Error in the inverted pre-typical sphere: putative offence or ineffective attempt?

Reflections on error and intent from Puppe’s perspective

Abstract

The question regarding the relevance of the different existing mistakes, and which of these exclude intent, has long been a matter of debate in the field of criminal law. Nevertheless, there is a concept of mistake that stems from a mistake the perpetrator had but in another field of the Law, i.e. in Civil Law, and has an effect on other mistake, which is relevant to the criminal law. This discussion called for an interesting debate in the German and Spanish discussion. Although largely neglected, it has provoked considerable dialogue among those who have engaged with it, albeit from different viewpoints. This paper first outlines the current state of the debate in contemporary discussion — namely, the position that sets forth that such mistake should invariably be punishable as impossible attempt, and the opposing view that puts forward the idea of considering a putative offence. As if it were not enough, there is an intermediate position, defended by Puppe. This perspective holds that a distinction must be drawn between some elements of the offence: provided that the mistake refers a blank criminal laws, the intent is excluded. Nevertheless, the present paper contends that such a distinction would be both arbitrary and a source of legal uncertainty. It comes to the conclusion that, among the available alternatives, the position advocates for the putative offense offers the greatest persuasive force.