Criminal liability for third person's act: case of release on bail
par Pascal KAVUTTSE
National university of Rwanda - Licence 2011
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.
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.
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?
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.
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.
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.
* 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
* 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