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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

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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.1.1. 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(*).

* 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 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

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