Ineffective Attempt

Inept attempt

The term “inept attempt” is a central concept in criminal law and refers to an attempt where, for factual or legal reasons, the commission of the offense cannot lead to the realization of the criminal result from the outset. The inept attempt differs from other forms of criminal attempt and is an essential part of the doctrine of the General Part of criminal law. This article offers a comprehensive, detailed, and systematic presentation of the inept attempt, its legal foundations, areas of application, and legal consequences.

1. Definition and Legal Foundations

1.1 Definition

According to Section 22 of the Criminal Code (StGB), an inept attempt occurs when the offender intends to complete the offense, but the commission fails according to the plan due to a circumstance that makes the commission objectively impossible. The cause of the ineptness can be the means used, the object, or the target of the offense.

1.2 Statutory Basis

The relevant provision for the punishability of attempts is found in Section 22 StGB. In Germany, the inept attempt is generally punishable. What is decisive is that the perpetrator attempts to carry out the offense with the intent to achieve completion, even if the full offense cannot be realized.

1.3 Distinctions

The inept attempt must be distinguished from the

• suitable attempt (also: “true attempt stage”), in which, from the perpetrator’s perspective, the offense can be completed,
• superstitious attempt, in which the perpetrator does not even aim for a legally defined offense result (because a “magical effect” is relied upon; not punishable),
• error of law offense, in which the perpetrator mistakenly believes they are committing a crime, although their conduct is objectively not punishable (no attempt liability).

2. Forms of the Inept Attempt

2.1 Inept Means

An inept means is present when the tool or means used for the commission of the offense is objectively unsuitable to bring about the intended result. Example: Using a blank cartridge to kill someone.

2.2 Inept Object (Target Object)

An inept object arises when the perpetrator chooses an object that is not covered by the protected legal classification. Example: The offender attempts to commit “murder” against a person who is already deceased.

2.3 Ineptness for Legal Reasons

An inept attempt can also exist for legal reasons, for example if the perpetrator behaves in a way they mistakenly believe to be unlawful, but is in fact permitted or required (for example within the scope of a justification such as necessity).

3. Criminal Liability for the Inept Attempt

3.1 Criminal Liability under German Law

According to Section 23 (1) StGB, the attempt is in principle punishable if the law threatens the completed offense with a penalty. The inept attempt is equivalent to the suitable attempt; the objective suitability of the conduct to achieve the result is not required.

Excepted is the “grossly inept attempt” (Section 23 (3) StGB). This applies “if, in the opinion of the offender, the act was inept because of gross misunderstanding”; in that case, the court may reduce the penalty at its discretion or waive punishment.

3.2 Commencement of the Attempt and Intent

Criminal liability for the inept attempt requires the existence of an intent to commit the offense and an immediate commencement of the act. The perpetrator must have the will to realize all elements of the offense, and their actions must, according to their own perception, already be in immediate connection with the realization of the offense.

4. Theoretical Principles and Criminal Law Assessment

4.1 Subjective Theory

According to the subjective theory, only the offender’s perception is relevant: if the perpetrator believes they are committing a crime successfully, the attempt—even if objectively inept—is punishable.

4.2 Objective Requirements

Objective ineptness depends on the real, not the imagined, circumstances of the offense. It is crucial that under no circumstances could the intended result occur.

4.3 Legal Philosophical Considerations

The punishability of the inept attempt is justified by the protection of the public and the need for preventative hazard control. Even if no real danger exists, the existing potential for wrongdoing and the criminal energy of the perpetrator should be sanctioned.

5. Practical Relevance and Examples

5.1 Case Examples

• Poisoning with sugar: The perpetrator puts sugar into a drink believing it to be poison—inept attempt of causing bodily harm.
• Firing an unloaded weapon: An offender pulls the trigger of an unloaded weapon with the intent to kill a person—inept attempt of manslaughter.
• Cutting open a corpse: The perpetrator attempts to kill a person who is already deceased—inept attempt of murder.

5.2 Distinction from Other Attempt Stages

Determining exactly whether an inept attempt or already an error-of-law offense exists is particularly important in presumed legal violations, symbolic actions, or misunderstandings.

6. Comparative Legal Perspectives

In other legal systems, such as Austria (Section 15 StGB) and Switzerland (Art. 22 StGB), the inept attempt is also generally punishable. However, the regulations for mitigation or elimination of punishment may vary.

7. Legal Policy Considerations and Criticism

The punishability of the inept attempt is repeatedly a subject of policy debate. The criticism revolves around whether objectively impossible criminal acts should be punished at all. Proponents argue for protecting societal values and preventing danger, while critics fear that liability is extended too far.

8. Summary

The inept attempt is a special form of attempt in criminal law. It describes situations in which the offender tries to commit a crime that cannot objectively be completed because the means, the object, or the circumstances are inept. Despite the lack of objective success, the inept attempt remains generally punishable in Germany and comparable legal systems—only gross misunderstanding may lead to mitigation or waiver of punishment. Its significance lies particularly in sanctioning criminal intent and the preventive effect of criminal law.

References

• Joecks, Wolfgang: Studienkommentar StGB. Verlag C.H. Beck, current edition.
• Wessels/Beulke/Satzger: Criminal Law General Section. Vahlen Verlag, current edition.
• Schönke/Schröder: Criminal Code, commentary, current edition.

See also

• Attempt (criminal law)
• error of law offense
• Inept means
• Inept object of the offense

This article provides a comprehensive overview of the criminal law concept of inept attempts, its manifestations, legal foundations, and applicable examples and is designed for use in legal encyclopedias and as an advanced information resource.

Frequently Asked Questions

What are the criminal law consequences of an inept attempt?

Inept attempt is a special form of attempt in criminal law, which is expressly regulated in Section 23 (3) StGB. In criminal law, the inept attempt is generally treated like a suitable attempt; the attempt is punishable even if the statutory objective element is not actually present. However, guilt may exceptionally be excluded if the attempt appears so remote that “gross ineptitude” or superstition (Section 23 (3) StGB) is assumed. Courts examine on a case-by-case basis whether the perpetrator is acting according to their own perception and whether, from their perspective, completion of the offense would be possible. In practice, penalties or sentences may vary depending on the motive, danger, and degree of ineptitude, with punishment being waived in especially absurd cases.

How does an inept attempt differ from a suitable attempt?

The inept attempt differs from a suitable attempt in that, with an inept attempt, commission of the act is objectively impossible from the outset, either because the object of the offense does not exist or the desired outcome cannot be achieved for other factual reasons. In a suitable attempt, however, the act is in principle possible from an objective standpoint, but completion fails due to circumstances arising in the individual case. The inept attempt is thus doomed to fail due to external circumstances, while the suitable attempt could lead to completion under normal conditions. However, both types of attempt require intent and immediate commencement of execution.

When does a grossly inept (superstitious) inept attempt exist, and what effect does it have on liability?

A grossly inept or superstitious inept attempt exists when the conduct of the perpetrator deviates so far from any understandable comprehension that even a layperson would plainly see its futility. This particularly includes cases where, for example, the offender tries to achieve a certain goal through magical rituals or other objectively completely unrealistic actions, such as trying to kill someone with a magic spell. According to Section 23 (3) StGB, such an attempt is not punishable because it lacks any connection to real danger. The assessment of whether a superstitious attempt is present depends on all circumstances, taking into account general understanding and the individual abilities of the perpetrator.

Can negligent offenses be punishable in the sense of the inept attempt?

Under German criminal law, attempts are generally only punishable for intentional offenses, as attempt requires intent to complete the offense. Since the inept attempt is a special form of attempt, it is only possible in offenses for which attempt is punishable. Negligent offenses are excluded from attempt because they, by definition, do not involve intent, but a breach of due care. Therefore, an inept attempt of a negligent offense cannot result in liability. Thus, the inept attempt has no independent significance for negligent acts.

How is the possibility of withdrawal assessed in an inept attempt?

Even in an inept attempt, the possibility of withdrawal that exempts from punishment under Section 24 StGB principally applies. The perpetrator can withdraw from the attempt as long as the act has not been completed and they have not yet performed all the actions they deem necessary for bringing about the result. In inept attempts, this is often the case, since completion could never actually occur. Withdrawal in the inept attempt requires that the perpetrator, of their own free will, abandons further execution or otherwise prevents completion. Case law recognizes the rules on withdrawal fully for inept attempts as well.

What significance does the inept attempt have for the commencement of an attempt?

For the inept attempt, the same standards apply to the commencement of an attempt as to a suitable attempt. According to Section 22 StGB, there must be an immediate commencement of the act, which is judged according to the offender’s perception. The perpetrator must subjectively consider it possible to achieve the result and have formed the intent. The objective impossibility of completing the offense does not preclude the commencement of attempt as long as, from the perpetrator’s perspective, the threshold of “now it begins” has been crossed. Thus, the assessment is primarily from the perpetrator’s perspective.