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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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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(*).

* 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)

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