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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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I. 2.1 objective causes or justifications of non responsibility

The objective reasons for excluding criminal responsibility, or granting excuses, are external circumstances to the offender. The act committed is qualified as an offense, but in presence of one of these causes, the offence loses that qualification. The perpetrator cannot be charged of criminal or civil liability52(*).

I. 2.1.1 justifications resulting from the order to commit a crime

The order of law or lawful authority has the effect of removing criminal liability to any person who claims for it53(*).

I. of the law

The performance of the act required by the law or regulation justifies the perpetrator. Thus, the physician who denounced to the health authority communicable diseases known to him does not commit a breach of confidentiality as the law requires it to do so. Obviously, the justification of the act plays only if the agent discloses within the strict limit imposed by the law54(*).

It is the case of article 70 of Rwandan penal code, which punishes the disclosure of professional secrecy, it states also that there are certain cases the disclosure of professional secrecy is allowed. Therefore, there is not any offence when the act committed is ordered by the law or a legitimate authority55(*). Thus, the article 327 of penal code shows clearly that order of the law is cause of non criminal responsibility. It states that without prejudice of article 325 and 326, there is no criminal liability of a physician who practices the abortion or a woman who gives her consent for abortion if all conditions provided by in this article are fulfilled56(*).

In some cases, for example, the arrest of a thief in case of red- handed is obligation to every citizen57(*). Code of criminal procedure in its article 33 states that if a person is caught red handed or taken to be committing an offence, any person is allowed to arrest an offender in case of failure of the judicial police officers58(*).

I. command of a legitimate authority

By lawful authority, means any public authority, whether administrative, judicial or military. But a private authority (an employer, a parent) cannot be considered as legitimate authority in the meaning of the law. Indeed, the act ordered by legitimate authority must, of course comply with the law59(*). The authority is legitimate when exercised within the limits or within jurisdiction conferred to him/her by law60(*).

The question is where the legitimate authority orders an act contrary to law. The subordinate should or not perform the act?

The doctrine proposed several theories:

The theory of passive obedience focuses on discipline, the subordinate must respect all orders, even illegal, and the act done is then justified61(*). The system of passive obedience is invoked particularly in the military hierarchy, as we know, discipline is the main tool of armies62(*).

Theory of rational obedience or intelligent bayonets (l'obéissance raisonnée ou baïonnettes intelligentes ou encore des manches de lustrine réfléchies) : Considers that subordinate have to appreciate the legality of orders before acting, so, an illegal order does not entail any justification63(*).

Intelligent bayonets, bear although, controversial sense, that why the people must trust in their judgments. If the order is manifestly illegal of course, obedience to this order does not fit into the context of a defense64(*).

Intermediate theory: it distinguishes between the manifestly unlawful order and the order in which the illegality is not obvious. We must obey at the second but we should not obey the first. This is the third theory that was selected by many criminal codes65(*).

The Rwandan penal code has preferred the intermediate theory. Article 229 of Rwandan penal code states that any person accused of an offence will be exempted of penalty if he/she proves that he/she have acted on command of a superior legitimate authority; then ,the penalty will be pronounced against the superior. Therefore, the subordinate will be exempted only if the order is not manifestly illegal. If the order is manifestly illegal, the subordinate is accomplice. In all cases the superior authority can never escape the penalty resulting from such offence66(*).

Indeed, superior order is not a defense for accused merely to show that the act was done by him in obedience to the order of a superior, whether military or civil. The fact that the person was acting under orders may, nevertheless be very important67(*). Under international context, the statute of international court, ICC, provides in article 30 that «the commission of a crime pursuant to an order of a government or of a superior does not relieve a person of criminal responsibility unless that person is under a legal obligation to obey orders of government or the superior in question; the person did not know that the order was unlawful and that the order was not manifestly unlawful»68(*).

* 52 P. Cannin, Op. Cit., pp.75-76

* 53 penal code Op. Cit., art 70 para .1

* 54P. Canin, Op. Cit., p.83

* 55 penal code,Op. Cit. art. 70

* 56 Id., Art.327

* 57 M.Georges Brière de l'Isle, Op. Cit., p.155

* 58 code of criminal procedure, Op. Cit., art33

* 59P. Canin, Op. Cit., p.84

* 60L. Marie MUGENZI, Op. Cit., p. 60

* 61P. Canin, Op. Cit., p.84

* 62M.Georges Brière de l'Isle, Op. Cit., p156

* 63P. Canin, Op. Cit., p.84

* 64M.Georges Briere de l'Isle, Op. Cit., p.156

* 65P. Canin, Op. Cit., p.84

* 66 penal code, Op.Cit., art. 229

* 67 D. Ormerod, p.327

* 68 ICC statute. art. 30 (Text of the Rome Statute circulated as document A/CONF.183/9 of 17 July 1998and corrected by process-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16January 2002. The Statute entered into force on 1 July 2002).

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