Elements of Criminal Attempt and Voluntary Desistance
Elements of Criminal Attempt
There are four objective factors:
- Performance of Execution Acts: The subject must move beyond the internal phase and preparatory acts, performing external actions. This includes practicing at least part of the implementing acts in an unfinished attempt, or all in a finished attempt.
- Criteria for Determining Completion:
- Objective Criteria: When all necessary acts for consummation occur, it’s a finished attempt.
- Subjective Criteria: Completion is based on whether all acts planned by the subject were performed.
- Mixed Criteria: Objective criteria are considered alongside the author’s plan.
- Uncontrollable Factors: The crime’s consummation must not be reached due to factors beyond the subject’s control.
- Intent (Subjective Element): Intent must cover the executed acts and all elements of the offense. Negligence or lack of intent is not applicable.
Voluntary Desistance
Art. 16.2 CP
A person is exempt from criminal responsibility if they voluntarily prevent the crime’s consummation, either by giving up on implementation or stopping the result’s production. This applies differently to finished and unfinished attempts.
- Unfinished Attempt: Stopping the execution is sufficient.
- Finished Attempt: Additional action is required to prevent the result.
However, any acts committed before withdrawal that constitute a criminal offense remain punishable (e.g., injuries).
Ineffective Attempt
Conduct aimed at a criminal act that cannot lead to consummation due to factual or legal grounds. This is akin to a reverse type error, where the subject believes all typical elements are present when they are not.
Consummation
The offense is fully realized when all elements of the offense type are completed, including the typical result where applicable.
Principle of Punishment of Acts
Theories
- Subjective Theory: Focuses on the will to harm the legal right.
- Objective Theory: Punishment is based on endangering the legally protected right.
- Mixed Theory: Combines will and the impact on collective security.
Spanish CP
Preparatory acts are not punishable, with exceptions. Attempted crimes receive a lesser penalty than completed crimes.
Implementation Phase of Crime
Begins with the attempt, which is subsidiary to completion. Article 15.1 CP states that both consummated crimes and attempts are punishable.
Types of Attempts
- Unfinished Attempt: The offense starts but doesn’t complete.
- Finished Attempt: Execution is complete, but the result doesn’t occur due to external factors.
Sentencing rules are in Articles 62 and 63 CP. Mistakes are punished only when accomplished, except for attempts against persons or property (Article 15 CP).