Publications

Prof. Christos Mylonopoulos, University of Athens

Consider the following example:

Two friends, A and B, decide in common to steal a motorcycle. According to their plan, one of them (A) will cut off the anti-theft chain and the other (B) will start the engine. As A is trying to cut the chain and B is waiting to do his own part, both get arrested by the police. Can the second participant be charged with attempted theft as co-principal, even though he objectively did nothing constituting a “beginning of perpetration”?

I. The efforts to find an appropriate solution

The question of how one could conceive the beginning of perpetration of a crime arises when more than one person agree to and plan an offence together, but only one of them actually begins to perpetrate the offence.

According to the so-called “comprehensive solution” (Gesamtlösung), the starting point of one principal is the starting point of all other perpetrators who agreed to commit the offence, since, according to the principles of complicity, the conduct of each co-principal is attributed to the behavior of all the others, as if each one of them had committed it himself. This opinion is based on the following argument: since in the case of an accomplished offence the conduct of each one co-principal is attributed to all the others, the same must also apply in the case of the attempted offence, on the condition that the beginning of the actus reus was the content of the common intent.

It is obvious that in such cases the conduct of the acting co-principal must be the beginning of the whole offence and not just a mere preparatory act, which would presuppose a new criminal decision by the other participant. Thus, according to this point of view, an attempt by joint principals (“in Mittäterschaft”) is committed if one offender lays a bomb under the car of the victim, while the other waits, in the next few moments, to detonate it. However there is no attempt in joint action if the second offender has agreed to act some days after the first one.

According to the so called distinguishing solution (“Einzellösung”), the conduct of everyone who took the decision to commit the offence together with the others has to be evaluated separately and independently of the legal assessment of the acts of the others. Each participant can be punished as co-principal of the attempt only if he committed an independent act, and not if he remained inactive while waiting to execute his own part of the offence. Hence the conduct of the person who was present at the place of the offence, but remained inactive while the other person (the principal) began the perpetration, cannot be deemed to be a co-principal of this attempt, but his conduct can be at the very most “moral complicity” (abetting-psychische Beihilfe), in the sense that he encouraged the principal with his presence during the attempted perpetration of the offence.

A third, intermediate solution (in reality an amelioration of the comprehensive solution) was proposed by the Supreme Court of Germany (Reichsgericht). According to an important decision, the suppression of each participant does not presuppose an independent act of attempt, since it is sufficient that the conduct of the participant who remained inactive can be clearly distinguished from the conduct of any third party who does not participate in thedeed, as long as the first offender (that is, the principal) commits his own (undisputable) act. In the case judged by the Court, a woman (A), waited “inactively” next to her husband (B) while the latter was trying to break into the home of the victims by cracking the door .A, who had worked in that house as housemaid, would show him the place where the money was hidden. She was deemed to have committed attempted burglary as co-principal on the basis of the above-mentioned line of reasoning.

This third point of view can be supported by further fruitful arguments: The statement that the conduct of the participant examined here differs clearly from the conduct of a completely uninvolved third partyrests on the previous logical estimation that the husband (B) of our example definitely would not have begun the attempt to break in if his wife, (A) had not been there. Therefore, the husband’s beginning of perpetration took place in the expectation and on the condition that the wife would do her part, too. Consequently, the husband’s conduct can be considered a result of the whole plan, but also as a result of the wife’s presence at the scene of the crime, since the latter had already expressed readiness, to carry out her own part of perpetration as soon as the time would come.

Furthermore, we must not neglect the fact that the participant’s conduct under discussion, which would constitute a preparatory act if it were considered in isolation, cannot be evaluated as such, as far as a joint decision (common intent) and an assignment of roles is given. The reason being that, in this case, the contribution of each person who was party to the decision is not independent. On the contrary, the decision is realized only if related with the contribution of the other participant. The attempt of the first participant is at once the result of the conduct of the other. So, the question is: can the latter’s conduct be, on this ground, qualified as attempt? One thing is certain: this conduct cannot be a mere preparatory act, since it is a condition for the beginning of perpetration which has already taken place and insofar participates in it.

It is worth mentioning that the German federal Supreme Court (BGH) found a joined co-authorship not only in the case where the participant who joined the common decision awaits, inactive, but also in cases of withdrawal, where he omits his own contribution which was agreed to in advance, even when the other participant has already begun his own part of perpetration.

This was illustrated in one case before German Federal Supreme Court (BGH St 37, 28): Two fugitives, A and B, agreed to shoot, if necessary, the policemen running after them. Nevertheless, when stopped by the police, one of them (A) raised his hands to show that he was not intending to offer any resistance against them, while the other (B) shot two policemen on the spot, in accordance with their previous common decision. In this case, according to the Court, the acts of the two perpetrators are so narrowly connected, that B’s conduct can be considered as part of A’s conduct, since it was totally adapted to the common decision.

II. The provisions of attempted and joint perpetration as rules extending criminal liability

In the framework of the so-called “narrow participation system”, in which complicity has an accessorial character, the combination of the rules concerning attempt and complicity are of crucial importance. Thus, the provisions on attempt widen the range of criminal liability, in the sense that whoever expresses the intention to harm a legal interest can be punished if the conditions of the attempt are fulfilled (e.g. art. 42 of the Greek PC, para. 22 of the German PC). On the other hand, provisions on complicity also widen the range of punishability, since they permit the punishment of the offender for an act perpetrated not by him but by another person, provided that the conditions on co-authorship are fulfilled (e.g. art. 45 of the Greek Penal Code, para. 25 of the German P.C.). Thus, on the basis of these provisions, a person can be punished as co-principal even if he committed just a part of the whole offence. The partial act perpetrated by the other participant is attributed to him, since they acted according to the assignment of their roles based on the common plan. Consequently, the combination of the rules concerning attempt and co-authorship allows for the conclusion that a person attempting to commit a crime can be liable not only for what he did himself, but also for what other co-principals did, provided that they all acted on the ground of a common decision taken before the act.

III. Co-authorship as a single act of a plural subject

A corroboration of the above point of view is provided by analytical philosophy, especially in the works of Gilbert and Tuomela, who underline the importance of so-called “joint actions”. In this case, the act is deemed to be carried out by one “plural subject” (that is, a multi-personal actor) constituted by all persons acting in common. According to this theory, more than one person shares in the same act on the condition that everybody has expressed the will to establish a plural subject in common with all others so that they become, all together, parts of such a (plural) subject, that is, of one subject. Further, all these partial subjects must have expressed their own readiness (the so called quasi-readiness) to participate in the common act. Therefore, in such cases each partial actor acts as part of a plural subject. Consequently, if one of the partial subjects accomplishes his intention, it has been accomplished by all of them.
The contribution of the analytical philosophy on this issue is illuminating, since it allows us to see that an act which would be a mere preparatory act if considered in isolation, is transformed into an act of perpetration if considered as part of a common act. So it explains, in other words, why a prima facie neutral deed receives another meaning when considered as part of a common act. The partial act of each partial subject is attributed to all the others on the grounds of joint agreement.

It is therefore evident that whoever, on the basis of a common plan, waits, “inactive”, at the location of the offence until his accomplice carries out his own part of “job”, in reality is not at all “inactive”. Let us take, for example, the case of a person who, according to the common decision, is waiting (“inactive”), hidden in the shadows, until his companion overwhelms the victim, in order to subsequently abstract his money. Could we saythat he acts already as co-principal of attempted robbery? The answer has to be affirmative. Because his conduct, that is, presence at the place of the offence, and readiness to abstract the victim’s money as soon as his resistance is broken, contributes to the attempt of the first principal in such a way that the attempt of the first principal can also be conceived as a result of his own act. Therefore, between the presence of the second participant and the attempt of the first one, a link of causation is established.

IV. The main argument: Conceptual dependence of the principal’s decision on co-authorship

We can now understand the intrinsic weakness of the “distinguishing solution”. The main argument against it derives exactly from the very nature of the concept of the attempt, and it is in fact quiet simple: It is, namely, undisputable, that whoever, based on a common decision, begins the perpetration of an offence, commits in any case an attempt at the respective offence which has been decided in common. However, his punishment is possible only on the basis of the comprehensive solution and not on the basis of the “distinguishing solution”. In fact, the discussion on our issue takes the criminal liability of the first offender, who already started the perpetration, as quasi-self-evident. That is why the discussion focuses on the conduct of the second participant and tries to find out whether it constitutes an attempt, too, or not (perhaps just a moral aiding and abetting). Could we say, though, that this is the starting point? Can the conduct of the first participant be qualified as an attempt, independently of the conduct of the second participant? In other words: Could we assume that the act of the first person would be an attempt had he acted alone, that is, without the common plan and without the common decision?

Let us take, for example, our initial case, the one referring to the attempted theft of the motorcycle. Can we argue that A, who started the efforts to cut the anti-theft chain committed in any case an attempted theft, even if he had acted alone, without the expectation of the other to contribute?

Despite the apparent peculiarity, the answer must be negative. Because, as we know, an attempt is only established when the perpetrator decides to commit the whole offence and not just a part of it. The criminal intent must cover entirely the actus reus and not just the objective part carried out by the actor. In the cases under discussion, however, criminal liability for an attempted offence by the first participant cannot be established if we adopt the distinguishing theory for the second participant, because in our cases the acting participant has no intention per se to commit the entire offence. His intention covers only one part of the offence, that of cutting the chain or cracking the door of the victims’ house. His intention does not extend to the part of the plan to be carried out by the accomplice. On the contrary, he wants the other part of the offence to be committed not by him, but by the other participant, namely by the inactive person waiting in readiness to act. It is therefore obvious that the distinguishing approach amounts to an absurdum: It implies that the first actor can be punished for an attempt crime even though he doesn’t have the intent as required by law, that is, the intent covering the entire actus reus, since, according to the common plan, a part of the whole actus reus has to be accomplished not by him but by another person, the “inactive” participant. Consequently, if we were willing to apply the pragmatic criterion, according to which a person is a co-principal if his conduct could be qualified at least as attempt, had he acted alone, we see that with regard to the first actor this criterion is not satisfied on the basis of the distinguishing solution. The ground is now clear: since we assess the case on the basis of a distinguishing, and therefore isolating, consideration, the participant who started the perpetration of the offence has no intention with regard to the entire offence, since, according to his own intention and to the common decision, a part of the offence has to be executed by another. In other words: the consistent application of the distinguishing solution, which isolates the conduct of each participant, leads inevitably to the absurdum of acquittal of the first actor, too, since his own intent does not match the complete intent required by law for the entire actus reus of the offence.
If we take, for instance, our robbery case, we see clearly, that A, the first participant, who exercises the unlawful violence, has no complete intention to commit the whole crime, since he has no intention to take the money from the victim. His conduct can be qualified as attempt only over the conduct of the other participant (B), i.e. only if we take into account that he (A) acted in the expectation that B would perform his own part. On the contrary, if we isolate his act, attempted robbery cannot be ascribed to him, but only unlawful violence at most.

Moreover, the distinguishing solution amounts also to a further absurdum: Since the first offender commits no offence for lack of complete intention, no main act is given, too. Because of this, the conduct of the second participant can be qualified not even as moral assistance (abetting).

From the above thoughts we can therefore come to the following interim conclusions: The isolating view of the distinguishing solution has to be abandoned. The act of one participant, who, in common with another, decides to commit an offence, receives its complete social meaning and qualification as violation of a certain legal interest only in connection with the other’s conduct and in particular with the other’s intention. The conduct of the second participant is therefore decisive for the evaluation of the whole act in many aspects: Not only does his presence and readiness to act establish causation of the partial act of the first offender, but also he influences the first offender in a very crucial point, namely that his intention establishes the criminal intention of the first offender. It is exactly the second participant who upgrades the first one as principal of the attempt, since (and in the measure that) his intention is being attributed to the first one. This “transfusion of intention”, however, is possible only on the ground of a comprehensive theory and not on the basis of an isolating solution.

V. The conduct of the “inactive” participant as an offence committed by omission

Furthermore, we cannot overlook the following issue: Since the attempt of the first participant can also be qualified as the result the presence of the second one, the latter has the legal duty to impede the act of the first offender. His presence and readiness and particularly the agreement with the first actor create a danger for the respective legal interest which is not irrelevant for the legal order. The contention, therefore, that the conduct of the second participant has the character of a crime by omission, is not unfounded.

Against this contention an objection is raised, that in this way any person aiding the principal before the time of the offence (before the “main act”) would be transformed into a principal himself, since he has legal obligation to prevent the criminal result, i.e. the offence. This could only be avoided, if the second participant is qualified as a moral aider who merely encourages the offender. This argument is nevertheless not persuading, since, as we have seen, the conduct of the second participant is something more than a mere aid: it is the element that creates the possibility of the first actor to be qualified as principal at all.

A further objection, against the possibility of qualifying the second participant as co-principal, is based on the so-called principle of self-responsibility (“Prinzip der Eigenverantwortlichkeit”), according to which each one is liable for the unsought results of his own conduct and not of other people’s conducts. Even if the anterior dangerous conduct of the second participant establishes the legal obligation to prevent the harmful result (=the main act), this does not lead to the conclusion, that this obligation is established also in case that this anterior conduct consists in a moral aid, i.e. in the promise to be present at the place of the offence, at the moment of its beginning. In other words: The aider has no moral obligation to prevent offences committed by third parties.

However, this objection is also grounded on a petitio principii, because its starting point consists in the contention that the attempt of the principal is another person’s conduct and that the act of the second participant is a mere moral aid. But this is precisely what we are looking for. Moreover, this point of view overlooks the fact, that the act of the first principal is an attempt precisely because, according to the common decision, a part of the offence has to be committed by the second participant. So, how could the latter be qualified as aider? We come therefore to the conclusion, that on the basis of the principles ruling co-authorship, the conduct of the inactive participant fulfills all the conditions of perpetration by omission (so called non-genuine offence committed by omission) and is equivalent to perpetration by positive action. The conduct of the second participant has therefore authorship quality because of this reason too.

VI. Liability based on omission and abandonment of the attempt

The liability based on the omission of the inactive participant is further considered to be inconsistent with the provisions concerning the abandonment of the attempt. The argument is the following: If we accept the inactive participant to be the co-principal and perpetrator by omission, we punish him because he did not exercise his right to abandon the incomplete attempt and remain unpunished, a right which is active and can be used until he does all the acts intended to bring the offence about.

VII. Value contradictions of the comprehensive solution?

It is true that against the comprehensive solution an objection is raised, namely that this theory implies some value contradictions. Nevertheless, their common characteristic is that these evoke examples entailing the application of the comprehensive solution in its extreme form, namely without regard to any participation of the second offender. If, on the contrary, we apply an intermediate comprehensive solution, presupposing presence of the second offender and readiness to act and causality between these acts and the attempt, the objection of value contradiction lacks any logical ground.

So, let us consider one example, offered by Valdagua: two participants decide to rob a bank. One of them threatens the cashier, whilst the other, according to the common plan, will enter the building only when the resistance of the victim is surmounted. In this case the contradiction would be the following: If the second participant fails to enter the building, because, e.g., of the traffic in the street, his punishment as co-principal of the attempt would be entirely unjustified. The reservations against this punishment are totally comprehensible, but also the answer to the objection is simple: Precisely what is missing here, is the very condition of the attempt committed by co-principals is precisely missing, i.e. the fact, that the activity of the second actor must be clearly distinguished from the conduct of any other, not participating, third party. Consequently, if we apply in this case the intermediate form of the comprehensive solution, the second participant could not be liable as co-principal of the attempt. In other words, no value contradiction can be observed here.

The same applies with regard to another example by the above writer: The two accomplishes agree to commit a theft in common, in the following way: the first one will crack the safe, while the other will come after a telephone call, just to pick up the money. In this case, it is said, if the second participant does not appear, the comprehensive solution fails. But also this example does not provide a sustainable value contradiction (and consequently a reason to reject the comprehensive solution). The reason being that here there is also no presence of the alleged participant at the place of the offense, nor readiness to act, nor is the act of the first one the result of the second’s activity. Moreover, we must not forget, that the decision of the first participant, is merely based on the hope, that the other would come, and constitutes in fact not a real decision against the legal interest to be harmed. His intention with regard to the entire actus reus of the theft depends here from two further conditions: from his decision, to call the second, and from the decision of the second, to act according to the telephone call.

In this context a decision of the German Federal Supreme Court should also be mentioned. The facts were the following: One of three thieves, who had decided in common to use their weapons, if necessary, shot against a person, in the erroneous belief, that he was one of the policemen running after them, but didn’t hit him. In fact the “target” was one of his accomplishes. The Federal Court applied here the comprehensive solution and accepted that all of them had committed attempted murder as co-principals, the “target” of the shooting included. Could this case reveal the comprehensive solution as not valid? The logical mistake of the decision lies nevertheless not in the application of the comprehensive solution, but in the fact, that the Court implicitly accepted a common decision of all of them, to shoot their companion, a decision which is inconsistent both with the law and the logic. Consequently, this example is not appropriate to establish a value contradiction of the comprehensive solution either.

VIII. The so called “apparent co-authorship” (Scheinmittäterschaft)

Also the cases of the so called “apparent or presumed co-authorship” were used to indicate the inadequacy of the comprehensive solution. We speak of an apparent co-authorship when at the moment of the beginning of the offence at least one participant acts in the erroneous belief, that all others have the same common criminal decision, while this is not true. In such cases an attempt is given only if the beginning of perpetration is carried out by the participant who indeed has the criminal intention. If, on the contrary, the beginning of perpetration is carried out by a person who has no criminal decision, his conduct cannot be attributed to the rest of the team. The reason is simple: since there is no common decision, there is no space to characterize the acting person as principal. Therefore, accepting criminal liability for attempted offence also with regard to the inactive participant in such cases, would lead to clear punishment of thoughts and would contradict to the role of the criminal law as guardian of civil liberties.

With regard to this issue two main decisions of the German Federal Court have been discussed: the so called “bell case” and the “case of the coin trader”.

In the “bell case” (BGHSt 39, 236) the defendants A and B had decided to rob an elderly couple. In this purpose, they asked a third person, C, to ring the bell of the victims’ door, so that they (A and B) could enter into the house, as soon as the door was open, in order to commit the robbery. C accepted, but he called the police, who intervened as soon as he rang the bell. It is therefore obvious, that C had no criminal intention at the moment of his act. That is why he could not be charged for attempted robbery: That C committed no attempt, is consequently not due to an insufficiency of the comprehensive solution, but to the lack of intention with regard to the entire offence. In other words: C didn’t want the whole robbery but rather just the beginning of perpetration of this offence, in order to facilitate the arrest of A and B. Here is therefore missing the main condition of any co-authorship, namely the common decision, which allows the mutual attribution of the conduct of each one co-principal to the others. The mere beginning of perpetration from the part of C (the ringing of the bell) which is not accompanied by respective intention covering the whole crime, cannot establish any attempt. The mutual attribution of his conduct to the others (as beginning of the attempt) is therefore not possible. Consequently, there is no space here for an application of the comprehensive solution. Such an application would be possible only if C’s conduct constituted a form of authorship itself.

The objection raised against this position, is that the missing intention of C is irrelevant: What is attributed to the co-principals is the objective element of the act and not the subjective element of the intention. This is however not convincing, because, as we have already seen, the mutual attribution of the act of each participant is based on the pre-existing common decision, which precisely is here missing. As we have further seen, C has no intention with regard to the entire offence. His intention covered only a part of it, namely the beginning of perpetration. He had therefore the intention of the agent provocateur. Consequently he had committed no attempted robbery and thus we cannot speak of application or not application of the comprehensive solution. The weakness of the latter have to be searched elsewhere.

IX. Value contradictions of the distinguishing solution

On the contrary, the application of distinguishing solution entails some value contradictions which cannot be overlooked. Let us take the following case: The defendant wants to steal the victim’s money. The actus reus of theft consists as we know, in two parts: waiving of the existing possession and establishment of a new possession. Therefore: if he is willing to commit the first part of the offence though another participant, who is arrested during the beginning of the execution, he himself remains unpunished. If, on the contrary he uses another instrument, a mechanism or an animal (e.g. a monkey) he is deemed to have committed attempt, and so his treatment is worse than in the previous case, although the use of a person is, as a rule, more dangerous. Moreover, the distinguishing solution amounts to an absurdity: It implies more than one starting moments of the attempt, since the attempt of the second co-principal begins much later than the attempt of the whole offence.

X. Solutions by application of the Doctrine of “Domination over the Act” (Tatherrschaftslehre)

A further solution to our problem has been proposed by the so called functional Doctrine of “Domination over the Act”, according to which a person is qualified as a co-principal if he dominates over the perpetration of the entire offence, i.e. when his contribution is so substantial, that the perpetration of the whole offence depends on him. Moreover it is argued, that every co-principal has two kinds of domination: a positive one, over the part which he executes himself and a negative one, over the whole offence, in the sense that he can prevent the accomplishment of it, by omitting his own contribution. On the grounds of this point of view the inactive participant cannot commit any attempt, since he has no domination over the attempt of the other participant, neither positive nor negative.

This argumentation is however exposed to strong objections, because of the vague character of the criterion used. When is a contribution “substantial”, and under which conditions? How could we distinguish a principal from an aider and abettor, whose contribution may be nevertheless equally substantial? This point of view creates therefore the danger of expanding the limits of authorship and may cause an unnecessary confusion with the concept of instigation. Furthermore, this opinion does not take into consideration that if the offence is committed by distribution of roles, the domination of each co-principal is weakened, since they dominate positively only their own part. Positive domination exists therefore only with reference to that part of the offence, which is done by each one participant, but not with reference to the whole offence. Consequently it is insufficient to justify the punishability of the co-principals.
But what about negative domination? Is it not a kind of domination as to the whole offence? The answer is negative, since this concept is in fact an empty phrase. It is obvious, that the perpetration and accomplishment of an offence can be prevented by anybody, not only by the police, but also by a civilian, as well, i.e. by third parties, who cannot not be, for that reason, qualified as principals.

XI. Conclusions

Eventually, we may come to the following conclusions: the “inactive” participant, who nevertheless is present at the place of the attempt, cannot be qualified as moral aider. If it were so, the conduct of the participant who has already began the perpetration could not establish any attempt. Because, according to his intention, a part of the offence has to be accomplished by another. Consequently, his punishment is possible only on the basis of the principles of co-authorship, namely the mutual attribution. On the contrary, if we accept, that the attempt is not committed in common, and that only the first one began the perpetration, then, in this case, even the punishment of the first one would not be possible, since he has no intention with regard to the whole offence. The sole sustainable solution is therefore only to consider the second, “inactive” participant as co-principal of the attempt, under the conditions mentioned above: presence, readiness to act, causality and “transfusion” of intention.-