What is the attempted offence?

The criminal system in Spain provides for the existence of the figure of attempt for those situations in which, although all the elements of the offence are present, the result sought by the perpetrator is not achieved. Its regulation aims to ensure that even attempts to commit a crime do not go unpunished, thus reinforcing the protection of the legal assets affected by the perpetrator's actions.

Therefore, in today's post we are going to explain what constitutes an attempt in Criminal Law, what its requirements are and what consequences it entails.

What do we understand by attempt?

Attempt is defined as an imperfect form of execution of the crime when, having carried out all the elements of the crime, its objective is not achieved.

For example, imagine that a person aims a firearm at another person with the intention of killing him. However, before he can shoot, the victim manages to flee the scene or a third person intervenes and prevents the fatal shot from being fired. In this situation, we see that all the acts that objectively could have caused the result of the victim's death were carried out, although that result did not take place for reasons beyond the perpetrator's control.

On the other hand, let's suppose that a person forces the entrance lock to enter a house with the intention of stealing, but when he enters the house and after taking the valuables he intended to take, the security alarm is activated and the police come to the house. The perpetrator is then caught red-handed. Once again, we see that the result intended by the perpetrator of the crime has not occurred due to his arrest, although the objective and subjective elements of the offence are present.

What are the requirements of attempted crime?

According to the Penal Code, the following requirements must be met for an attempted crime to be committed:

1. The author of the crime must have the will to commit the crime, i.e. there must be intent, and the rest of the subjective elements of the specific criminal offence must be present.

2. The execution of the offence must have been started directly by external events.

3. The acts carried out must be objectively suitable for achieving the result of the offence, i.e. acts that are rationally suitable for causing the intended result, according to common experience, must have been carried out.

4. These acts must not have led to the harmful result of the offence, since in that case we would be dealing with a completed offence and not with an attempt.

Is an attempt punishable?

Although the intended result of the offence has not been achieved, attempts are punishable under the Penal Code as specified in Article 15.

What are the consequences of an attempted offence? 

Given that an attempted crime is punishable, and in order to differentiate the consequences of the commission of a completed crime from those of an attempted crime, Article 62 of the Criminal Code provides that an attempted crime shall be sentenced to a penalty 1 or 2 degrees lower than that established for the completed crime, taking into account the degree of execution achieved and the danger generated by the conduct.

Given that the penalty contemplated for the consummated crime of murder is between 10 and 15 years imprisonment, taking into account the danger inherent in the attempt and the degree of execution, we could apply the reduction of the penalty by one degree, resulting in a prison sentence of between 5 and 10 years minus 1 day; or by two degrees, resulting in a sentence of 2.5 to 5 years minus one day imprisonment. However, it should not be forgotten that the decision to reduce the sentence by one or two degrees will be left to the decision of the judge hearing the case on the basis of the criteria set out above.

Furthermore, the offender will have a criminal record until it can be expunged, as this is generated regardless of whether the offence was completed or attempted.

If you have suffered an attempted crime, we can help you.