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

I. 2.2. Subjective causes of non responsibility or causes of non imputability

Being criminally liable, the author must have mental faculties of thinking and must also have free will to act^77(*).

I. 2.2. 1.mental diseases / insanity

There is no criminal responsibility if the defendant was insane at the time of action, or when he/she was in a state of insanity at the time of action or if he/she was forced irresistibly^78(*).

In case of insanity, there is not any infraction because there is no moral element, so, the perpetrator cannot be sued or convicted he/she must be acquitted. Indeed, insanity is a subjective cause of non liability^79(*), which means it does not extend to co-authors and accomplices who were not insane at the time of commission, the author must be only liable for civil responsability^80(*).

All forms of insanity remove the individual control of his actions committed at such time. Dementia or insanity has the effect of suppressing consciousness and free will of an individual, and consequently, his criminal responsibility^81(*). The insanity must be total, means that it must have caused a complete mental disability in mental faculties if not; it could be considered as mitigating factor^82(*).

I. 2.2. 2.constraint

The constraint is a psychological cause that removes the freedom of will. Whether physical or moral, constraint must be irresistible and come out of the person who invokes it. It will remove the responsibility if the act of committing the offense was the only way to escape the threat^83(*). In contrary to neuropsychological or psychiatric disorder (insanity) that destroys the capacity for discernment, the constraint suppresses the freedom of action of the agent.

Constraint (physical or moral), must have irresistible and unpredictability characters^84(*). The irresistible means it must be absolutely impossible to be able to resist and to do otherwise he did. On the subject of unpredictability is considered that the person who was at fault before the action cannot invoke the cause of non-accountability. A person cannot invoke the constraint resulting from his or her own fault.

The removal of the responsibility or the accountability means that there is not moral element. Accountability presupposes free will; in case of constrain the will is not free. Therefore, the disappearance of the mental element of author cannot extend to the coauthors and accomplices reason why the constraint is subjective cause of non imputabililty^85(*).

I. 2.2. 3. Minority / infancy

Rwandan penal code provides the age from which the person is criminally liable. Therefore, minors are classified in two categories: absolute minors and relative minors, among them some are criminally responsible with mitigation others are not.

Article 77 of Rwandan penal code states that any person aged at least of fourteen but under eighteen years is criminally liable, but penalties are decreased comparing to those against adults^86(*). Rwandan penal code did not state in its provisions if the minor under fourteen are totally irresponsible.

* ⁷⁷P. Canin, p.76

* ⁷⁸ Article 70 penal code, Op. Cit.

* ⁷⁹ .M.Georges Brière de l'Isle, Op.Cit., p.293

* ⁸⁰ Article 71 penal code, Op. Cit.

* ⁸¹ penal code, Op. Cit., art70

* ⁸²L. Marie MUGENZI, Op. Cit., p.57

* ⁸³Idem p.58

* ⁸⁴P. Canin, Op. Cit., p.80

* ⁸⁵M.Georges Brière de l'Isle, Op. Cit., p.296

* ⁸⁶ penal code, Op. Cit., art. 77