Attempted Crime

ATTEMPTED CRIME. - The notion of attempt (conatus) was outlined by the Italian jurists of the Middle Ages, who correctly recognized its essence in cogitare, agere sed non perficere.

The Italian Penal Code posits this legal figure in the first paragraph of art. 56, with the following formula: "Whoever performs acts suitable, and unequivocally directed, to commit a crime, is liable for attempted crime, if the action is not completed or the event does not occur."

This provision has extensive effect, inasmuch as it extends the prohibition of the facts described in the various incriminating norms to cases in which the agent does not fully realize them, but is interrupted in the completion of the criminal iter. The aforesaid norm therefore creates, new obligations, rendering punishable actions that otherwise would not be criminally relevant: if it did not exist, one who tries to commit a crime and does not succeed would not be punishable, since the principle of strict legality enshrined in art. 1 of the Code would stand in the way.

While from the subjective point of view, that is, in the sphere of the will, the attempt (conatus) does not differ from the consummated intentional crime, because in it too there exists the intention to carry out the act forbidden by law, in the objective sphere it presents itself as incomplete, because the criminal hypothesis described by the legislator in a given incriminating norm is realized only in part. The incompleteness of the typical act can take two forms. In the first, the activity that was directed at committing the crime is not brought to completion, as in the case of the thief who, caught while picking a lock, takes flight. In the second, the agent has indeed carried out the executive conduct, but the event required for the existence of the crime does not occur: one may think of the person who fires a rifle shot at someone that misses. It is to these two forms, which take the names, respectively, of incomplete attempt and complete attempt, that the Code refers with the expression "if the action is not completed or the event does not occur". From the legislative formula in art. 56 it is deduced that, besides the intention to commit a crime and the incompleteness of the situation outlined by the incriminating norm, two requirements are needed for the existence of the attempt: a) that the acts be directed in an unequivocal manner at committing a crime, that is, the unequivocality of the acts; b) that such acts be suitable for the purpose, that is, the suitability of the acts.

For a long time criminalists have posed the question whether preliminary acts, as a rule carried out by the offender when he begins to implement his criminal plan, must — in the hypothesis that they have no further development — be punished, and in general they have answered in the negative. And indeed, not only do such acts have a very uncertain meaning (and, since the energy of the will does not yet manifest itself in them in a decisive manner, the probabilities of abandoning the criminal design are very high), but it must also be recognized that the punishment of these first acts can lead to excesses of repression on the basis of mere suspicions. Thus arose the distinction between preparatory acts and executive acts, a distinction that has great value for the protection of the rights of the individual, and that was enshrined in most of the codes issued in Europe after the French Revolution, including the Napoleonic Code, which required a commencement d'exécution for punishability. However, the efforts made in doctrine to trace, starting from this generic requirement, a criterion for distinguishing preparatory acts (exempt from punishment) from executive acts (punishable), cannot be considered successful, so much so that the German jurist Geyer, judging the problem insoluble, compared it to the squaring of the circle. In view of the difficulties determined by the distinction in question, the compilers of the current Italian Penal Code modified the formula that appeared in the Zanardelli Code, limiting themselves to requiring, besides suitability, the unequivocality of the acts. This solution, however, could not erase the distinction between preparatory acts and executive acts, which, even before appearing in the normative situation, is found in the reality of things: indeed, on closer inspection, the Italian legislator has done nothing other than give the sanction of positive law to the classical criterion, also accepted by Carrara, for identifying executive acts. Along this path, it is clear that the problem of the meaning to be attributed to the requirement of unequivocality takes on central importance. In this regard it should be noted that if it is true that the act is unequivocal when, for what it is and for the manner in which it is carried out, it excludes every doubt as to the fact that the author has set about committing a determined crime, it must necessarily be held that the direction of the act is to be inferred, besides from the act itself, also from that complex of elements that accompany or precede its realization (thus the confession of the offender, circumstances of time and place, etc.).

As for the requirement of the suitability of the acts directed at committing the crime, it must be borne in mind that, by the law of natural causality, every action that has not determined a certain result reveals itself, in the concrete case, to be insufficient to produce it, and therefore, strictly speaking, unsuitable. From this it must be deduced that the suitability or otherwise of the conduct cannot be judged ex post, that is, by the standard of all the circumstances really existing in the individual case, but must instead be judged ex ante, referring back to the moment in which the action was carried out and formulating the judgment on the basis of the circumstances that could be known at that moment. The action will therefore be suitable when, on an analysis thus conducted, it presents itself as adequate with respect to the result at which it was directed; it will be unsuitable in the other cases. But since, once ascertained ex ante, suitability is equivalent to adequacy with respect to a result forbidden by law, the consequence is that suitability of the action means nothing other than its dangerousness. The attempt, therefore, is punishable when it takes concrete form in a dangerous action, that is, every time that, at the moment in which it was undertaken, the conduct of the subject presented probabilities of success.

Unlike other legislations that prescribe for the attempt the same penalty as for the consummated crime or that leave the judge the faculty of applying the same penalty or a reduced penalty, the Italian legal order punishes the attempted crime less than the consummated crime. The second paragraph of art. 56, in fact, establishes that for the attempt there is applied imprisonment of not less than twelve years if the penalty established is life imprisonment, while in the remaining cases the penalty fixed for the crime is reduced from one third to two thirds. If, moreover, during the execution of the crime, and before it is consummated, the offender withdraws from his criminal purpose, voluntarily interrupting the action, impunity is established, provided that the acts carried out do not in themselves constitute a different crime (III paragraph, art. 56). If, on the other hand, the guilty party, having completed the executive activity, desiring, because of reflections or supervening facts, to avoid the occurrence of the event, succeeds in preventing it, the penalty established for the attempted crime is reduced from one third to one half (IV paragraph, art. 56).

As regards canon law, the CIC, in can. 2212 § 1, establishes that there is attempt when someone has carried out acts qui ad executionem delicti natura sua conducunt, but the crime is not committed either because of abandonment of the criminal design or because of the ineptitude of the means employed. To this, which is the conatus in the strict sense, the same canon, in § 2, contrasts the delictum frustratum, which occurs when, in the presence of unequivocal and suitable acts, a cause other than the will of the agent prevents the completion of the crime (complete attempt). The action of one who solicits others, without succeeding, to commit a crime is assimilated to the attempt (can. 2212 § 3).

Can. 2213 establishes that the attempt must be punished, except in the case that the agent has spontaneously desisted from the execution of the crime and no damage or scandal has derived from the attempt. If a particular penalty is provided for a determined attempt, it is to be considered as a true and proper crime (can. 2212 § 4).

Marcello Gallo