2017

Abstract: Thispaper aims to provide a comparative analysis of the two major schools of thought regarding putative crimes, with reference to the possibility of treating an act as an attempt or adopting the theory of impunity. To assess the perspectives offered by judicial practice and the specialized literature, the starting point is the forms of error that may underlie the classification of a putative act: factual error and legal error.

Beyond domestic case law, this paper also addresses relevant aspects of comparative law, as well as the reasons why French-inspired legal systems have experienced shifts in case law on this matter. Last but not least, we set out to analyze the available case law on the subject, which reveals divergences in the application of the concept of putative offenses. This lack of consistency in case law calls for clear regulation of putative offenses and the establishment of guidelines to create a predictable framework in this area.

The paper also presents the differences in the application of the concept of “attempt” under the 2014 Penal Code compared to the previous legislation, as well as the importance of the appropriate nature of the act in current legislation. Although it serves as a starting point for resolving disagreements on this matter, it remains for the state to precisely define its criminal policy in this regard, as technical and legislative considerations argue in favor of punishment, while historical and teleological arguments justify impunity for putative offenses.

Keywords:putative offense, attempt, idoneu, error, reverse factual error, reverse legal error, result-based offenses, danger-based offenses, material object, legal object, result of the offense, corruption offenses, accepting a bribe, error regarding a public official’s duty, undercover agent, integrity screening of Ministry of Internal Affairs officers;