Criminal Law: Attempt and Consummation of Crime
Attempt
Depending on the reason why the crime is not achieved, the results distinguish between cases where it is due to defects in the causal course or the absence of the object against which the crime is planned:
Suitable or Relatively Inept Attempt (Due to Defects in the Course of a Causal Nature)
Offense. Includes cases in which “the means”, objectively assessed ex-ante and from a general perspective, are abstractly and reasonably fit to cause the typical result but cannot reach it due to the presence of obstacles that may be assessed ex-post.
For example, those where the result is not caused by a defect existing in the medium (the gun had no bullets, the trigger was jammed, the door that was intended to be accessed was reinforced and could not be opened with the levers carried).
Quite Inept or Unreal Attempt (Due to Defects in the Course of an Absolute Causal Nature)
Unpunished.
STS 1388/1997, 10-11: “Only the inept attempt with absolute ineptness, or the unreal or imaginary, such as aiming to kill the enemy with spells or voodoo practices, is excluded from the penalty. These, but not the relative ineptness, whose inefficiency may reveal a temporary or momentary lack of attention to the circumstances, but without certifying their potentiality in other conditions.”
Classic example: attempt to kill with voodoo practices.
Impossible Crime (Due to Lack of Subject)
Offense, with discussions and exceptions. In some cases, it has been sanctioned, as in condemning those who set fire to a house with the intention of killing someone who was not there at the time of the events. In other cases, it has been acquitted, as in the case of someone who enters a room where they could not steal anything because it only contained trash.
Rules for Sentencing and Waiver by Absolutory Excuse in Attempt
When, despite the suitability of the means, the result does not occur for reasons beyond the control of the author (resistance of the victim, police custody, mechanical failure of the murder weapon, etc.), we are faced with a regular punishable attempt. In such cases, according to Art. 62 of the Criminal Code, the penalty lower by one or two degrees than that prescribed by law for the offense shall be imposed.
Art. 62: “The perpetrators of an attempted crime shall be punished with the penalty lower by one or two degrees than that prescribed by law for the offense, to the extent that it considers appropriate, taking into account the danger inherent in the attempt and the degree of execution achieved.”
Art. 64: “The above rules shall not apply in cases of attempt and complicity that are specially punishable by law.”
By contrast, when the result is not caused by the voluntary decision of the author, this is the “withdrawal in the attempt”, which, by express decision of the legislature, goes unpunished.
Withdrawal in an attempt must be distinguished from cases of repairing the damage already caused by the completed offense, which, at most, allow the application of a mitigating factor, with the exception of some cases for which the Code provides for the implementation of an excuse of post-criminal acquittal (such as tax adjustment).
Kinds of Withdrawal
- The “voluntary withdrawal” in the strict sense, which is the neglect (passive) in the performance of executive acts, the attempt still being unfinished (not just pulling the trigger of the gun).
- The “effective repentance”, which consists of the performance (active) of any conduct aimed at preventing the production of results that would otherwise arise, the attempt being finished (taking to the hospital a person who has ingested poison).
Both situations benefit from an excuse of acquittal (see item 9), by which the legislature attempts to motivate the author of the attempt to guide their actions towards the outcome of avoiding harm, with the promise that, if successful, they will be exempt from the penalty; otherwise, the penalty for the attempt already made should apply.
In any case, the excuse of acquittal may waive the penalty for acts that may have been executed and constitute another crime.
Art. 16.2 of the Criminal Code: “Those who, having attempted a crime, prevent its consummation voluntarily, or abandon the execution already begun, thus preventing the production of the result, shall be exempt from criminal responsibility, without prejudice to the liability they may have incurred for acts already performed, if they constitute, in themselves, another crime or misdemeanor.” For the case of co-offenders, Art. 16.3 provides that “he or they who desist from the execution already begun, and prevent or attempt to prevent, firmly and decisively, the consummation, shall be exempt from criminal responsibility, without prejudice to the liability they may incur for acts already performed, if they constitute, in themselves, another crime or misdemeanor.”
Consummation
Consummation is the completion of all the elements constituting the crime, which depends on the nature and structure of each offense (if it is a crime of danger or injury, instantaneous, permanent, etc.).
Consummation should not be confused with the exhaustion of the offense, understood as the ultimate objective pursued by the author. Purposes other than the type are irrelevant for this purpose. Thus, whoever kills their spouse to collect life insurance, the crime is homicide (or murder), regardless of whether they finally collect it.
Determining the time when the crime is committed is relevant for determining the applicable law in time and space, the admissibility of participation, or the determination of dies a quo for the purposes of the statute of limitations.