LESSONS
L.13 - Participation
STRUCTURE
I. The concept of participation.
1. Intervention in the act and participation.
2. Accessory nature of participation.
II. Forms of participation.
1. Inducement.
2. Necessary cooperation and complicity.
III. Dependent types.
1. Punishable preparatory acts".
2. Subsequent offences".
Who was it (II)?
As has already been stated, the problem of authorship and participation begins when more than one active subject is involved in an act. Thus, we have seen how the plurality of participants is resolved with a plurality of responsible subjects at degree scroll of co-perpetration in C.121, and in C.122 with a single manager which does not coincide with the perpetrator (perpetration-by-means). In C.123, the plurality of participants does not lead to joint responsibility (co-perpetration), nor to responsibility for instrumentalisation (perpetration-by-means), but each one is responsible separately for what he or she does.
These three groups of cases do not exhaust all possibilities of plurality of participants. In other cases of multiple perpetrators, not all of them have to be perpetrators. It is possible to imagine cases of partnership of another entity (facilitating the vehicle to go to the crime scene), providing information (the keys to the safe), support (giving courage or encouragement to the criminal), among others. What is essential then is not the lesser entity, but the secondary nature: in other words, that there is someone who maintains control of the act, who will be the perpetrator, while the person who financial aid does not have this control. But it may well happen that the person who does not have control makes a very relevant contribution. Consider the case where someone persuades another person to commit a crime. Precisely because he has made the decision to commit a crime arise in another person (through the payment of money, or by fomenting hatred against a specific person, for example), his contribution is not irrelevant, but rather the core topic to understand the subsequent events; but the perpetrator is still the one who controls the act; and the person who convinces him cannot be the perpetrator since he does not control, even if his intervention is very relevant. A different case is the one in which the person who influences another does not devote himself to convincing the possible perpetrator, but rather instrumentalises him (by means of deception): we have already dealt with these cases(C.122) and it is advisable to keep them separate and know how to distinguish them (perpetration-by-means). In C.131 it is necessary to pay attention to Gabriela's peculiar contribution, and to know how to differentiate this case from C .122.
"In the history of Criminal Law the forms of participation in crime have not always been the same as those we know today. In the past, the subsequent ratification (ratihabitio) of the crime committed by another was punished as participation in the crime, since it served a very effective function in the internship when it was difficult to prove the existence of the mandatum (SCHAFFSTEIN, Die allgemeinen Lehren, p. 187), and when at the same time, because of its seriousness, the acts could not go unpunished. This was enshrined in the ancient rule, nowadays inoperative, of course: in maleficiis ratihabitio mandatur æquiparatur.
C.135 - Galanes case
"José Vicente Ch.N., ... and Francisco M.L., ..., at around 9.30 a.m. on 18 September 1996, in the company of a third unidentified individual, were driving the Renault-Clio B-...-NU vehicle agreement , from which Francisco M. L. and the other unidentified individual got out. and the other unidentified individual, then drove to the branch of the Caixa de Tarragona located in C/ Galanes núm.... de Reus, inside which they rushed inside, at the same time partially covering their faces with handkerchiefs, one of them then handed a customer, Ramón A. B., an object, whose characters are unknown, on his back while saying: "this is a robbery" "we have AIDS", "leave us the money"; in view of this status and because of the fear that the cashier had for the physical integrity of the customer, he made them submission of 69.785 ptas. Meanwhile, José Vicente C. was waiting behind the wheel of the vehicle with the engine running, in the blue zone of Pressó street, very close to the place of the facts, ready to flee".
(STS 26 October 1999; pte. Puerta Luis; RJ 1999, 8136).
AA.13
Traditionally, the common law has distinguished three forms of participation in the crime carried out by the principal in the first degree or perpetrator: i) principal in the second degree; ii) accessory before the fact; and iii) accessory after the fact. However, this classification only applies to felonies and is rather confusing. Different is the theory of Accomplice liability, introduced by the Model Penal Code (§ 2.06).
Criminal law defines an accomplice as a person who financial aid, advises or procures the commission of a crime. This is a broader concept of an accomplice than in continental law. Accomplices are responsible for the crime in the same way as a perpetrator. Complicity can also occur in crimes at Degree of attempt. A distinction must be made between complicity and conspiracy.
Inducers are included in the group of accomplices, while one of the typical verbs used to define the conduct of accomplices is "abet", which describes the activity of a person who incites, instigates or encourages the perpetrator to commit a crime ("aid, abet, counsel, assist and procure").
The fundamental problem with Accomplice Liability or participation theory is the question of what mental state accomplices must have. Some cases require that they have the same mens rea as the principal or perpetrator and other cases require that their mens rea consists of an intention to assist. The latter is the majority position.
On the various actions that constitute complicity: United States v. Whitney, (229 F. 3d 1296 10th Cir.) 2000. On the mental state of the accomplice: State v. Cronin (142 Wash. 2d 568, 14 P. 3d 752) 2000. On the difference between complicity and conspiracy: Pinkerton v. United States (328 U.S. 640, 66 S.Ct. 1180, 90 L. Ed. 1489) 1946.
VOCABULARY
- Accessory
- Accomplice
- Abet
- Complicity
- Conspiracy
To get started: Jescheck/Weigend, Treatise, §§ 64-65; spanish medical residency program Puig, Criminal Law, Lesson 15.
Monographic: Peñaranda Ramos, La participación en el delito y el principio de accesoriedad, Madrid, 1990; Robles Planas, La participación en el delito: Fundamento y límites, Madrid, Barcelona, 2003.
N.131 Concept of participation.
N.132 Forms of Participation: Inducement and Cooperation.
N.133 Dependent types: Punishable preparatory acts".
N.134 Dependent offences: Types of post-executive intervention.
SYNOPSIS
