impossible crime in argentina -according to nuÑez-

8/6/2019 IMPOSSIBLE CRIME IN ARGENTINA -ACCORDING TO NUEZ-

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IMPOSSIBLE CRIME IN THE ARGENTINE PENAL CODE

-according to Ricardo Cayetano Nez-.

by: Diego Alejandro Peretti vila.Email box: [email protected].

The following paper is, basically, an attempt of translation of an article

made by Dr. Ricardo Cayetano Nez originally titled: EL CASTIGO DEL

DELITO IMPOSIBLE (Cd. Penal, art 44 4), published in 1958, in the

Argentinian Legal Review La Ley1

.This modest labor of interpreting has been made in order to, first,

contribute minimally to the knowledge of the cyclopean work developed, over

the years and until his death in 1997, by this great jurist and master of

generations of lawyers who was Ricardo Cayetano Nez and second, take

another small step in favor of the comparative study of law.

The original paper that we have here translated for you, was the result of

a review conducted by the author of a contemporary judicial decision in which

the article 44 4 of the Criminal Code of Argentina -still in effect today- was

applied.

It is for the reason mentioned above, that we have avoided to translate the

final chapter of the original version that only makes reference to the concrete

decision of the Court.

Nez, following Herrera, divides impossible crime into two categories,

such as impossibility of right of the offense-objectand impossibility of fact

of the offense-object.

The first category, also called impossibility by lack of type-criminal

offense, is, actually, an equivalent of the well-known legal impossibility

1 NUEZ, RICARDO C.: El Castigo del Delito Imposible, La Ley, vol: 90, pages 602 - 605.

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which is defined as when the act if completed, would not be criminal2. This kind

of cases, according to Nez, are always unpunished and, obviously, they do not

form part of the hypothesis of article 44 4 of the Penal Code3.

On the other hand the second category, to which refers the cited article

and that gathers within itself all cases of factual impossibility is, in turn,

divided into two sub-categories: a) impossibility by the use of absolutely

unsuitable means and, b) impossibility by the use of relatively unsuitable means.

Nez agrees with Herrera about the fact that, in principle, impossible

crime only can be punished when have been used relatively unsuitable means,

however, in conjunction with the named jurist, he holds that there are

exceptional cases of use of absolutely unsuitable means where the punishment is

applicable -they fall within the orbit of article 44 4- because, in those

circumstances, the agent has shown wickedness of mind.

What was said in the previous paragraph have its basis in the fact that

Nez (as well as Herrera) finds the foundation of the punishment of impossible

crime in the principle of the offender's dangerousness.

Impossible crime, for Nez, is not a sub-specie of attempt which has as

its main foundation the legally protected good such as life, property, honor,

etc.- in danger by attacks of the offender.

According to Nez, impossible crime is an autonomous category

-necessarily related to the institution of criminal attempt but cannot be confused

with it- whose ultimate foundation is, as stated above, the offender's

dangerousness which allows the wrongdoer is punished even when the legallyprotected good has not been put in real danger by their actions.

2 GOLD, Alan D.: To Dream the Impossible Dream - A Problem in Criminal Attempts (and Conspiracy)Revisited, 1978, published on: Heionlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/clwqrty21&div=25&id=&page=.

3 A clear example of this kind of impossibility can be found in: Haughton v. Smith (1975. AC 476). In thiscase, Lord Hailsham of Saint Marylebone's vote, citing Lord Widgery in (1973) 2.W.L.R. At 944, defineslegal impossibility as the type of case where the accused has meticulously and in detail followed every stepof his intended course believing throughout that he was comitting a criminal offense and when in the end it is

found he has not committed a criminal offense because in law that which he planned and carried out does notamount to a criminal offense at all.

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THE PUNISHMENT OF THE IMPOSSIBLE CRIME.

(Penal Code, Article 44, 4)

By: Ricardo Cayetano Nez.

Translation from Spanish to English: Diego Alejandro Peretti vila.

TABLE OF CONTENTS:

I. The legal formula and the problem to solve. -II. Classical thesis of

impossible crime by the use of unsuitable means. - III. The use of unsuitable

means under the article 44 4 P.C. . - IV. Impunity for impossible crime by

lack of type-criminal offense (or legal defect in the fact). - V. Lack of type-

criminal offense regardind to the article 44 4 P.C. . VI. The case of the

noted sentence.

I.- THE LEGAL FORMULA AND THE PROBLEM TO SOLVE.

The Senate's Second Committee of codes was the one which, during the

legislative process turned the project of 1917 into the current Penal Code and

proposed the present paragraph 4 of article 44 according to which: If the crime

is impossible the punishment shall be decreased to a half and may be reduced to

the legal minimum or exempt from it, according the degree of individual

dangerousness shown by the offender. There was no explanation of this rule,which is part of the set of provisions that article 44 contains about the

punishment for attempt, from the said Committee, as well neither from the

Special Committee of the House of Representatives that accepted the proposal

sanctioned by the Senate4. Therefore, the formation process of this provision

says nothing about the real role played, in order to the punishment for an

4 MORENO: El Cd. Penal y sus antecedentes, t. II, P. 419.

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impossible crime, by the principle of the offender's dangerousness.

II. CLASSICAL THESIS OF IMPOSSIBLE CRIME BY THE USE OF

UNSUITABLE MEANS.

Traditionally, the punishment for an impossible crime has had its basis in

two different ideas:

a) The Italian classical doctrine has accepted the penalty for an impossible

crime only if the wrongdoer had used means that, although, they were

inadequate, for the particular case, to perpetrate the attempted crime, in other

cases he could have committed the full offense: impossible crime was only

punished when the perpetrator used relatively unsuitable means. Its foundation

has been the use ofcompletely unsuitable means could not awaken the fear of an

injury to the legal right that -the offender- wanted to attack, because of the

ineptitude of the action sequence, whatever the passive subject of the attack and

whatever the circumstances in which it have been carried out 5. The same

argument, albeit with differences, held the German classical doctrine, but their

numerous arguments were not able to overcome the clarity and scientific

accuracy of the Italians6.

b) Otherwise, a part of the German classical doctrine and Supreme Court

based the punishment for impossible crime on the evil intent. Their reasons are:

1) in the case of attempt, the criminal will is the phenomenon against which is

directed the criminal law; 2) there are no actions cannot be able to cause the

criminal result targeted by the offender in all cases; while, in the particular case,

every action that did not lead to the same result has shown itself absolutely

unable to produce that precise effect; 3) the essence of attempt rest on the

absence of the crime's objective element, which would lack if the most

5 See CARRARA, Reminiscenze di cattedra e foro, 2, Firenze, 1950, p. 315.

6 See MITTERMAIER, Contribuzione alla dottrina del conato a delinquere, 9 (Scritti germanici di dirittocriminale, t. I, Napoli, 1852, p. 91).

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insignificant item did not concur, so it doesn't matter if the author have used

suitable or unsuitable means7.

III.THE USE OF UNSUITABLE MEANS UNDER THE ARTICLE 44 4

P.C.

Julio Herrera, a strong supporter of the thesis which says only the use of

relatively unsuitable means allows punishment for impossible crime8, however,

advocated about criminal liability of its agent, not as an actor convicted of

criminal attempt but as a sui generis offense perpetrator, in case of use of

absolutely unsuitable means, if wickedness was found in him9.

To not accept that article 44, basing the punishment for impossible crime

on the offender's dangerousness, has followed the Herrera's argument, we could

say this doctrine forgets the fact that impossible crime is a kind of attempt, and

attempt, according to the text of the article 42, requires of executive acts of the

offense, which, in turn, requires of appropriate actions to consummate the crime.

But, in fact, the terminology of the article 44 (4) indicates that the Parliament

did not intend to subordinate the institution regulated in the last precept to the

requirement that it was an attempt with all conditions of article 42. The

Legislator says here the attempted crime be impossible but not attempt -in

itself- must to turn out to be impossible. Thereby, separating the concept of

criminal impossibility which had been previously accepted for criminal

attempt, allows it to concur even when being used means that would not imply-in any way- a beginning of execution of the specific crime that the agent had

intention to commit.

To admit that the article 44 has replaced the principle of the suitability of

means by the offender's dangerousness with the purpose of punishing

7 CARRARA, Reminiscenze cit., ps 321, 325, 326, 328 y 330; MEZGER Tratado de derecho penal t. II, 2ed., Madrid, 53, II; SOLER, Derecho penal argentino, t. II (1945)M 50, IV.

8 See La reforma penal, Buenos Aires, 1911, nms. 300 a 302.9 Op. cited, n. 303.

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impossible crime, we have not found another impeding reason.

Once accepted that the offender's dangerousness turns admissible

punishment for the crime that becomes impossible on account of the use of

relatively or absolutely unsuitable means, it must be observed that through this

approach we can arrive at punishment of the use of means completely devoid of

danger to the right protected by criminal law and to which the wrongdoer wants

to attack. This results from the fact that materiality of impossible crime is

satisfied with that kind of actions, which become criminal by the agent's belief

he is performing executive acts of a given crime. In this manner, it is legitimate

to punish not only the attempt of killing someone using harmless herbs, but also

the intent of slandering another person with laudatory phrases, in spite of the

fact that these actions does not represent a danger , even in the merely

preparatory acts, of a truly criminal activity 10. So, it is not small thing, in true

doctrine, what the Penal Code sacrificed for the sake of the principle of the

offender's dangerousness.

IV. - IMPUNITY FOR IMPOSSIBLE CRIME BY LACK OF TYPE-

CRIMINAL OFFENSE (OR LEGAL DEFECT IN THE FACT).

The classical jurists had already raised this issue. For MITTERMAIER11

there is also an unpunished attempt when the object, according to his legal idea,

on which the crime should be committed, is not of the nature that is required by

its essence of fact. This is the case -adds the author- of whom, unbeknownst to

him, wants to kill an opponent who is already dead; of whom has the intention

10 HIPPEL says the subjective theory, which argues that basis of punishment for impossible crime reside incriminal will, drives logically to punish the attempt to commit every single crime, even in the case ofpreparatory acts -because also here there is dolus- (HIPPEL, Manuale di diritto penale, Napoli, 1936; p.221, note 6). He even says German Supreme Court, due to the extensive application of subjectivist principle,felt compelled to exclude the punishment for attempt carried out with superstitious means. WELZEL triesto show yet that subjective theory does not lead to the punishment of preparatory acts and attempt to explainwhy German Supreme Court has reasonably ruled out the punishment for the superstitious attempt.

(Derecho Penal, Buenos Aires, 1956, p. 197 y 198).11 Contribuzione alla dottrina del conato a delinquere cited, 10.

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of stealing and, by chance, seizes his own things; and is also the case of the

husband who wants cheat on his wife and sleeps with her by accident. The main

basis, according to MITTERMAIER, for arguing such criminal attempts cannot

be punished, is an absence of the right that the crime threatens or offends in

every single case and this right is what the law custody with its sanction 12.

Herrera has distinguished these cases of impossibility of right of the

offense-object, when object does not exist or lacks any essential quality for its

existence (in terms of the law) from those other of impossibility of fact of that

object. The impossibility of fact -says Herrera- does not preclude the existence

of criminal attempt, because it is among the merely accidental causes beyond

the control of the agent, it represents the randomness that prevents

consummation of the crime. Herrera cites the case of a thief who opened the

collection box of a church to steal it and found it was empty and the other case

of a robber who put his hand into the pocket of his victim and found nothing

inside it13.

German classical doctrine has also made the said distinction, and a part of

this has been made in order to sustain the impunity of that which Herrera calls

impossibility of right of the offense-object. In fact, the theory of lacking of type

criminal offense (Mangel am Tatbestande) that have yet been exposed among

us14, is nothing but a more complete exposition of the fundamental idea that

leads the concept of the primitive theory about impossibility of right of the

offense-object.

12 If in the case included in this issue, it is desired to deny the impunity would be necessary to state, to beconsistent, says MITTERMAIER, the most ridiculous things. Would need to convict of attempt of inducedabortion whom supplies an abortive to a little girl to whom he believes is pregnant, but actually she wasn't:of injuries the one who hit another in his wooden artificial arm: of kidnap whom tries to enter by force intothe navy a marine; would need to punish for attempt of incest the one who wanted to sleep with his relativebut, in the dark, he made it with a prostitute. We should talk about attempt of slandering when A accusesB of stealing and later he releases that B had really stolen; C should be called impostor who posed forrelative even though it was later discovered that he really was; should be admitted an attempt of bigamywhen D marries a woman believing that his first wife is still alive even though then be proved that hisformer wife had died long before the second marriage: E should be convicted of resisting authority againstsomebody that pretended to be a police officer. (op. and places cited.).

13 La reforma penal cited. n. 300.

14 SOLER, Derecho penal argentino cited, 50, VII; JOSE MANUEL NUEZ, Delito imposible y defectoen el tipo (Recopilacin Ordenada, mircoles 22 de diciembre de 1943).

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Ernst Beling has clearly distinguished between cases where impossibility

results from a lack of conclusion of the fact that belongs to the type-criminal

offense toward which tends the agent's will (impossibility of fact of the offense-

object, according to Herrera) and those cases which are not considered

punishable because of impossibility of the crime rises from the absence of some

elements required by the type corresponding to the specific attempted crime.

But, unlike what Herrera says that limits his doctrine to the existing legal flaws

in the legal objectivity of crime (lack of life in the assaulted subject, own thing

and so on) 15 , Beling also attributes such defects to the means (poison in the

case of poisoning), to the agent status (public official) and to the special or

temporary circumstances (time of war) required by the type-criminal offense

which actor wants to perpetrate in the concrete case 16.

V.- LACK OF TYPE-CRIMINAL OFFENSE REGARDING TO THE

ARTICLE 44 4.

Our authors and Courts have held that, under article 44 4, are also

punishable criminal attempts by acts which do not fit into the materiality of the

specific crime that offender wants to commit. According to Jos Manuel Nez,

into the article 44 is included any ineffective criminal attempt. Reaches this

conclusion analyzing the lack of type-criminal offense doctrine. The Courts and

the jurists have accepted, for example, that constitutes a punishable impossible

abortion crime, performing abort maneuvers on a non-pregnant woman17. Nevertheless, as early as 1951, in our book titled Offenses against

property, we have spoken out against this approach (see p. 271, note 44). Even

15 MITTERMAIER shares that point of view, see op. cited 10.16 See Beling, Die Lehre vom Verbrechem, Tbingen, 1906, page 328 ff. . However not all German authors

accept impunity caused by impossible crime impunity by lack of type-criminal offense (see, for example,HIPPEL. Deutsches Strafrecht, volume II, Berlin, 1930, 29, IV, 1, 2 and 30, IX, 1. idem, Manuale cit., 46, V..

17 Cm. Crim. Y Correccional de la Capital, agosto 4 de 1944, J.A., 1945-I, p. 292, and its commentatorERNESTO GAVIER, Aborto imposible seguido de muerte.

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today, after several meditations, we confirm the ideas outlined there. Punishment

of the impossible crime for lacking the total sequence of facts of some of the

elements required by the criminal offense included in agent's intent, in effect,

leads to the punishability of acts not repressed by law as crimes. The author's

mistake about the occurrence of that element would lead to extend the scope of

criminal protection outside the circle fixed by the set of criminal acts

established, previously, by the Parliament; transforming impossible crime, not in

an ancillary figure in the main set defined by the special part of the substantive

criminal law, with the role of extending the liability for the criminal offense

below limits of its consummation; but in a figure whose mission would be to

extend the criminal punishment to an area located over the limit of the circle of

criminality descriptively predetermined by law, in obedience to the principle

of reserve of law. This would lead us to the admission of species of putative

offenses which would not be amplifying of the punishability for defect of

consummation of the criminal type, but instead they would turn out to be

punishable facts with different characteristics.18

18 Considering them as species of putative offenses and based on the reception of the principle nullun crimen,nulla poena sine praevia lege, calls the impunity of impossible crimes by legal defects of the fact (BLASCOFERNANDEZ DE MOREDA, Delito imposible y putativo de determinacin conceptual, nms. 48 ff.Review LA LEY, t. 82, P. 777). However, in dealing with the interpretation of the article 44 4, does not

draw his attention the jurisprudence that condemns for impossible abortion whom has performed abortmaneuvers on a non-pregnant woman.

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