Impossible crime in the argentine penal code, according to Ricardo Cayetano Núñez

The following paper is, basically, an attempt of translation of an article made by Dr. Ricardo Cayetano Núñez originally titled: "EL CASTIGO DEL DELITO IMPOSIBLE (Cód. Penal, art 44 § 4º)", published in 1958, in the Argentinian Legal Review "La Ley"1 .

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 Núñez 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.

Núñez, following Herrera, divides impossible crime into two categories, such as "impossibility of right of the offense-object" and "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" which is defined as when the act if completed, would not be criminal 2. This kind of cases, according to Núñez, 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.

Núñez 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 Núñez (as well as Herrera) finds the foundation of the punishment of impossible crime in the principle of the offender's dangerousness.

Impossible crime, for Núñez, 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 Núñez, 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 legally protected good has not been put in real danger by their actions.

THE PUNISHMENT OF THE IMPOSSIBLE CRIME.

(Penal Code, Article 44, § 4)

By: Ricardo Cayetano Núñez.

Translation from Spanish to English: Diego Alejandro Peretti Ávila.

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 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 of completely 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

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

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

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 it"13.

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.

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 José Manuel Núñez, 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

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

NOTAS:

1 NUÑEZ, RICARDO C.: "El Castigo del Delito Imposible", La Ley, vol: 90, pages 602 – 605.

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 this case, Lord Hailsham of Saint Marylebone's vote, citing Lord Widgery in (1973) 2.W.L.R. At 944, defines legal impossibility as the type of case "where the accused has meticulously and in detail followed every step of 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 not amount to a criminal offense at all".

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

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

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

7 CARRARA, "Reminiscenze" cit., ps 321, 325, 326, 328 y 330; MEZGER "Tratado de derecho penal" t. II, 2ª

ed., Madrid, § 53, II; SOLER, "Derecho penal argentino", t. II (1945)M § 50, IV.

8 See "La reforma penal", Buenos Aires, 1911, núms. 300 a 302.

9 Op. cited, n. 303.

10 HIPPEL says the subjective theory, which argues that basis of punishment for impossible crime reside in criminal will, drives logically to punish the attempt to commit every single crime, even in the case of preparatory 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 tries

to show yet that subjective theory does not lead to the punishment of preparatory acts and attempt to explain

why 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.

12 If in the case included in this issue, it is desired to deny the impunity would be necessary to state, to be consistent, says MITTERMAIER, the most ridiculous things. Would need to convict of attempt of induced abortion 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 into the navy a marine; would need to punish for attempt of incest the one who wanted to sleep with his relative but, in the dark, he made it with a prostitute. We should talk about attempt of slandering when "A" accuses "B" of stealing and later he releases that "B" had really stolen; "C" should be called impostor who posed for relative even though it was later discovered that he really was; should be admitted an attempt of bigamy when "D" marries a woman believing that his first wife is still alive even though then be proved that his former wife had died long before the second marriage: "E" should be convicted of resisting authority against somebody 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 NUÑEZ, "Delito imposible y defecto en el tipo" ("Recopilación Ordenada", miércoles 22 de diciembre de 1943).

15 MITTERMAIER shares that point of view, see op. cited § 10.

16 See Beling, "Die Lehre vom Verbrechem", Tübingen, 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 Cám. Crim. Y Correccional de la Capital, agosto 4 de 1944, J.A., 1945-I, p. 292, and its commentator

ERNESTO GAVIER, "Aborto imposible seguido de muerte".

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 (BLASCO FERNANDEZ DE MOREDA, "Delito imposible y putativo de determinación conceptual", núms. 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 abort maneuvers on a non-pregnant woman.

Autor:

Diego Alejandro Peretti Ávila