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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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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(*).

* 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

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