C.134 - Hitmen case

I. In the facts presented, the following stand out data: a) a person wants to cause injuries to another person, but does not want to directly execute those injuries; b) he contacts two hired assassins to whom he offers to execute them in exchange for money; c) they accept, but with the sole intention of deceiving the person who was looking for them.

II. We are asked about the criminal responsibility of Alaric, Chindasvinto and Recesvinto. On the basis of these facts, and focusing on the possible responsibility for the preparatory acts of crimes, the following can be argued about their criminal responsibility.

II.1. There is no objection to the respective human conduct of the three.
II.2 . As regards objective criminality, a distinction must be made. Firstly, Alaric's decision is not criminal as long as it remains within the realm of his wishes or even as long as it is expressed without taking the concrete form of proposalor proposition. This is what can happen in phase a): the conduct does not yet acquire criminal relevance. The situation is different in phase b), in which Alaric not only externalises his desire, but also proposes to two hitmen of the crime that they carry out the injuries themselves. With regard to phase c), the two hired assassins collect part of the price and dispense with injuring Sigismund; moreover, from the beginning of the proposals and acceptance, they seek to deceive Alaric, without thinking at all about injuring Sigismund. The peculiarity of these facts raises the question of whether or not the alleged pact constitutes a punishable preparatory act; and, if not, what is Alaric's responsibility for his search for hired assassins.
Leaving aside phase a), in phase b) there is an alleged pact between Alaric, Chindasvinto and Recesvinto. In effect, the three of them agree to cause injury to another person; and two of them would execute the deeds and thus collect a sum of money, paid by the one who proposes the execution. If we focus on the crime of basic injuries (art. 147), since we are not told much more about these future injuries, we can say that Alaric's speechto the hired assassins does not yet fall within the scope of executive acts, but at most within that of preparatory acts. In fact, in order to enter at least the attempt stage of a crime, it is necessary to directly initiate the execution by means of external acts (art. 16.1), which is not the case here. For the stage prior to the attempt, the legislator has provided for the so-called punishable preparatory acts: conspiracy, proposition and provocation (Articles 17 and 18). These acts are presented in the internshipas attempts to participate in the offence (anticipated co-perpetration, for conspiracy; also for conspiracy, attempted provocation...). In terms of goal, a conspiracy requires that two or more persons conspire for the execution of a crime and resolve to carry it out. And Chindasvinto and Recesvinto are not conspirators, because they do not agree to carry out the crime, but deceive Alaric about their purposeintention to commit it: if they deceive, there is no pact. The conduct of these two also does not fulfil the goalaspect of the proposition or provocation; to be convinced of this, it is enough to read what the penal code requires for these figures (arts. 17.2 and 18.1). Their conduct is goalatypical in this respect.

It is interesting to know part of the legal grounds of the SAP Almería, 4 September 1998: "As we will see, this nuance becomes essential in cases such as the present one since, assuming as a proven fact that the convicted persons were not going to participate materially and personally in the execution of the crime, their conduct cannot be punished as a proposition and neither does it fit in the new definition of provocation (which is what the Supreme Court used to do) because in the current art. 18 CP, all incitement that is not by means that facilitate or in the presence of a concurrence of persons, a circumstance that does not exist in this case, has been omitted". 18 of the current Penal Code omits reference letterfor any incitement that is not by means that facilitate advertisingor in the presence of a concurrence of persons, a circumstance that does not exist in this case".

Alaric has not resolved to commit the crime (and therefore does not carry out an act of proposition), but wants others to commit it: his conduct would not constitute conspiracy, but rather inducement (art. 28), insofar as he acts on the freedom of decision of another person so that this person resolves to commit a crime. Incitement, as a form of participation, depends on an offence, the act of the perpetrator (accessory participation). In this case, the crime in question (the injuries) is not even initiated, so it must be acknowledged that the inducement is unsuccessful, even though Alaric continues to believe that the hired assassins will injure Sigismund. It would be a "failed" inducement. The idea of the limited accessory nature of subjectof participation has a qualitative aspect (that the perpetrator's act must at least be typically unlawful for a third party to be able to participate in his act) and a quantitative aspect (that the perpetrator's typically unlawful act must at least begin with the attempt for a third party to be able to participate in his act). According to this, there is no basis on which Alaric can take part as an instigator, because a typically unlawful act has not been initiated by the two assassins.
Moreover, the alleged pact that the two hired assassins make him believe to be firm puts him in the belief that the crime of injury is going to be carried out and that he himself is an instigator, when the truth is that he is being deceived. The statusis typical of an attempt structure (reverse error: what is not actually believed to exist is believed to exist). We are therefore faced, at most, with an attempt to induce, which goes unpunished. The impunity of imperfect forms of participation does not have to do with a structural issue (i.e., they are conceivable situations, which can occur in reality, and which would have to be resolved by a combination of attempt and participation). The reason for impunity derives from criminal policy reasons. Specifically: the (Spanish) legislator's decision to punish preparatory acts is limited to certain cases (conspiracy, proposition and provocation) and only for the most serious crimes (cf. Articles 17.3 and 18.2). This is because it seems excessive to criminalise conduct in general when a direct attack on legal assets has not yet begun. This is an exceptional provision, which restricts freedom of action and which, for this very reason, does not allow for any extensive interpretation or analogy. Apart from this decision, there is another one which responds to the same reason: the punishment of attempt, which is also exceptional but for the generality of offences (Art. 15). These are two decisions that extend the criminality of the conducts provided for in the code (the doctrine refers to these as causes for extending the criminality or punishment). For this reason, it is understood that such an extension cannot be followed by a successive extension. Consequently, the combination of attempt and preparatory acts (or participation) cannot be punished, even if it is conceivable and, moreover, real, as in the case in question. At final, Alaric's conduct must go unpunished, because it is a double extension of the offence.

III. In conclusion, the conduct of Alaric, Chindasvinto and Recesvinto must go unpunished due to the lack of the objective nature of punishable preparatory acts.

Cf. C.41.