La frustracion en delitos de mera actividad a la luz de determinadas sentencias

Abstract

According to the majority doctrinaire perspective, frustration is not conceived of as a form of imperfect perpetration in offenses which are crimes even without actual harm or in wrongdoings. These would give rise only to the attempt; instead it would be possible to talk about frustration when referring to those offenses causing harm. However, there are higher court decisions which, even via re-qualification of the attempt to frustration, have given rise to the latter in such a classic offense as rape. A first possibility is to consider that the decision of those who pass judgment has been guided by the penalizing effect it entails, a matter that in the commented sentences does not seem to be a determining factor. In fact, these undertake the analysis of the developmental stages of the offense and, according to this, they conclude that what corresponds to the examined situation is frustration. Basically, the relevant criterion seems to be the subject’s proximity to the conduct, so that it could be possible to contend that in these cases the perpetrator was doing the last necessary act to complete his/her conduct. If this act had been finished, it would have been completed with no need to add a subsequent act, with a probability on the verge of certainty. The sentences at issue do not mention the result when they refer to the completion and, with this, they do not shift the typical structure of the offense; they refer only to the need for the conduct to be completed in the terms of Article 7 of the Criminal Law.