Understanding Criminal Act Phases: From Conspiracy to Execution
Requirements
The contest of two or more qualified persons to commit the crime. The conflict of wills between them. The executive decision of each one to pursue the crime. A significant time lapse between agreement and implementation, assessing the resolution’s strength, not classified as spontaneous mutual agreement. Punishment as conspiracy requires no action has commenced.
Proposition
“When you have decided to commit the crime, invite another or others to execute.”
Difference between proposition and induction: Induction doesn’t imply willingness for self-realization, while the proposal itself is punishable. Requirements:
- Invitation to execute the crime.
- Actions directed to commit a specific crime.
- Both proponent and guest must be proper subjects.
Provocation
According to Art 18, “the exhibition before a crowd or by any means of dissemination of ideas or doctrines that extol the crime or the perpetrator.”
Four elements:
- Activity aimed at getting others to consummate a crime.
- Commission punishable by CP.
- Carried out through a public medium.
- Involves one or more specific crimes.
- Direct incitement.
- Intended for a group of people.
Induction
Provocation followed by implementation, punishable as induction.
Apology
A variety of provocation with the same requirements. May raise constitutionality issues with freedom of expression.
Executive Phase: Tentative (Unfinished/Finished)
The offense starts with the commission of the typical act. Two positions:
- Objective-formal: Performing acts immediately described by the verb type. Problematic for crimes of results and pure activity/omission.
- Objective-material: Starting when the subject performs acts closely united to the type. Difficulty in identifying immediate actions not described in the type.
Issue 29: Emergence of Forms of Criminal Fact: Criminis Iter
Iter Criminis
Set of stages a criminal act passes through, from the idea to perfection. Two stages:
- Internal Phase: Takes place in the author’s mind, not punishable by criminal law. “Nemo patitur cogitationes poena” (Thoughts cannot be punished).
- External Phase: Deciding to commit the offense, inviting others, performing acts indicating the decision. Distinction between preparatory acts and the implementation phase (attempt and consummation).
Preparatory Acts
Actions performed before execution, creating preconditions for the crime. “How to act that creates the right preconditions for the realization of a planned crime.”
Punishable Preparatory Acts Under Spanish CP
Generally, preparatory acts are not punished, except for a “numerus clausus” of situations in Article 17 and Art. 18:
- Conspiracy
- Proposition
- Provocation
Other crimes may be punished in their preparatory phase based on importance or characteristics suitable for legal interest protection (e.g., Article 141 Homicide, Section 448 offenses against the international community).
Conspiracy
According to Art 17, conspiracy occurs when two or more persons conspire to commit a crime and resolve to execute it. The law requires five elements.