which is prohibited by law. The person has done what the law forbids (kill, steal or defame). The offense by omission is a negative act of execution, that is to say the failure to accomplish what the law orders (not to save a person who is in a dangerous state, not to report crimes)27(*).

I.1.1.2.3. moral element

The occurrence of a criminal act is not sufficient to engage the criminal responsibility of the author. Indeed, it is still necessary that the agent has free will to do so. In other words, the agent must be able to account for his actions. It is moral imputabilty or moral attribution to the person, that is to say, the attachment of an offense against a person who may be held liable for his actions. Thus, it is necessary that the agent has committed a criminal act, it is issue of culpability. The moral imputabilty is external to the offense, while guilt is a component28(*). The criminal law does not punish automatically unlawful acts because it is not enough. There must have been the will of the author or his voluntary failure. It is the intellectual element of offense often called moral or psychological element29(*).

imputability

The criminal intent, supposes the will directed to a result that he knows illegal. The intentional act is an act of will but the act of will is not necessarily intentional, because it may be constitutive of imprudence or negligence30(*).

The legal concept of criminal imputability can be ethimologically defined from the Latin term ``imputare``, meaning ``to put on the account of'', thus, it supposes the existence of free will and the lucid intelligence of author31(*)

guilt

Guilt is a link between the offender to his act. Guilt is characterized by the will to commit the offense knowingly, it is guilty intent32(*).

I.1.2 The person who acts

I.1.2.1.author

The author of an offense is anyone who shall directly execute the offense33(*). The author is one who performs the unlawful acts. Indeed, the doctrine distinguishes the perpetrator (material author) of the offense, that one who carries out the elements of the offense, and the instigator (moral or intellectual author) of that one who determines people to perform material act without executing him/herself34(*).

Material author is that one who personally performs material acts constituting the offense, for example that one who removes the property of another in theft. Contrarily to material author, intellectual author is that one who, by his willful or negligent conduct, let someone who is under his authority and supervision, commit a crime35(*).

I.1.2.2.accomplice

Accomplices of a crime are those who knowingly have provided a useful support but not necessary, in commission of offence. Penal code defines an accomplice as any person knowingly, will by assistance, donation, promise, instructions, publicity, instigation,....... provoke the commission of a crime or will not report an offender36(*). The accomplice and author are submitted to the same penalties and the latter can be prosecuted even if the author of crime is not prosecuted37(*).

Complicity requires the existence of punishable principle, act there will never be the complicity without that act38(*). Indeed, the accomplice is considered as such and liable when and where the offence aided, abetted, or procured once is committed39(*).

I.1.2.3. co author

Coauthors are those who are on the crime scene; accomplices are those behind the scenes. Those involved in the offense are co-authors; those who have given some means of offense are only accomplices40(*). There may be two or more principals, joint principals, in the same crime; therefore, there may be more than one cause of an actus reus and more than one causer, they are coauthors41(*).

I.1.3.consecration of principle of criminal liability of moral persons

The involvement of corporations in diverse aspects of daily life has expended because their number has grown, and the pressure for the imposition of criminal liability for their wrongdoing has increased42(*). According to PATRICK Cannin, it is impossible to impose an infraction to a moral person because the principle of specificity of corporations was considered as an obstacle to criminal responsibility and expend the social character. Indeed, the principle of personality of penalties is opposed to the condemnation of a moral person, therefore, physical persons who compose it will undergo the penalties despite they did not take part to the offence43(*). But Roger BERNALDINI suggests that the principle of personality of penalties cannot prevent moral person to be criminally responsible and punished44(*).

Through those amalgam ideas one can wonder when an offence is committed by a corporation or a moral person?

In case the offence is committed for interest of that moral person45(*).

A crime can be committed for corporation's interest in two cases:

Primo, when it benefits from the committed crime; for example, industrial spy is a kind of offence which can be committed for the benefits and interests of corporation46(*).

Secundo, if an offence has been committed by its organs or its representatives. Criminal responsibility of moral person is only engaged by physical persons because the latter are its conscience and minds47(*). When any statute makes corporate liability an offence for a person to do or omit to do something, that offence is capable of commission by a corporation, unless the contrary is provided48(*).

Therefore, criminal liability of moral person does not exclude that of physical persons who are authors or accomplices to the same acts49(*).

Indeed, even if penal code of Rwanda has not any provisions to punish moral persons, the Rwandan legislator did not forget their criminal responsibility. That why the law No 07/2009 of 27/04/2009 relating to companies contains dispositions relating to penal sanctions applicable to the companies; from article 361 to 364.

I.1.3.1. legal regime of criminal liability of moral person

A corporation is a legal person but it has no physical existence. As a legal entity, a corporation may be placed under a duty to conduct itself in particular way on pain of criminal sanction for non compliance. The type of case where it is most obviously proper that a corporation should be liable arises where a statute imposes a duty upon a corporation to act and non action is taken50(*). Aside from those cases in which the duty is specifically imposed on the corporation as a legal person, prosecuting the corporation within the orthodox model of criminal law an actus reus and mens rea with absence of defenses creates difficulties since the corporate legal entity cannot either act or form an intention of any kind except through its directors or employees. The criminal law's solution to the lack of corporate body to perform the actus reus and mind capable of forming mens rea has been to treat the minds and bodies of the officers and servants of the corporation as supplying its mental and physical capacities51(*).

I.2. CAUSES OF NON RESPONSIBILITY AND MITIGATING CAUSES OF RESPONSIBILITY

I. 2.1 objective causes or justifications of non responsibility

The objective reasons for excluding criminal responsibility, or granting excuses, are external circumstances to the offender. The act committed is qualified as an offense, but in presence of one of these causes, the offence loses that qualification. The perpetrator cannot be charged of criminal or civil liability52(*).

I. 2.1.1 justifications resulting from the order to commit a crime

The order of law or lawful authority has the effect of removing criminal liability to any person who claims for it53(*).

I.2.1.1.1.order of the law

The performance of the act required by the law or regulation justifies the perpetrator. Thus, the physician who denounced to the health authority communicable diseases known to him does not commit a breach of confidentiality as the law requires it to do so. Obviously, the justification of the act plays only if the agent discloses within the strict limit imposed by the law54(*).

It is the case of article 70 of Rwandan penal code, which punishes the disclosure of professional secrecy, it states also that there are certain cases the disclosure of professional secrecy is allowed. Therefore, there is not any offence when the act committed is ordered by the law or a legitimate authority55(*). Thus, the article 327 of penal code shows clearly that order of the law is cause of non criminal responsibility. It states that without prejudice of article 325 and 326, there is no criminal liability of a physician who practices the abortion or a woman who gives her consent for abortion if all conditions provided by in this article are fulfilled56(*).

In some cases, for example, the arrest of a thief in case of red- handed is obligation to every citizen57(*). Code of criminal procedure in its article 33 states that if a person is caught red handed or taken to be committing an offence, any person is allowed to arrest an offender in case of failure of the judicial police officers58(*).

I. 2.1.1.2. command of a legitimate authority

By lawful authority, means any public authority, whether administrative, judicial or military. But a private authority (an employer, a parent) cannot be considered as legitimate authority in the meaning of the law. Indeed, the act ordered by legitimate authority must, of course comply with the law59(*). The authority is legitimate when exercised within the limits or within jurisdiction conferred to him/her by law60(*).

The question is where the legitimate authority orders an act contrary to law. The subordinate should or not perform the act?

The doctrine proposed several theories:

The theory of passive obedience focuses on discipline, the subordinate must respect all orders, even illegal, and the act done is then justified61(*). The system of passive obedience is invoked particularly in the military hierarchy, as we know, discipline is the main tool of armies62(*).

Theory of rational obedience or intelligent bayonets (l'obéissance raisonnée ou baïonnettes intelligentes ou encore des manches de lustrine réfléchies) : Considers that subordinate have to appreciate the legality of orders before acting, so, an illegal order does not entail any justification63(*).

Intelligent bayonets, bear although, controversial sense, that why the people must trust in their judgments. If the order is manifestly illegal of course, obedience to this order does not fit into the context of a defense64(*).

Intermediate theory: it distinguishes between the manifestly unlawful order and the order in which the illegality is not obvious. We must obey at the second but we should not obey the first. This is the third theory that was selected by many criminal codes65(*).

The Rwandan penal code has preferred the intermediate theory. Article 229 of Rwandan penal code states that any person accused of an offence will be exempted of penalty if he/she proves that he/she have acted on command of a superior legitimate authority; then ,the penalty will be pronounced against the superior. Therefore, the subordinate will be exempted only if the order is not manifestly illegal. If the order is manifestly illegal, the subordinate is accomplice. In all cases the superior authority can never escape the penalty resulting from such offence66(*).

Indeed, superior order is not a defense for accused merely to show that the act was done by him in obedience to the order of a superior, whether military or civil. The fact that the person was acting under orders may, nevertheless be very important67(*). Under international context, the statute of international court, ICC, provides in article 30 that «the commission of a crime pursuant to an order of a government or of a superior does not relieve a person of criminal responsibility unless that person is under a legal obligation to obey orders of government or the superior in question; the person did not know that the order was unlawful and that the order was not manifestly unlawful»68(*).

I.2.1.2. justifications resulting from the necessity to commit a crime

1. self defense

A person is justified of self defense if he/she acts against unjust aggression to defend him/herself, the third person as well as goods, if not, the act would be unlawful. Self-defense is based on the failure of police authorities to prevent the aggression. It is not an act of private justice, the purpose is less to punish than to prevent harm69(*).

Self-defense is not obligation; it is a permission of the law, so, we can choose if there is a real choice, not to defend oneself. The law provides that aggression must be currently envisaged. In principle, any infraction ceases to be as such if it is committed in case of self-defense. Aggression must be current (immediate) and unfair to stay in self-defense. Self-defense is a defense against aggression, if there is not act of aggression it is an attack not a defense70(*). There must be a proportion between attack and defense. Since there must be a proportion between attack and defense, we can recognize the legitimate defense of property if the harm inflicted in the attack is comparable to the value, for example, of goods that it threatened71(*).

Unjust aggression is not that one ordered by the legitimate authority or by the law, it is the aggression against the law72(*). This means that if the aggression is just, the defense does not legitimate. Self defense is deferent from necessity state where self defense requires some conditions: aggression and defense.

2. necessity in case of an exceptional situation

Necessity is a situation in which a person commit an unlawful act to avoid an imminent or a current danger that violates a relevant rights. The person shall choose to commit an offence or to let the occurrence of danger73(*). According to DAVID Ormerod, the necessity is a situation in which a person is faced with a choice between two unpleasant alternatives, one involving his committing a crime and the other some evil to himself or others74(*).

Necessity has the effect of removing criminal liability, but unlike the other justifications, it does not preclude civil liability of the agent75(*).

The doctrine in general and certain legislations affirm that necessity in criminal law is a defense. There is a necessity when an individual can only escape the evil by committing an offense for protecting his own legitimate interest or of others. Self-defense is a special case of the necessity requires to protect the individual himself by committing acts prohibited by law. But self defense and necessity are different. In self-defense, the acts are directed against the perpetrator of the aggressing on the contrary, in the necessity victim is a person totally out of the evil that threatened the perpetrator of a criminal act76(*).

Necessity state is sometimes confused with moral constraint, but they are different on where the necessity case do not require external will that force to do so.

I. 2.2. Subjective causes of non responsibility or causes of non imputability

Being criminally liable, the author must have mental faculties of thinking and must also have free will to act77(*).

I. 2.2. 1.mental diseases / insanity

There is no criminal responsibility if the defendant was insane at the time of action, or when he/she was in a state of insanity at the time of action or if he/she was forced irresistibly78(*).

In case of insanity, there is not any infraction because there is no moral element, so, the perpetrator cannot be sued or convicted he/she must be acquitted. Indeed, insanity is a subjective cause of non liability79(*), which means it does not extend to co-authors and accomplices who were not insane at the time of commission, the author must be only liable for civil responsability80(*).

All forms of insanity remove the individual control of his actions committed at such time. Dementia or insanity has the effect of suppressing consciousness and free will of an individual, and consequently, his criminal responsibility81(*). The insanity must be total, means that it must have caused a complete mental disability in mental faculties if not; it could be considered as mitigating factor82(*).

I. 2.2. 2.constraint

The constraint is a psychological cause that removes the freedom of will. Whether physical or moral, constraint must be irresistible and come out of the person who invokes it. It will remove the responsibility if the act of committing the offense was the only way to escape the threat83(*). In contrary to neuropsychological or psychiatric disorder (insanity) that destroys the capacity for discernment, the constraint suppresses the freedom of action of the agent.

Constraint (physical or moral), must have irresistible and unpredictability characters84(*). The irresistible means it must be absolutely impossible to be able to resist and to do otherwise he did. On the subject of unpredictability is considered that the person who was at fault before the action cannot invoke the cause of non-accountability. A person cannot invoke the constraint resulting from his or her own fault.

The removal of the responsibility or the accountability means that there is not moral element. Accountability presupposes free will; in case of constrain the will is not free. Therefore, the disappearance of the mental element of author cannot extend to the coauthors and accomplices reason why the constraint is subjective cause of non imputabililty85(*).

I. 2.2. 3. Minority / infancy

Rwandan penal code provides the age from which the person is criminally liable. Therefore, minors are classified in two categories: absolute minors and relative minors, among them some are criminally responsible with mitigation others are not.

Article 77 of Rwandan penal code states that any person aged at least of fourteen but under eighteen years is criminally liable, but penalties are decreased comparing to those against adults86(*). Rwandan penal code did not state in its provisions if the minor under fourteen are totally irresponsible.

I. 2.2. 4. Error

The error is not expressly provided for by Rwandan penal code as a cause of non responsibility. However, in some cases, it is obvious that the error is likely to remove the element of intent, moral element, and the question is whether in this case, there will or there will be no penalty.

ICC statute or Rome statute provides mistake as a cause excluding criminal responsibility87(*). Many authors have consider error or mistake as absence of moral element in commission of a crime.

According to LOUIS Marie MUGENZI the imputability (Accountability) is a prerequisite for criminal liability, it requires knowledge and the will of the person. That mental element of the offense has as a mission, to realize the material element of offence88(*).

In general, the error of law has no influence on the criminal responsibility according to the principle "nemo censetur ignorare legem". Thus, the error of fact as an essential constitutive or aggravating element of offence, modifies and erases even the intention of the offender in respect of that particular element. It is the case for example in a taxi, a traveler who makes a mistake of his bag and takes another rather than his/hers; error of the fact here is an essential element in theft: the ownership of a thing belonging to others, but the intent is not fraudulent.

The mistake of fact may prevent the aggravation of a penalty resulting from aggravating circumstances89(*). It is the case of a person who kills another while ignoring that he is his father. Therefore, infraction committed is not parricide it is homicide.

The error on law in general is not retained under the maxim 'nemo censetur ignorare legem' . However, case law have recognized the error of law, at least when the error relates to an issue of law of course, but that is not a problem of criminal law, such as it is a mistake of law, commercial and administrative law90(*). This is the case, for example, an individual who has discovered an object called a treasure. The treasure does not belong wholly to the discoverer, but sometimes the individual does not know and he believes he can keep it and he retains it. In this case he committed the theft in principle, but assumed he was unaware of the civil law which says that the treasure is not exclusive to the finder; this error of law will save him from criminal prosecution.

It's the same case of an individual who is prosecuted for adultery when he believed he was no longer married.

Mistake of fact is what one encounters in the event or individual makes a mistake on something or someone. We can take an example of a pharmacist who is wrong and gives a poison instead of medicine, there is no poisoning even though the result may be the same. There is a lack of carefull91(*). However the mistake of fact is irrelevant in respect of infringements by carelessness or negligence.

The mistake on fact focuses the materiality of the act itself. It is not provided by any text, but the general rule arising from the case law is that an error of fact excludes the guilt of the agent in terms of intentional offense if certain conditions are met and if not, it does not affect the criminal liability of the agent. The error considered can take many forms: It can be a prerequisite for an offense. It can also consist of behavior itself. In all these cases, the error is exclusive of intention and the person is in good faith, not having been aware of the unlawfulness of his/her act. Here, error is a cause of non guilty.

The error would be a cause of non-accountability related to the psychological element of the offense and especially the knowledge element; thus, it is the lack of knowledge or consciousness that causes the absence of free will. This shows that the error, to which we assimilate ignorance, can demonstrate the good faith of the defendant as penal code has retained the will in criminal acts92(*).

I.3. AGGRAVATING AND MITIGATING CAUSES OF RESPONSIBILITY

The circumstances are usually made outside the offender, but that may be personal, and they will lead sometimes to mitigate, or to aggravate penalties. Indeed, when the circumstances leading to aggravation of the repression, it is necessary that the law has provided, while when it comes to mitigation, the judge has broad discretion93(*).

I.3. 1. aggravating circumstances

In determining the aggravating circumstances it is therefore to consider the circumstances, including events surrounding the commission of the offense. The Rwandan penal code provides some aggravating causes but they are not specified clearly. It often mentions them in articles in accordance with the matter the article is related. Among them we can note baribarian acts, premeditation, guet apens, recidivism,........... we can consider one of them which is recidivism.

I.3. 1.1. Recidivism

Once the suspects, defendants or offenders are release from the jurisdiction of criminal justice they may precede through the criminal justice system again for a new crime.

Recidivism is a situation where a person already convicted for a previous offense finally commits a new offense94(*). Here again there must be a final decision authorizing of res judicata has been made on the first offense. Recidivism depends on the nature of committed offences and also the time during which they were committed95(*).

The purpose of recidivism is to aggravate penalties for repeat offenders. In case of recidivism, the offender will be sentenced a maximum penalty provided or the penalty can be doubled96(*). In accordance with penal code, there is not any recidivism if the penalty pronounced to previous offence was suppressed by amnesty or rehabilitation97(*).

I.3. 2. mitigating circumstances

Contrarily to aggravating circumstances, mitigating circumstances are not provided anywhere in Rwandan criminal code. Rwandan criminal code have let them to the discretion or appreciation of judges but judges must motivate their mitigating decisions98(*). Mitigating circumstances has as mission to diminish or modify penalties. The penal code provides the manner by which penalties are modified99(*). Provisions of article 78 and 81 of penal code by analyzing them, we consider that the provocation is one of mitigating circumstances because they provide that an offence committed by provocation of the victim will entail the diminution of penalty100(*)

Reducing the sentence does not modify the nature or qualification of a crime or its legality101(*).

CHAP. II. RELEASE ON BAIL AND EXECUTION OF SANCTIONS

Before a judge declares suspect his/her guilty in final judgment and before the pronouncing of conviction, there is a long process through which the suspect is presumed innocent. During that process suspect can ask for release from custody if he/she is arrested, but a release is not automatic. Though, he/she can be released or remain provisionally in custody. His/her release does not mean that if his/her guilt is found he/she will not be convicted or execute the sentence. Indeed, she/he must execute it unless he/she escaped the justice. However, the enforcement authorities have only one recourse: the pursuit of wealth of the offender or that of his surety in case of bail, for execution of pecuniary penalties like fines.

II.1.RELEASE ON BAIL

II.1.1. definition of bail

Bail represents to deliver the defendant to persons who in a manner prescribed by law, become surety for his appearance in court. It is also to set a liberty a person arrested or imprisoned on security being taken for his/her appearance on specified day and place. Thus, bail can be defined as a monetary amount for or condition of pretrial release from custody, normally set by judge at the initial appearance102(*).

Bail is also defined as the delivery of a person to another for keeping and in generally used in reference to one arrested or committed to prison, upon a criminal process. Such a person is considered to be bailed when he/she is delivered to another, who becomes her/his surety for appearance at court to take his trial. The person who thus becomes surety is said to become bail, and amount itself is also called bail103(*)

Bail allows people who have been arrested to remain out of jail while waiting for trial. It can be paid by friends, relatives or the person accused of a crime. In fact any one can bail another person out of jail104(*).

In addition to the above definitions, Rwandan criminal procedure in its article 101 para.1, considers bail also as provisional release. It states «in all offences, an accused person or her or his counsel can at any time apply for bail to the public prosecutor charged with the preparation of the case or to a judge or magistrate depending on the stage of investigation» and the article 90 of that code of criminal procedure states «bail conditions can be ordered when the offence a person is charged of is a misdemeanor or a felony».

II.1. 2. Preventive detention and provisional release

2.1. Preventive detention

It is a confinement imposed generally on a defendant in criminal cases who has threatened to escape or otherwise violate the law while a waiting trial or disposition, or of a mentally ill person who may harm himself or other105(*).

Preventive detention is ordered by the court on grounds based on facts and law specifying that the accused has committed an offence. An order for preventive detention is signed by a magistrate or judge and a court registrar106(*).

2.2. Provisional release

The provisional release is a measure that differs from preventive detention and causes enlargement of the individual, if the retention or release is accompanied by certain specific obligations, other than a commitment to meet the convocations, there is submission under control It is also an action to set free a prisoner conditionally or permanently107(*).

The judge before whom the accused appears may order the provisional release of an individual for whom preventive detention is authorized, subject to conditions that may be imposed such as residence in a specific locality or a prohibition to leave the locality108(*).

The release pending trial is applicable in all jurisdictions, national or international109(*).

The release may be subject to judicial supervision by granting a bail bond. The accused prisoner released on bail, remains in custody until he paid it, and measures of detention continue to apply, including the extension of detention term. It is the release on bail (la mise en liberté sous caution)110(*).

Provisional release can be ordered when the offence is punishable by less than two years of imprisonment. It is a release as rights (mise en liberté de droit)111(*).

The judge may ex officio, in hi/her discretion and without any request of the accused, order the release of an accused, charge for him/her to appear for all acts of procedure, whenever required and to inform the investigator of any remove from locality. It is a release ex officio (mise en liberté d'office)112(*).

The faculty to request for release is an absolute right of a detained113(*). However, the release is not a right for the detained but a possibility for the judge in accordance with his/her sovereign discretion and conscience. It is facultative release (mise en libelté facultative)114(*).

2.3.why a release pending trial ?

The provisional release is in principle a rule and detention an exception.

The pretrial detention is considered as an exceptional measure because it is deprivation of liberty without the defendant's guilt has not yet been established and this could lead to consider the detention as an anticipated penalty115(*).

In principle, every suspect is presumed innocent as long as his/her guilt is not established116(*). Even in fragrant offense (red handed), the principle of presumption of innocence is still playing because only the court after assessing the facts of offense, is entitled to convict117(*).

In the international instruments, the use of pretrial detention should be restricted because it is a measure of deprivation of liberty while the latter is a fundamental right internationally recognized, it is the prohibition of arbitrary or illegal detention118(*).

2.4. Difference between provisional release and Conditional release/ Parole

Conditional release is a discharge based on some conditions, the failure of which defeats the release. It is also a substitute form of release from custody subject to applicable statute and rules of parole board119(*).

This definition gives a clear picture that conditional release can mean both provisional release and parole. The only difference between the two refers to before conviction, after conviction procedures120(*).

A convicted person is eligible for parole after serving of a part of his/her conviction and it is granted based on evidence of good behavior. Parole may be revoked in cases of misconduct or if another offence is committed during parole, in which case the inmate serves not only the sentence for the newer offence, but also complete the existing sentence121(*). Parole is an anticipated release, granted by the administration to a condemned person who incurred one or more sentences of imprisonment or was put at the government disposal, if he/she has sufficiently demonstrated good conduct with serious social rehabilitation122(*)

Parole or conditional release is the letting out prisoners from prison before the legal period of their imprisonment has ended.

II.1.3.Forms of bail

Even if in principle the accused would be released as long as he/she is presumed innocent rather than to remain in custody, a release is some times conditional. It can be made either on bond; on surety or on conditions.

Bail bond

A bond is a sum of money paid by the defendant in criminal court to be released pending trial123(*). The accused is released upon payment of a sum of money or promise of given sum to be paid later for guaranteeing his/her return or absence for trial. The guarantee can be also given in form of property like land, house, and so on, and can be paid by another person on behalf of other124(*).

The accused prisoner released on bail, remains in custody until he paid that money. It is case of prosecution represented by prosecutor NIBISHAKA Mireille v NTIGIRINZIGO Joseph represented by Me BUGINGO Charles before lower instance of NGOMA, Joseph was accused of assault and battery against BIMENYIMANA. Joseph has pleaded guilty and the court decided to release him on bail of hundred thousand (100.000 rwfs). The court has decided that he must pay that bond within two following the date on which the decision was taken, if not he must be detained in KARUBANDA prison during thirty (30)days125(*).

Bail on surety

A surety is a person who is primarily liable for the payment of another's debt or performance of another's obligation126(*). In accordance with article 104 of criminal procedure a bail can be in form of bond or person standing as a surety.

A surety is responsible to ensure that the accused attends court as required until the case is over. He/she is also responsible to ensure that the accused abides by the conditions of his/her release127(*).

The judge may release the defendant to the custody of some responsible person, who agrees to exercise custodial supervision and to ensure responsibility for the defendant's required court appearance128(*). It is the case of prosecutor v TWAHIRWA Théogène and MUKURARINDA J. Bosco, one director another accountant of school owned by the church UEBR. Both were accused of issuing cheques without sufficient funds to the school's food suppliers. For being released they pledged the church UEBR as their surety129(*). One can wonder if such kind of suretiship is legally allowed in contractual liability.

Bail conditions

Article 91 of criminal procedure states that a suspect can be subjected to one or several bail conditions provided for in article 102 of the same law. Those conditions are:

- To live in a determined location;

- Not to travel a prescribed area without prior permission;

- Not to travel a specific area or not to be found in certain location at a given time;

- To report at given periods before a public prosecutor or a public servant;

- To appear before a public prosecutor in charge of preparation of his/her case file or before a judge or magistrate if it is required to do so;

- To present persons of integrity to stand for his/her surety130(*).

II.2. EXECUTION OF PENALTIES

Penalties are executed in accordance with the gravity of committed offences and the penalties incurred. Before determining penalties and their mode of serving we are going to begin with their general characters.

II.2.1 GENERAL CHARACTERS OF PENALTIES

II.2.1.1. Legality

The legality is the application of the constitutional principle of nulla poena sine lege.

It is necessary that the law specifies that any behavior to such penalty may be imposed, the law is only to provide, and the judge, when the law has provided, will be legally bound by the command of law. This principle of legality is a reaction against the arbitrary131(*). This principle of legality is a reaction against the arbitrary. It is necessary that the penalties resulting from an offense, meaning that there can be no punishment without prior offense.

(M.Georges Brière de l'Isle, professeur à l'université de paris x, Droit pénal général, p346, les cours de droit, 158, rue saint Jacques-Paris-v) (M.Georges Brière de l'Isle, professeur à l'université de paris x, Droit pénal général, p346, les cours de droit, 158, rue saint Jacques-Paris-v)

II.2.1.2. Personality

This principle means that the penalty strikes just the offender and especially that it should hit the offender132(*). It is a principle of criminal liability is personal.

II.2.1.3 . Individuality

When the convicted persons are more than one for the same offence every one serves individually the penalty pronounced against him/her. The article 43 of Rwandan penal code provides individuality character of fine penalty.

II.2.1.4.No double jeopardy

An individual may not be punished twice for the same infraction133(*). It is a general principle called in Latin «non ibis in idem», which means a person cannot be punished twice for the same crime already punished.

II.2.2. CLASSIFICATIONS OF PENALTIES AND TEIR EXECUTION

The Rwandan penal code in its article 26 and 27 classifies penalties in two categories, principal and accessory penalties. But there is another category we would take in consideration, complementary penalties in case of conviction with two different principal penalties. Their execution is personal and article 226 of criminal procedure prohibits the provisional execution of judgement.

II.2.2.1.Principle penalties

Penal code article 26 provides types of principal penalties which are imprisonment, fine and death penalty but the latter have been abolished.

Principal penalties are those that necessarily must be pronounced by the judge for a certain offence, there is no criminal conviction without a principal penalty134(*).

- imprisonment

The imprisonment can be temporary or life term and it is served in prisons135(*).

- fine

A fine is pecuniary penalty that consists of paying a certain sum of money to the public treasury136(*). Article 219 et 280 para1 of Rwandan penal code show clearly that fine is principal penalty where a person can be convicted of fine only.

Fines are paid to a court clerk within a period of eight days following a judgment of final conviction137(*).

-Public interest works

The criminal procedure provides another penalty which can be considered as principal penalty. It is public interest works provided in article 225 of criminal procedure which is executed by serving works from which the public commonly benefit.

II.2.2.2. complementary penalties

Complementary penalties are those that are not normally possible to impose without the support of principal sentences. They complement the main penalty to ensure the best punishment138(*). The complementary penalty is that one added to the main sentence, as accessory penalty, but unlike the latter, not automatically the result of condemnation139(*). They are applied jointly to the convicted offender.

In accordance with article 121 of penal code imprisonment and fine are complementary, a convicted of this article shall undergo jointly both penalties.

II.2.2.3 accessory penalties

Accessory penalties are different from complementary penalties, they cannot, exist without the support of a main penalty; they are so closely added to principal penalty automatically without the judge need to decide140(*).

They are additional in ex officio to the main penalty without mentioning them in the judgment.

Penal code provides in its article 27 four types of accessory penalties.

confiscation

The law entitles the state to confiscate any thing which has been involved in the offence, or which has assisted in its commission, or which has been produced as a result141(*).

- forfeiture

Court may also prohibit criminals form being found in certain localities, or may order them to live in certain place142(*).

The forfeiture is also qualified as a penalty, but is nevertheless a measure of safety143(*).

-putting a person at government disposal

Any recidivist convicted three times in period of ten years by a sentence of at least six months for each one of that three times, he/she shall be automatically put at government disposal. Art59 penal code.

-civic degradation

Civic degradation consists in the removal and exclusion of convicted from any position, employment or public office, in the deprivation of the right to vote, election, eligibility, and in general for all civil and political rights144(*).

II.2.3. EXECUTION OF SENTENCE IN CASE OF RELEASE ON BAIL

In principle the execution of penalty must be served by the convicted offender personally. This is normal such execution can not cause any problem. A problem arises in case the execution of penal sanction is attributed to the third person rather than the offender. It the case of a surety pays fines in place of offender provisionally released on surety bail and thereafter escapes the justice before final judgment.

II.2.3.1. criminal liability for third person's acts or execution by the surety

In criminal law the general principle is that one is responsible for the fact that one commits oneself or he/she participated. The article 260 of Civil Code B III, provides for responsibility of other's act in cases where the fault was committed by others than those to whom will be also requested to repair. This is particularly true of fathers and mothers for damage caused by the faults of their minor children living with them, it is the same for artisans who have apprentices, and there is primarily the responsibility of principals for the damage caused by the mistakes of their employees145(*).

Is there an equivalent in criminal law? Many authors have given their suggestions about it.

A French M. Georges Brière de l'Isle said that according to the principle known as'' personality of punishment and any one is punished as a result of his personal act''; so if a person is neither the author nor accomplice in an offense because he/she did not participate, the principle is that one can not be punished146(*). He continues saying that even if in criminal law the principle of personal responsibility is justified more, there are some exceptional cases to the principle considered that there is criminal liability for third person's act like the case of certain violations of laws by an organization of work that will result in the conviction of company executives while the offence was committed by some of their subordinates147(*).

Another author called JEAN CLAUDE Soyer suggested that in a broad sense, the criminal responsibility for third person's act is where a person is punished for violation committed in its materiality, by someone else. This applies, for example in case of accomplice by instigation. But in a narrow sense, normally, criminal liability for other's act refers to criminal liability of principal (employer) in an enterprise. He/she is attributed to the offense materially committed by her/his employees, without her/his personal involvement in the offense148(*).

Both author, M.G.Brière and J.C.Soyer, agree with the existence of criminal liability for third person's acts despite the general principles of personality of criminal responsibility and personality of penalties. We can wonder if in Rwandan legislations such criminal responsibility for third person's acts exists. The answer is positive.

According to NTAMFURAYINDA Joseph, fines penalties in Rwandan legislation may not be personal because the Rwandan legislator has provided some cases the fines are incurred by persons not guilty to the offense. He suggests with an example of the case of the Penal Code Article 47, which provides solidarity in regard to the obligation to pay fines and convictions related to restitutions, damages interest and court fees. In the direction to correct the mistakes that would result from the principle of solidarity, the Rwandan legislator has set the procedure for bringing an action for recourse against offenders who have not paid their debts as is stipulated in the provisions of Article 112 CCL III. Despite all the mitigations taken to the principle of solidarity, it still contradicts the principle of personality of sentence enshrined in the supreme law, the constitution149(*).

Thus, as said before a suspect can be released during investigation with guarantee of bond or surety and the latter will cover any loss resulting from the offence in case the accused escapes the justice. Therefore, the execution of final judgment by accused her/himself is eventual because his/her presence at the time of execution is doubtful.

Indeed, the enforcement authorities have only one recourse: the pursuit of wealth of the offender or that of his surety in case of bail, if the condemned by his unwillingness or by other circumstances, does not pay incurred fine150(*).

GENERAL CONCLUSION

This work entitled:  «criminal liability for third person's acts: case of release on bail» has the hypothesis of personality principle of responsibility and punishment of fines like other penal sanctions in case of release on bail.

In civil law, there exist cases of liability for others' act. Unlike, criminal law is framed in terms of imposing punishment for bad conducts, rather than of grating rewards for good conduct, the emphasis is more on the prevention of the undesirable than on the encouragement of the desirable. Thus, criminal justice system before punishing, considers certain elements of crime and some circumstances that can mitigate or aggravate penalties or to imply irresponsibility of perpetrator. However, in principle the penalties are incurred personally by the offender unless there are causes of non responsibility.

Though, the process of charging to some one a offence let him/her certain rights as long as he/she is presumed innocent. Therefore, he/she can be provisionally released whether on bail conditions, on bail bond or on bail surety. His/her release does not mean that if his/her guilt is found he/she will not be convicted or execute the sentence. Indeed, she/he must execute it unless he/she escaped the justice. However, if he/she escapes, the enforcement authorities have only one recourse: the pursuit of wealth of the offender or that of his surety in case of surety bail, for execution of pecuniary penalties like fines.

It is worth to mention that this research clarifies what release on bail is under Rwandan law, how the punishment of fines violates personality principle of criminal liability and punishment not only in case of release on bail but also in general. The execution of fine punishment is sometimes against the constitution in its article 17 «criminal liability is personal». The release on bail is also against constitution. There is no equal protection if a suspect is released on payment of a sum of money. However, release on bail is reserved to the richer and those who have not financial means shall never benefit provisional release.

RECOMMANDATIONS

The principle of personality of criminal responsibility implies the personality of punishment meaning that a person is punishable because of the offence he/she committed him/herself or he/she participated. Criminal justice system should ensure as far as possible if a person to execute or to serve a punishment is personally offender.

The release on bail should be limited only to the bond and conditions, not to the surety. If release on bail surety is necessary, a surety should be bound only to civil penalties rather than penal sanctions. The criminal justice should be careful to the fines penalties. It should recognize that fines are penal sanctions, then, criminal liability is personal.

As a particular recommendation, judges or magistrates in taking decisions of release on bail, would follow the supreme law, the constitution, rather than other laws. Their motivations denying bail on surety would be based on constitutional principle of personality of criminal liability. If not their decisions will be against the article 17 of Rwandan constitution. It is good and necessary to know and to respect the hierarchy of norms.

The legislator should correct some articles of code of criminal procedure especially those relating to release on bail. For example article 90 which states «bail conditions can be ordered when the offence a person is charged of is a misdemeanor or a felony» and article 105 para.2 which states «no bond shall be admitted in respect of felonies». The problem is how damages arising from the offence, property to be restituted and fines will be recovered in case the accused of felony and released on bail conditions, escapes? Those articles give chance to that one accused of felony rather than the accused of misdemeanor.

BIBLIOGRAPHY

LAWS

1. Constitution of republic of Rwanda of 04/06/2003 (O.G special No of 4 june2003, p. 119) as amended up to date.

2. Rome statute (Text of the Rome Statute circulated as document A/CONF.183/9 of 17 July 1998and corrected by process-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16January 2002. The Statute entered into force on 1 July 2002).

3.Law No 13/2004 of 17/5/2004 establishing code of criminal procedure, O.G special No of 30/07/2004, modified and complemented by law n 20/2006 of 22/04/2006, O.G special n of 27 may 2006.

4. Decree law of 30 July 1888 [Book III ] contracts or conventional obligations (B.O., 1888, P. 109)

5. .Decree law No21/77 of 1/8august 1977 establishing Rwandan penal code(O.G No 13, 1978 p.1) modified by decree law No23/81 of 1981 (O.G 1981,P.940) confirmed by law No 01/82 of26 January 1982(O.G no 1982,p.227)and law 08/1983 of 10 March 1983 (O.G of 1983, p.206)

6. Code of criminal procedure of republic of French.

BOOKS

1.CANNIN Patrick, droit pénal général, 4e éd., maitre de conférence à l'université Grenoble-II-Pierre-Mendès-France, hachette, 2007

2. K. Twiine Apophia, special criminal law course manual, faculty of law, NUR, 2009

3.Wayne R. La Fave and AUSTIN W. Scott, Jr, criminal law

4.BERNARDINI Roger, Droit pénal général : Introduction au droit criminel théorie générale de la responsabilité pénale, 2003

5.MUGENZI Louis. Marie, droit pénal général, ministère de la justice, Edition R.C.N., 1995

6.Brière de l'Isle M.Georges, Droit pénal général, les cours de droit, 158, rue saint Jacques-Paris-v

7.Ormerod David, SMITH AND HOGAN. Criminal law, 11th ed., US Oxford university press, Inc., New York, 2005

8.Soyer Jean CLAUDE, droit pénal et procédure pénale, 16th ed., L.G.D. 31, Rue Falguiere, 741 Paris Cedex 15 Depot Légal, 2002

9.Campell Brack. Henry, Black's law dictionary, 6e ed., St Paul Minn: West Publishing, 1990

10.CORNU G, vocabulaire juridique, 8e ed., Paris, PUF, 2000

11.William A. Shabas and Martin Imbleau, introduction to Rwandan law, Canada,Quebec, les Editions Yvon Blais inc. 1997

12.P.CHAMBON, le juge d'instruction, théorie et pratique de la procedure, 4e ed., Paris, Dalloz, 1997

13.Pradel Jean, droit pénal comparé, Paris, Dalloz, 1995

14.MWINE B. Jofrey, criminal responsibility in Rwandan law: criminal proceedings since 1994, memoire, UNR, 2001

15.MUHAYEYEZU A., le droit à un procès équitable, principe fondamentale de droit de l'homme dans la procédure devant les juridictions répressives rwandaises, RJR., vol XVI, No 1, 1992

16.TUSABE Andrew, conditional release under Rwandan law, memoire, BUTARE, UNR, 1999

17.UMUHOZA Naomi, legal analysis of bail system under Rwandan law, BUTARE, UNR, Memoire, 2006

18.Bouloc Bernard, Matsopoulou Hiritini, droit pénal général et procédure pénale, 16e ed., Paris, Editions Dalloz, 2006

19.NTAMFURAYINDA Joseph, le régime de l'amende en droit pénal rwandais, UNR, mémoire, 1989

20.CHAMBON P., le juge d'instruction, théorie et pratique de la procédure, 3e ed., Paris, Dalloz,1980

21.Cambridge encyclopedia,

22.Encyclopedia Americana vol.3 Americana corporation, New York- Chicago- Washington,DC, 1961

CASE LAWS

1.RONPJ 0141588S1/11/RG/NM, order no 19/11/NGOMA of provisional release of September, 06, 2011, prosecutor v J.NTIGIRINZIGO

2. 33.RPGR 290036/S1/2005/BG/SA, Order no 47/2005/ TB/GIKONGORO of provisional release of 12/08/2005 prosecutor v T.TWAHIRWA and J.B.MUKURARINDA

ELECTRONIC SOURCES

1. http://www.becausejailsucks.com/arrest.html accessed on 4/03/2011

2. Htt://www.defenselaw.com/bail-4html accessed on 12th September, 2011

3. http://www.yourlegalguide.com/bail/ accessed on 12th September, 2011

* 1 P. CANNIN, droit pénal général, 4e éd., maitre de conférence à l'université Grenoble-II-Pierre-Mendès-France, hachette, 2007, P.7 (translated by the author from french)

* 2 Ibid.

* 3 decree law No21/77 of 1/8august 1977 establishing Rwandan penal code(O.G No 13, 1978 p.1) modified by decree law No23/81 of 1981 (O.G 1981,P.940) confirmed by law No 01/82 of26 January 1982(O.G no 1982,p.227)and law 08/1983 of 10 March 1983 (O.G of 1983, p.206)

* 4 Apophia K. Twiine,special criminal law course manual, faculty of law, NUR, 2009,P.8.

* 5 W. R. La Fave and AUSTIN W. Scott, Jr, criminal law, p.21

* 6 X, http://www.becausejailsucks.com/arrest.html accessed on 4/03/2011

* 7 Patrick CANIN, droit pénal général, 4e éd. Hachette, 2007, P.105

* 8 Article 103, law No 13/2004 of 17/5/2004 establishing code of criminal procedure, O.G special No of 30/07/2004, modified and complemented by law n 20/2006 of 22/04/2006, O.G special n of 27 may 2006.

* 9 Ibid., Art. 104.

* 10 Art. 749 and 759, code of criminal procedure of republic of French.

* 11 Art. 17, constitution of republic of Rwanda of 04/06/2003 (O.G special No of 4 june2003, p. 119) as amened up to date.

* 12 J. PRADEL, droit pénal général, p.604

* 13R. BERNARDINI, Droit pénal général : Introduction au droit criminel théorie générale de la responsabilité pénale, 2003, p.296. (translated by the author from french)

* 14 Art. 1 of Rwandan penal code, Op.Cit.

* 15 L. Marie MUGENZI, droit pénal général, ministère de la justice, Edition R.C.N., 1995, pp. 3-4 (translated by the author from french)

* 16 M.Georges Brière de l'Isle, Droit pénal général, les cours de droit, 158, rue saint Jacques-Paris-v, p.197 (translated by the author from french)

* 17 P. Canin, Op. Cit., p.51

* 18 R. BERNARDINI, Op. Cit., p.333

* 19 Id., p.335

* 20 P. Canin, Op. Cit., p.55

* 21 Art. 21 of Rwandan penal code, Op.Cit.

* 22 L Marie MUGENZI, Op. Cit., p. 12

* 23 R. BERNARDINI, Op. Cit., p.350 ; Art. 24 of Rwanda penal, Op.Cit.

* 24 Art. 22 and 24, penal code,Op. Cit.

* 25 P. Canin, Op. Cit., pp. 54- 57

* 26 R. BERNARDINI, Op. Cit., p.309).

* 27P. Canin, Op. Cit., p. 61

* 28P. Canin, Idem p.61,

* 29R. BERNARDINI, Op. Cit., p.374

* 30 P. Canin, Op. Cit., p.62

* 31 R. BERNARDINI, Op. Cit., pp.376- 377.

* 32Idem., p383

* 33 Penal code Op.Cit., art .90

* 34 P. Canin, Op. Cit., p.96,

* 35R. BERNARDINI, Op. Cit., P.439

* 36 Penal code, Op. Cit., Art. 91

* 37 Id., art. 89

* 38 PATRICK Cannin

* 39 D. Ormerod, SMITH AND HOGAN. Criminal law, 11th ed., US Oxford university press, Inc., New York, 2005, p.169

* 40M.Georges Brière de l'Isle, Op. Cit., p.224

* 41 D. Ormerod, Op.Citp., 16

* 42 D. Dormerod, SMITH AND HOGAN criminal law, 11th edition, US Oxford university press Innc. , New York, 2005. p234

* 43 P. Cannin, Op. Cit., p 91

* 44 R. Bernaldini, Op. Cit., p 508

* 45 J. CLAUDE Soyer, droit pénal et procédure pénale, 16th ed., L.G.D. 31, Rue Falguiere, 15741 Paris Cedex 15 Depot Légal, 2002, p.127 (translated by the author from french)

* 46 Ibid.

* 47Id., p128

* 48 D. Ormerod, Op. Cit., p.240

* 49 J. CLAUDE Soyer, Op. Cit., p.123

* 50D. Ormerod, Op. Cit., p.235

* 51 Ibid.

* 52 P. Cannin, Op. Cit., pp.75-76

* 53 penal code Op. Cit., art 70 para .1

* 54P. Canin, Op. Cit., p.83

* 55 penal code,Op. Cit. art. 70

* 56 Id., Art.327

* 57 M.Georges Brière de l'Isle, Op. Cit., p.155

* 58 code of criminal procedure, Op. Cit., art33

* 59P. Canin, Op. Cit., p.84

* 60L. Marie MUGENZI, Op. Cit., p. 60

* 61P. Canin, Op. Cit., p.84

* 62M.Georges Brière de l'Isle, Op. Cit., p156

* 63P. Canin, Op. Cit., p.84

* 64M.Georges Briere de l'Isle, Op. Cit., p.156

* 65P. Canin, Op. Cit., p.84

* 66 penal code, Op.Cit., art. 229

* 67 D. Ormerod, p.327

* 68 ICC statute. art. 30 (Text of the Rome Statute circulated as document A/CONF.183/9 of 17 July 1998and corrected by process-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16January 2002. The Statute entered into force on 1 July 2002).

* 69P. Canin, Op. Cit. p.85

* 70M.Georges Brière de l'Isle, Op. Cit., pp.158-168

* 71Idem, p.163

* 72Idem, p.165

* 73P. Canin, Op. Cit., p.88,

* 74 D. Ormerod, p.315

* 75 penal code, Op. Cit., art.71

* 76M.Georges Brière de l'Isle, Op. Cit., pp. 178-179

* 77P. Canin, p.76

* 78 Article 70 penal code, Op. Cit.

* 79 .M.Georges Brière de l'Isle, Op.Cit., p.293

* 80 Article 71 penal code, Op. Cit.

* 81 penal code, Op. Cit., art70

* 82L. Marie MUGENZI, Op. Cit., p.57

* 83Idem p.58

* 84P. Canin, Op. Cit., p.80

* 85M.Georges Brière de l'Isle, Op. Cit., p.296

* 86 penal code, Op. Cit., art. 77

* 87 ICC statute(Rome statute), Op.Cit., art. 32

* 88 L. Marie MUGENZI, Op. Cit., p. 61

* 89L. Marie MUGENZI, Op. Cit., p .61.

* 90M.G. Brière de l'Isle, Op. Cit., p.300

* 91Id. p.301

* 92Roger BERNARDINI, Op. Cit., p.634

* 93M.G.BRIERE de l'Isle, Op. Cit., pp.315-316

* 94P. Canin, Op. Cit., p.137

* 95M.G. Brière de l'Isle, Op. Cit., p.243

* 96 penal code, Op. Cit., art.85

* 97 Ibid.., art. 86

* 98 Id., art. 82

* 99 Ibid., art. 83-84

* 100 Id., art 78;81

* 101 B. Jofrey MWINE, criminal responsibility in Rwandan law: criminal proceedings since 1994

* 102 B. H. Campell, Black's law dictionary, 6e ed., St Paul Minn: West Publishing, 1990, p.140.

* 103 The encyclopedia Americana, vol.3, American corporation, New York- Chicago-Washington, D.C, 1961, P49, /bail/

* 104 http://www.yourlegalguide.com/bail/ accessed on 12th September, 2011

* 105 B. H. Campell, Id., p.1188

* 106 code of criminal procedure. Op.Cit., Art. 97; 98para1

* 107 G.CORNU, vocabulaire juridique, 8e ed., Paris, PUF, 2000, pp.514 -555

* 108W. A. Shabas and M. Imbleau, introduction to Rwandan law, Canada,Quebec, les Editions Yvon Blais inc. 1997, P.55

* 109 J.D. HAKIZIMANA, de la mise en liberté devant le TPIR, mémoire,UNR, Butare, 2006, p.8 (translated by the author from french)

* 110P.CHAMBON, le juge d'instruction, théorie et pratique de la procedure, 4e ed., Paris, Dalloz, 1997, p.247 (translated by the author from french)

* 111 code of criminal procedure. Op. Cit., Art.93

* 112 P.CHAMBON, Op.Cit., p.274.

* 113 J.D. HAKIZIMANA, Op.Cit. P.10.

* 114 P.CHAMBON, Op.Cit., pp.274-275

* 115 J. Pradel, droit pénal comparé, Paris, Dalloz, 1995, p. 121 (translated by the author from french)

* 116 Rwandan constitution, Op. Cit., art. 19

* 117 A. MUHAYEYEZU, le droit à un procès équitable, principe fondamentale de droit de l'homme dans la procédure devant les juridictions répressives rwandaises, RJR., vol XVI, No 1, 1992, p.31 (translated by the author from french)

* 118 .P.CHAMBON, le juge d'instruction, théorie et pratique de la procédure, 3e ed., Pari, Dalloz,1980, p.272. (translated by the author from french)

* 119B. H. Campell, Op.Cit., p.294

* 120TUSABE Andrew, conditional release under Rwandan law, memoire, BUTARE, UNR, 1999, P.6

* 121 ,W. A. Shabas and M. Imbleau,Op.Cit. P.63

* 122L. M. mugenzi, Op.Cit.,P.86

* 123 Cambridge encyclopedia, /bond/

* 124N.UMUHOZA, legal analysis of bail system under Rwandan law, BUTARE, UNR, Memoire, 2006, p.6

* 125 RONPJ 0141588S1/11/RG/NM, order no 19/11/NGOMA of provisional release of september, 06, 2011, prosecutor v J.NTIGIRINZIGO (translated by the author from kinyarwanda)

* 126 Encyclopedia Americana vol. 3 Americana corporation, new York- Chicago- Washington, DC, 1961, /surety/

* 127 Htt://www.defenselaw.com/bail-4html accessed on 12th September, 2011

* 128N.UMUHOZA, Op.Cit., p.8.

* 129 RPGR 290036/S1/2005/BG/SA, Order no 47/2005/ TB/GIKONGORO of provisional release of 12/08/2005 prosecutor v T.TWAHIRWA and J.B.MUKURARINDA, stated by N. UMUHOZA, Id., pp29-30

* 130 Code of criminal procedure, Op.Cit., art. 102

* 131M.Georges Brière de l'Isle, Op.Cit., p.346

* 132Id., p348

* 133 penal code, Op.Cit., art. 5

* 134 B. Bouloc, H.Matsopoulou, droit pénal général et procédure pénale, 16e ed., Paris, Editions Dalloz, 2006, P. 416 (translated by the author from french)

* 135penal code, Op.Cit.; art 218 of criminal procedure, Op.Cit., art. 34;39

* 136ibid., art. 42

* 137 Art 221 of criminal procedure, Op.Cit.

* 138 B. Bouloc, H.Matsopoulou, droit pénal général et procédure pénale, 16e ed., Paris, Editions Dalloz, 2006, P. 416 (translated by the author from french)

* 139P.canin, Op. Cit.,p.116

* 140 B. Bouloc, H. Matsopoulou, Op.Cit., P. 442

* 141penal code, Op.Cit., art. 52

* 142 W.A. Shabas and M. Imbleau, Op,Cit.P.61; penal code, Op.Cit., art.54

* 143 M.G.Brière de l'Isle, Op.Cit. p.404

* 144Id.,p398 ; Penal code. Op.Cit., art.66.

* 145 CC B III relating to contracts or conventional obligations, Art. 260

* 146Georges Brière de l'Isle, Op.Cit., p238

* 147Ibid.

* 148 JEAN CLAUDE SOYER, Op.Cit., p. 91

* 149 J.NTAMFURAYINDA, le régime de l'amende en droit pénal rwandais, UNR, mémoire, 1989, pp. 10 -33 (translated by the author from french)

* 150 Id., p.58