Criminal Involvement and Participation in Criminal Law

Posted on Oct 13, 2024 in Law & Jurisprudence

Criminal Involvement

Criminal involvement studies subjects punishable by the execution of a crime. Article 14 distinguishes between authors, accomplices, and accessories. Doctrine also adds the inductor and the instigator.

The Active Subject

The active subject carries out the criminal conduct of an offense. When a single person commits the crime, they are the author and subject to penalties prescribed by law (Art. 50). However, crimes frequently involve multiple people. This criminal involvement, characterized by multiple actors, can be necessary or possible, depending on whether the crime is a group or individual effort.

Necessary Involvement

Necessary involvement occurs when the offense, by definition, requires two or more people for its commission, regardless of whether all participants deserve punishment. Examples include:

  1. Bilateral offenses such as bereavement or sodomy.
  2. Multilateral offenses such as conspiracy or rebellion.

In these cases, the criminality of individuals is determined as provided in the respective offense. All participants are considered authors under the categories established by law and are punishable as outlined in the special part of the legal code.

Possible Involvement

Possible involvement occurs when the offense can be committed by one or more persons. There is no typical requirement for multiple actors, but it happens in practice. Most crimes are individual, involving personal authorship. Applying the principle of legality, conduct would only be punishable if the subject executes the offense themselves. However, the Criminal Code establishes rules in its general part that also criminalize those who do not perform the typical behavior but perform actions linked to the typical behavior performed by the perpetrator.

In all situations, authorship is essential. There can be no criminal involvement without one or more perpetrators. Accessory involvement includes accomplices, abettors, instigators, and accessories in the strict sense.

Principles of Criminal Participation

These principles regulate relations between different subjects involved in a crime.

1. Principle of Exteriority

This principle addresses how much of the iter criminis (stages of a crime) must be met by the lead author for other participants to be punishable. Criminal punishment begins with the attempt. Thus, the behavior of other subjects is only punishable if the author has at least begun executing the crime. This aligns with Sections 15 to 17 of the legal code, which address the execution of the deed. This principle is generally undisputed.

2. Principle of Convergence

This principle determines the level of agreement required between subjects for criminal participation. Doctrinal consensus requires a common fact for different subjects, both objectively and subjectively.

  • Objectively: A link must exist between each participant and a single fact, the same in which other actors take part.
  • Subjectively: All subjects must be aware of their participation, implying a “common intent.” According to this principle, criminal participation requires the willingness of various subjects geared towards completing the criminal act.

Consequences of the Principle of Convergence

  1. No criminal involvement can exist in unintentional crimes.
  2. No culpable involvement exists in the actions of a third party.
  3. Excessive malice by one participant does not affect other partners.
  4. The same applies to the diversion of malice (e.g., if the agreement is to injure, but one participant misses and kills, only the common criminal damage applies).
  5. Doctrine suggests that any fraud suffices, primarily in cases of deviation or excessive malice.

3. Principle of Accessory

This principle determines which elements of the crime the author must meet for other participants to be punishable. The question is whether the executor’s action needs to be a perfect crime or if meeting some elements suffices. Different types of accessory nature exist:

  • Minimum incidental nature: The author’s behavior must be typical.
  • Appreciation incidental nature: The author’s conduct must be typical and unlawful.
  • Hiperaccesoriedad: Objective conditions of criminality must be met, and no lawful excuse or acquittal exists.

In our legal system, minimum and hiperaccesoriedad are discarded. The prevailing doctrine favors average incidental nature, requiring typical and unlawful conduct. Articles 15, 16, 72, and 456 bis 5 of the Criminal Code support this, referring to “fact” rather than “crime” to discuss blame and complicity. Article 72 clarifies that if children and adults are involved, the adults are not exempt from punishment; using a minor constitutes an aggravating factor.

4. Principle of Communicability (Personal Qualities)

This principle determines whether personal qualities that constitute the criminal offense are communicated to other participants who lack those qualities. Article 64 of the Criminal Code addresses the communicability of aggravating and mitigating circumstances, which are not communicated. Different views exist on the communicability of personal qualities:

  • Novoa’s view (minority): Personal qualities of the type are communicated.
  • Etcheberry’s view: Distinguishes between personal qualities at the core of the offense (communicated) and those at the periphery (not communicated).
  • Cury’s view (non-communication): Supported by the doctrine that each participant should be punished according to their incurred injustice and the text of Article 64.

Authorship and Participation in the Strict Sense

Participants are classified as:

  1. Inductors (Article 15 No. 2, Part II)
  2. Accomplices (Article 16)
  3. Abettors (Article 17)

Authorship

The law doesn’t define “author” (Article 15 uses “are considered authors”). Various theories attempt to define authorship, including restrictive objective and subjective theories and overly broad theories, both of which are unhelpful. The most accepted theory is the domain theory of the act.

Subjective Theory

This theory defines the author as anyone who sets a condition to cause the typical result. This concept is too broad, encompassing behaviors like complicity or induction. Authorship becomes a residual concept defined by exclusion.

Objective Theory

This theory (Beling’s formal objective theory) defines the author as the one who performs all or part of the core of the offense. This definition is inadequate for certain cases, such as the leader of a gang or indirect perpetrator.

Objective-Subjective Theory (Domain of the Act)

This theory defines the author as the one who has the final domain of the act, both objectively and subjectively. The author holds the reins of behavior and can decide on the consummation of the typical fact. This notion allows for distinguishing categories of authorship.

Classification of Authors

1. Direct, Material, or Executor Author

This is the most natural form of authorship; the individual materially performs all or part of the conduct described by the offense. There is a presumption that the executor has control of the act, even if only partially.

2. Indirect Perpetrator

This individual uses a third party as an instrument to execute the typical behavior. The indirect perpetrator uses or abuses the third party’s capacity for self-determination or takes advantage of their inability. While the third party materially performs the offense, they lack real domain over the behavior. This is sometimes referred to as the “author behind the author.”