Iter Criminis in Criminal Law: Preparatory Acts & Attempt
Iter Criminis: Preparatory Acts, Attempt, and Consummation
Introduction
The iter criminis refers to the process involved in committing a crime. It encompasses the stages from the initial decision to commit the crime and the preparation of necessary means, to the execution of the criminal act and the potential production of the intended result.
When all elements of the crime are fulfilled, including the resulting harm, the offense is considered consummated. In such cases, the perpetrator is subject to the penalty prescribed for the specific offense (Art. 61: “When the law prescribes a penalty, it is understood that it is imposed on offenders of consummated crimes.”).
However, it’s not always necessary for the offense to be consummated for the act to be punishable. The Criminal Code includes provisions for extending criminal liability to preparatory acts and attempts.
This lesson examines the conditions under which acts occurring throughout the various phases of the iter criminis can be punished.
Our criminal law system recognizes the following:
- Exceptional and specific preparatory acts: Only those expressly defined by law are punished (conspiracy, instigation, and provocation: Arts. 17 and 18), and only with regard to specific crimes mentioned therein (Arts. 17.3 and 18.2).
- Generic attempt: Covered by Art. 15, with the exception of offenses committed through negligence.
These stages, preceding consummation, are characterized by a discrepancy between the objective and subjective elements of the crime, preventing full criminal prosecution. This results in the presence of a subjective element of injustice.
Preparatory Acts
1. Legal Regulation
Arts. 17 and 18 of the Criminal Code establish an exceptional system for the criminalization of preparatory acts.
2. Concept
Preparatory acts are actions taken (not mere thoughts like the internal resolution to commit a crime) before the execution phase begins, and are subjectively oriented towards the consummation of the crime.
3. Classes
Our Criminal Code generally criminalizes three types of preparatory acts:
- Conspiracy: Occurs when two or more individuals agree to commit a crime and decide to carry it out (Art. 17.1).
- Proposition: Exists when someone who has decided to commit a crime invites another person or persons to participate (Art. 17.2).
- Provocation: Occurs when someone directly incites others to commit a crime through print, broadcasting, or any other similar means, advertising, or before an audience (Art. 18.1).
Apology is only considered a crime as a form of provocation if its nature and circumstances constitute a direct incitement to commit a crime.
If executive acts of the offense were to commence, preparatory acts would be absorbed by the attempt or consummation, as appropriate (principle of absorption, Art. 8.3).
However, if the preparatory acts are not followed by further action due to the choice of those involved, it could be considered withdrawal and grounds for acquittal. However, unlike with attempts, the Code does not explicitly address this scenario.
Only in Art. 18 in fine does it state: “If the provocation is followed by the commission of the offense, it is punishable as induction.”
4. Rules for Determining the Penalty
Unlike attempts, the penalty for preparatory acts is not specified in the regulations for each crime, but rather by a general rule: a reduction of one or two degrees from the penalty for the completed offense (e.g., Art. 141).
The Attempt
1. Legal Regulation
Arts. 15, 16, 62, 63, 64, and 638 of the Criminal Code establish a general system for the criminalization of attempts, with the exception of offenses committed through negligence.
2. Definition
Art. 16 defines an attempt as follows: “There is an attempt when the subject begins the execution of the crime directly by external acts, practicing all or part of the acts that objectively would produce the result, and yet this does not occur for reasons independent of the author’s will.”
An attempt is an imperfect execution of a crime. Subjectively, it requires intent (there is no reckless attempt). Objectively, it requires the commencement of the crime’s execution (unlike most preparatory acts), with the performance of all or part of the executive acts (finished or unfinished attempt, respectively), without achieving the intended result (negative condition), due to reasons beyond the perpetrator’s control (otherwise, it would be considered withdrawal from the attempt).
3. Classes of Attempts
Depending on whether all or only some of the acts that would objectively produce the result are carried out, attempts can be classified as:
- Finished attempt: The trigger is pulled, but the bullet doesn’t fire because the gun malfunctions.
- Unfinished attempt: The perpetrator is unable to pull the trigger because they are apprehended.
Distinction between finished and unfinished attempts: Both forms share the characteristic that the intended result does not occur. The execution phase is determined by the observable external acts performed. If the perpetrator believes they have completed all executive acts, but objectively they have not, it is an unfinished attempt. Similarly, if the perpetrator believes they have completed the crime, but objectively it is an imperfect consummation, it is still considered an attempt.
The author’s plan must also be considered when objectively determining whether the execution phase has ended. However, if the production of the outcome depends solely on chance after the executive acts have been performed, it is a finished attempt. The perpetrator’s awareness of whether further action is needed after the initial attempt fails may be relevant for determining withdrawal.
Objectively distinguishing between finished and unfinished attempts can be challenging for some crimes, as it’s difficult to imagine completing all executive actions without the result occurring. In practice, there is no significant difference in the legal consequences between finished and unfinished attempts. The relationship between them is governed by the principle of absorption, where the earlier phase is absorbed into the later one as the crime progresses towards consummation, unless there are significant interruptions in the execution. The theoretical difficulties in distinguishing between them are resolved in practice by the sentencing guidelines in Art. 62.