25 Mar aberrant crime

With the expression "aberration” o “aberrant crime” are called those hypotheses in which the acting subject realizes, by mistake in the means of execution or for any other cause, a crime other than the intended one, or causes an offense against a person other than the one he intended to offend. The code provides for two specific cases of aberrant crime. l'aberratio ictrus (ex art. 82 c.p.) e the aberration of the offense (ex art. 83 c.p.). L’art. 82 c.p. has that:” – when, by mistake in the use of the means of execution of the crime or for another cause, an offense is caused to a person other than the one to whom the offense was directed, the offender responds as if he had committed the crime to the detriment of the person he wanted to offend, salvo, regarding aggravating and mitigating circumstances, the provisions of art. 60 c.p.; if, in addition to the different person, the one to whom the offense was directed is also offended, the offender is subject to the penalty established for the more serious offence, increased by up to half
Whose is this?, by mistake in the use of the means of execution or for any other cause, causes the offense (the intended one or a homogeneous offense) to a person other than the predestined one: it is the case, eg, of the subject than in an attempt to kill a person, kills another by mistake (for example why the bullet, deviating, hit one subject rather than another) or for any other reason (eg, when the agent pulls the trigger, the targeted person falls and another subject is hit). The law responds to the general principles on the psychological element of the crime: the error has no relevance and the officer responds as if he had hit the targeted person, so long as, since the offense carried out is normatively equivalent to the intended one, malice is Perfect in its constituent elements and fully invests the crime committed. For the purpose of fraud, indeed, the identity of the offended person is irrelevant, as the norm that punishes, eg, homicide protects human life as such. It is clear that the event to the detriment of the different person must not be wanted by the agent, not even by way of possible willful misconduct, since otherwise the event itself will respond precisely to fraud and not to art. 82 c.p.. Precisely because in the unintentional crime there is homogeneity between the intended event and the event (different and more serious) accomplished and, this different event must not be wanted by the agent, not even by way of possible malice, the aberration ictus is compatible with the intentional crime: in these terms, the thief who, during a bank robbery, hits a customer with the butt of his gun to silence him e, thereby accidentally firing a gunshot, kills another customer or bank employee, will answer for unintentional homicide for aberration or ictus pursuant to art. 82 c.p. With reference to the aberratio ictus, are possible 2 several concrete hypotheses:

• MONOLEUSIVE BLOW AVERAGE: it occurs when only the different person is offended.; this hypothesis is governed by the paragraph 1 dell’art. 82 c.p.

One wonders whether for the applicability of this provision it is necessary that at least the details of the attempt must be carried out in relation to the originally designated victim. The prevailing doctrine believes that due to the configurability of the hypothesis in question, the presence of the details of the attempt against the originally designated victim is not necessary in itself, the suitability of the documents suffices from before against the different subject. He takes sides against this thesis, however, a part of the more recent doctrine: according to many, reasoning differently, one would end up punishing as fraudulent behavior that has not yet been conceived towards the designated victim and therefore one would end up violating the principle no one will suffer the penalty of thought (literally: no one can suffer a poena for his "thoughts"). The following example confirms this: Dude, wanting to poison the old aunt, poisons some chocolates that he promises to give her and then places them in a drawer of his desk; the greedy servant, doing cleaning, find the chocolates, he eats one and dies. If we consider the first paragraph of the art. 82 c.p., Tizio would be called to answer for voluntary homicide for a conduct that is not typical and that is not suitable or unequivocally aimed at killing his aunt. L'aberratio carries monolesiva strokes, as established by the United Sections, that the perpetrator is liable for the crime committed against the other person as if he had committed it to the detriment of the person he intended to offend, except for the regime provided for by art 60 c.p. for the case of mistaken person.

• DIFFERENT STRIKE MULTIPLE OFFENSIVE: it occurs when both the predestined victim and a different person are offended at the same time; this hypothesis is configured in art. 82 comma 2, as a result of which the offender will be subject to the penalty established for the more serious offence, increased by half.
• The doctrine discusses whether the aberratio ictus takes place, o no, to a hypothesis of strict liability.

The answer is negative if we consider that the identity of the offended person is not the object of the fraud. In case of Aberration hit, the offender would commit an offense "normatively equivalent" to the intended one: Tizio wanted to kill a man and he just killed a man, even if different from the intended victim
The answer is instead affirmative if it is believed that the fraud does not concern the abstract event ("killing a man"), but the concrete event ("killing Caius").
Dude, who wanted to kill Caius, he excluded or did not even consider the possibility of killing Sempronio in his place. Se the art. 82 c.p. didn't exist, he would answer for attempted murder against Caio and manslaughter against Sempronio; therefore the norm, punishing him for voluntary manslaughter, would actually provide for strict liability.
As regards the aberration or plurilesive stroke, instead, A reinterpretation of the art has been proposed. 82 c.p., in order to make it more compliant with the constitutional principles on guilt: the offender should answer (by way of fraud) only if his mistake was due to at least a blow; that is, if it can be ascertained that a reasonable man, in its place, he could have been more cautious and realized the possibility of hitting a person further than the intended victim. However, the result is paradoxical, as if the legislator were prescribing at the same time: a) Of don't hold intentional aggressive conduct, in b) Of keep it in compliance with the precautionary rules to avoid offending people other than the intended victim.
To overcome this obvious contradiction, part of the doctrine suggests having regard to concrete predictability, gives part of the prisoner, the possibility of hitting a victim other than the intended one.
For the purpose of criminal liability, that is, it would be a question of ascertaining a minimum of guilt different from the violation of precautionary rules which gives rise to fault, and linked instead to simple predictability (concrete) of the aberrant event.

MISCONDUCT OF THE OFFENSE
“- Except for the cases provided for in the previous article, I know, by mistake in the use of the means of execution of the crime or for any other cause, an event other than the one intended is caused, the culprit is liable for the fault of the unwanted event, when the fact is foreseen by law as a negligent crime.
-If the culprit caused, also, the desired event, concurrence of offenses rules apply” (art. 83 c.p.)
Whose is this?, always by mistake in the use of the means of execution or for another cause, causes a crime other than the one intended and the fact committed is envisaged by law as a negligent crime: it is the hypothesis of Tizio who wants to kill Caio and shoots at him, but while shooting, Caio falls and the bullet hits flammable materials causing a fire. In this case Tizio will answer for negligent fire. If instead the bullet breaks a shop window, Tizio will not be able to answer for damage, as this crime is punished only as fraudulent intent. Se, in addition to the unwanted event, the desired event has also occurred, the legislator, in the second paragraph of the art. under exam, explicitly recalls the rules on the concurrence of crimes, for which the subject will be liable for a painful crime and a negligent crime (if for the latter there is a specific legislative provision). The engraved "more serious crime” contained in the art. 82 cpv ,it should be referred to the eventual presence, in the specific case, technical circumstances: therefore, in the event that a different event was caused by mistake in the execution (for example injury) next to the desired event (such as killing), will apply the art. 83 cpv. (deviation of the offense) and not the art. 82 cpv. (Aberration hit). If the event that occurred constitutes a natural and predictable progression of the intended one or of a more serious entity than this, the major event goes (according to the Cassation n. 3168/89) charged to the agent by way of fraud, alternative or optional depending on the case. Essentially, whenever the targeted event itself has been caused, but in damage to a different person we are in the presence of aberratio ictus, while every time an event different from the intended one is caused, there is an aberratio delicti. The event is different, in other words, when there is no homogeneity between the legal good that one wanted to harm and the legal good actually harmed. To give clear examples: a) will apply the art. 82 and not the art. 83, in the case of those who wanted to kill and only hurt ( the two events are homogeneous), or in the case of those who wanted to hurt but kill; b) will apply the art. 83, in the case of those who wanted to hurt but cause a fire, or wanted to damage a thing but causes the death of a person.
AVERAGE CAUSE
From the doctrine it was, in the end, created a third figure of aberratio, or the deviation of the cause of the journey, which occurs when, by mistake in the consuming phase, the causal succession took place in a different way from that foreseen by the agent. It is the case of whom, intending to kill a subject by drowning him, throws him into the river, but the subject does not die from drowning but because he hits his head against a stone. Then, no effect produces the different causal succession, as the subject will still answer for intentional homicide. It is different, instead, the hypothesis in which the subject believing with his own action to have caused a given event, determines it as a result of a subsequent action: it is the hypothesis of someone who shoots a person and mistakenly believes them dead and buries them alive, for which she subsequently dies of suffocation. In that case, part of the doctrine equally identifies the intentional crime, others, on the other hand, conclude that the intentional homicide attempt concurs with a negligent crime.