Criminal liability for third person's act: case of release on bail

I. 2.2. 4. Error

The error is not expressly provided for by Rwandan penal code as a cause of non responsibility. However, in some cases, it is obvious that the error is likely to remove the element of intent, moral element, and the question is whether in this case, there will or there will be no penalty.

ICC statute or Rome statute provides mistake as a cause excluding criminal responsibility^87(*). Many authors have consider error or mistake as absence of moral element in commission of a crime.

According to LOUIS Marie MUGENZI the imputability (Accountability) is a prerequisite for criminal liability, it requires knowledge and the will of the person. That mental element of the offense has as a mission, to realize the material element of offence^88(*).

In general, the error of law has no influence on the criminal responsibility according to the principle "nemo censetur ignorare legem". Thus, the error of fact as an essential constitutive or aggravating element of offence, modifies and erases even the intention of the offender in respect of that particular element. It is the case for example in a taxi, a traveler who makes a mistake of his bag and takes another rather than his/hers; error of the fact here is an essential element in theft: the ownership of a thing belonging to others, but the intent is not fraudulent.

The mistake of fact may prevent the aggravation of a penalty resulting from aggravating circumstances^89(*). It is the case of a person who kills another while ignoring that he is his father. Therefore, infraction committed is not parricide it is homicide.

The error on law in general is not retained under the maxim 'nemo censetur ignorare legem' . However, case law have recognized the error of law, at least when the error relates to an issue of law of course, but that is not a problem of criminal law, such as it is a mistake of law, commercial and administrative law^90(*). This is the case, for example, an individual who has discovered an object called a treasure. The treasure does not belong wholly to the discoverer, but sometimes the individual does not know and he believes he can keep it and he retains it. In this case he committed the theft in principle, but assumed he was unaware of the civil law which says that the treasure is not exclusive to the finder; this error of law will save him from criminal prosecution.

It's the same case of an individual who is prosecuted for adultery when he believed he was no longer married.

Mistake of fact is what one encounters in the event or individual makes a mistake on something or someone. We can take an example of a pharmacist who is wrong and gives a poison instead of medicine, there is no poisoning even though the result may be the same. There is a lack of carefull^91(*). However the mistake of fact is irrelevant in respect of infringements by carelessness or negligence.

The mistake on fact focuses the materiality of the act itself. It is not provided by any text, but the general rule arising from the case law is that an error of fact excludes the guilt of the agent in terms of intentional offense if certain conditions are met and if not, it does not affect the criminal liability of the agent. The error considered can take many forms: It can be a prerequisite for an offense. It can also consist of behavior itself. In all these cases, the error is exclusive of intention and the person is in good faith, not having been aware of the unlawfulness of his/her act. Here, error is a cause of non guilty.

The error would be a cause of non-accountability related to the psychological element of the offense and especially the knowledge element; thus, it is the lack of knowledge or consciousness that causes the absence of free will. This shows that the error, to which we assimilate ignorance, can demonstrate the good faith of the defendant as penal code has retained the will in criminal acts^92(*).

* ⁸⁷ ICC statute(Rome statute), Op.Cit., art. 32

* ⁸⁸ L. Marie MUGENZI, Op. Cit., p. 61

* ⁸⁹L. Marie MUGENZI, Op. Cit., p .61.

* ⁹⁰M.G. Brière de l'Isle, Op. Cit., p.300

* ⁹¹Id. p.301

* ⁹²Roger BERNARDINI, Op. Cit., p.634