Attempt in Criminal Law
The term “attempt” in criminal law refers to the stage of criminal conduct between the mere decision to commit an offense and its completion. An attempt exists when the offender, according to his own view of the act, has already begun executing it, but the intended result has not yet occurred. The attempt is a central element of criminal law and serves to capture and punish actions aimed at committing a crime, even if it is ultimately not completed.
Dogmatic Classification
Within the legal system, attempt is a formal element of crime that precedes the completed offense. The rules concerning attempt apply primarily to criminal acts with a specific protective purpose. Attempt provides distinct principles of attribution and criminal liability, which can be differentiated into several categories.
Systematics and Legal Foundations
In Germany, the legal basis for attempt is laid out in Sections 22 to 24 of the Criminal Code (StGB). Comparable regulations exist in other legal systems, such as Austrian or Swiss criminal law. The key principles are modeled on the German approach, which provides detailed requirements for criminal liability for attempt.
Forms and Constituent Elements of an Attempt
Distinction: Criminal Intent, Preparation, and Execution
Before the threshold for criminal liability for attempt is crossed, there are stages of decision-making and preparation. While these steps may be internally or externally ascertainable, they are generally not punishable unless the law provides exceptions (e.g., in the case of preparing terrorist acts). Criminal liability for attempt begins only with what is known as the immediate commencement of executing the act.
Criminal Intent
Criminal intent involves the complete, serious, and final resolution to commit a specific offense. The offender must intend to fulfill all objective and subjective requirements of the relevant criminal statute.
Immediate Commencement (§ 22 StGB)
An attempt begins as soon as, according to the offender’s view of the act, he immediately begins to realize the offense. The decisive factors are the offender’s conception and the concrete endangerment of the protected legal interest. The point at which immediate commencement occurs regularly depends on the specific case and is clarified by case law.
Distinction from Completion
Completion of an offense occurs when the intended legal result is finalized. Attempt precedes this point and ends with completion or a final abandonment of the act’s execution.
Criminal Liability for Attempt
Not every attempt is punishable. Under German law (§ 23 StGB), attempt of a felony is always punishable, while attempt of a misdemeanor is only punishable if the law expressly provides for it. The distinction between felony and misdemeanor is based on the minimum prescribed penalty.
Completed and Incomplete Attempt
An incomplete attempt is present when the offender believes he has not yet done everything required to achieve the result. A completed attempt exists if the offender thinks he has already carried out everything necessary for completion, but the result still does not occur.
Types of Attempt
Single-Actor Attempt
In the single-actor attempt, a single offender commits the offense without any accomplices. Further distinctions are made according to types of offenders and qualities of conduct, insofar as the respective offense presupposes individual offender characteristics.
Joint Participation and Involvement
In attempts involving joint perpetrators (§ 25 II StGB) or broader forms of participation (instigation or assistance), criminal liability for attempt is differentiated according to the respective forms of involvement. Under § 30 StGB, even mere agreement to commit a felony can under certain circumstances be punishable.
Special Forms: Impossible Attempt, Mistake of Law
The impossible attempt (§ 23 III StGB) refers to cases where, from the offender’s perspective, all necessary conditions for committing the act have been fulfilled, but the object or means are in fact unsuitable to effect the offense. The so-called mistake of law arises when the offender incorrectly assumes his conduct is punishable, but in reality, no criminal statute is violated.
Withdrawal from Attempt
Withdrawal from attempt is regulated by law in § 24 StGB. An offender who voluntarily abandons further execution or prevents completion of the offense generally remains unpunished. It is required, however, that the withdrawal occurs from autonomous motives and that sufficient steps are taken to prevent the result.
Requirements for Exemption from Punishment by Withdrawal
For a successful withdrawal,
- the offense must not yet be completed,
- the withdrawal must be voluntary, and
- the offender must either refrain from further execution or actively prevent the result.
Withdrawal is also possible with a completed attempt, provided the offender effectively averts the result.
Attempt in International and Special Law
Regulations on attempt exist not only in general criminal law. International criminal law, juvenile criminal law, and administrative offenses law may have their own distinct definitions and assessments. International frameworks, such as the Rome Statute of the International Criminal Court, also contain provisions on attempt, though with particularities of international law.
Sentencing for Attempt
According to § 23 II StGB, attempt may be punished more leniently than the completed offense. Sentencing is based on the stage of withdrawal, the abstract and concrete danger posed by the conduct, and the extent of the offender’s efforts toward clarification.
Literature References
For an in-depth engagement with attempt in criminal law, reference can be made to leading treatises on criminal law dogmatics and commentaries on the General Part of the Criminal Code.
Conclusion: Attempt is a complex legal concept in criminal law that precisely defines the transition from mere planning of a crime to its actual execution. Its clear statutory framework protects both legal interests and potential offenders through the possibility of withdrawal without punishment, and ensures a differentiated evaluation of punishable conduct in the stage prior to completion.
Frequently Asked Questions
When does an attempt begin in legal terms?
An attempt begins when the offender, according to his conception of the act, immediately commences realization of the offense (§ 22 StGB). It is not enough for the offender to simply form resolutions or mentally prepare; rather, an objective act is required, which by its direction immediately aims to realize the statutory offense. In practice, this is often a difficult line to draw: An attempt may be considered to have begun, for example, when an offender uses burglary tools to pry open a door intending to break in, but has not yet entered. What is decisive is whether, from the perspective of a reasonable third party, the conduct constitutes an immediate threat to the protected legal interest, and whether the offender subjectively has crossed the threshold of “now it begins.”
What types of attempt exist under criminal law?
Criminal law generally distinguishes between incomplete and completed attempts. An incomplete attempt exists if, in the offender’s view, not all actions necessary for completion of the act have been carried out. Here, the offender believes that further acts are required to bring about the intended success. In contrast, in a completed attempt, the offender believes—according to his own assessment—that he has already done everything required for success, but the result does not transpire. There are also distinctions between sole, joint, and collaborative attempts as well as attempts committed by omission (§§ 13, 22 StGB).
What are the consequences of withdrawing from an attempt?
Withdrawal from an attempt protects the offender from criminal liability for the attempt under certain circumstances (§ 24 StGB). The prerequisite is that the offender voluntarily and finally abandons further execution (in the case of an incomplete attempt) or actively prevents the offense’s completion (in the case of a completed attempt). Voluntariness is present when the offender decides to withdraw due to autonomous motives, without external compulsion or insurmountable obstacles. Should withdrawal succeed, the offender remains unpunished, even if the attempt would otherwise have been punishable. However, exemption from punishment is excluded if the attempt has already failed or if the reasons preventing withdrawal are attributable to the offender.
When is an attempt punishable?
An attempt is generally punishable if the law provides for criminal liability for attempt (§ 23 StGB). For felonies—that is, offenses with a minimum sentence of one year imprisonment—attempt is always punishable. For misdemeanors, this depends on whether the law expressly creates criminal liability for attempt. For example, attempted theft is punishable because the law expressly states so (§ 242 para. 2 StGB). Regardless, attempt liability only arises if the offender acts intentionally; reckless attempt is excluded under German law.
What are the legal consequences of attempt compared to the completed offense?
Attempt is subject to a reduced penalty compared to the completed offense. According to § 23 para. 2 StGB, the court may reduce the penalty at its discretion. Factors considered include the degree of completion, the dangerousness of the attempt, and the proximity to success. Additionally, specific sentencing considerations (e.g. behavior on withdrawal, motivation) may be taken into account. In individual cases—especially in very early stages of attempt—the court may order significant mitigation or even exemption from punishment under § 49 para. 1 StGB.
How is attempt addressed in examination structures in criminal law?
In criminal case analysis, attempt is typically examined according to a standard schema: (1) Preliminary consideration (non-completion and punishability of attempt), (2) intent to commit the offense (subjective element), (3) immediate commencement (objective element), (4) unlawfulness and culpability, and (5) withdrawal. Both objective and subjective elements must be discussed in detail, especially concerning the offender’s conception and the qualitative threshold to attempt. The classification under attempt is significant for subsequent considerations of sentencing, legal consequences, and potential grounds for withdrawal.
What role does error play in attempt?
Error can be central to the evaluation of an attempt. These include, among others, mistake of fact (error in person, error in object) and impossible attempts. In cases of impossible attempt, the offender acts with intent to complete the offense, but the selected object is unsuitable for the act (e.g., shooting with an empty gun believing it is loaded). Such mistaken beliefs still generally result in liability for attempt provided that the offender has subjectively crossed the threshold into attempt. By contrast, lack of intent or errors regarding legal aspects can result in impunity, as the subjective component of intent to commit the offense is missing.
What is a failed attempt and what are its consequences?
A failed attempt is when, according to the offender’s conception, the intended outcome can no longer be achieved with the means available—the act is, from his perspective, definitively thwarted. Withdrawal from a failed attempt is legally excluded because no possibility of voluntary abandonment remains. In this case, the offender remains liable for attempt (§ 22 StGB) and cannot benefit from exoneration under § 24 StGB. Whether an attempt has failed is assessed mainly from the offender’s perspective at the time of the attempt; discrepancies between the objective and subjective circumstances may be relevant.
