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