Criminal responsibility in French criminal law is the obligation to answer for infractions committed and to suffer the punishment provided by the legislation that governs the infraction in question.
In a democracy citizens have rights but also duties: with freedom comes responsibility.
Unlike civil liability, the obligation to answer for damage one has caused, either by repairing it or paying damages and interest for it, criminal responsibility implies legal recourse for the state against a disturbance of the peace. This includes three major factors: participation in a criminal offense forms of criminal responsibility exceptions to criminal responsibility.
Participation
The author and the co-author The material author of the infraction is the person who physically performs the actions necessary to make up the criminal action. In the case of a murder this would be the person who struck the fatal blow. For crimes of omission the material author would be the person who didn't act when he had the possibility to save someone. Under the Ancien régime a collective responsibility was often envisaged. This concept disappeared in the codes, although jurisprudence sometimes makes use of a concept of collective guilt, but this is most apparent in conspiracy cases. (Article 450-1) Indeed, in a conspiracy, each participant in the group is considered the principal author of the infraction. The co-author materially participates in events at the side of the principal author, and incurs the same prescribed penalties, even if the principal author is in the end finally declared non-responsible, as in a case of dementia for example. The co-author may have extenuating circumstances such as youth. Aggravating circumstances are also possible, such as recidivism. Not to be confused with the accomplice, who would, for example, be the person who furnished the killer with a weapon. The moral author acts in the wings to have the crime committed, for example someone who pays to have a person killed or to have an object stolen, and is sometimes also called the intellectual author. French law doesn't really have this concept and such actions are addressed as conspiracies and sometimes described as complicity by provocation or by instruction. In the transition from the Napoleonic penal code of 1810 to the newer reformed criminal code, the reform commission considered including an autonomous criminal responsibility for intellectual authors but quickly abandoned the idea in the face of the difficulty of implementing such a modification of the criminal code while at the same time still preserving freedoms. However, in certain cases the moral authors may be prosecuted for the offense themselves, for instance for provocation to suicide or untruths. The untruths themselves are not criminal offences, nor is suicide. The "Perben 2" law of 2004 also created a specific infraction of instigating a crime, and sanctions the moral author of certain crimes, even when the instigation was not successful and the crime was not committed.
Attempt The penal code declares that the authorship of a crime includes not just the person who commits the incriminating act, but also he who in the cases provided by the law, only attempts to commit it.
An attempt is constituted when a beginning of execution has manifested and only was suspended or failed to have an effect because of circumstances independent of the author's will (Article 121-5)
A person is an accomplice who knowingly offers aid or assistance to the preparation or commission of an infraction. A person is equally an accomplice a person who by gift, promise, threat order abuse of authority or of power provokes into an infraction or who gives instructions for committing it (Article 121-7)
Article 121-4 of the penal code says that trying to commit a crime is punishable, but attempting to commit a misdemeanor is not, unless a law specifically so provides. Attempting to commit an infraction is never an offense. The author of an attempt is considered an author of the actual infraction of the penal code, and incurs the same penalties as if his attempt had succeeded.
Material element
The beginning of execution An attempt must manifest through the beginning of the commission of the infraction. The actor is no longer at the stage of preparatory actions, yet has not yet entirely found himself involved in the principal infraction. Jurisprudence defines the beginning of execution as the act or acts that "directly tend to the consommation of the infraction" (tendant directement à la consommation de l'infraction).
Example: arrêt Lacour, crim. 25 October 1962: Mr Lacour paid an individual to murder the adopted son of his mistress. The hired killer pretended to kidnap the adopted son, then collected his payment before reporting Lacour to the police. Lacour was prosecuted, notably, for attempted murder.
He was acquitted however, on the theory that his actions did not tend either directly or immediately towards the death of the victim. In reality, his actions were not attempted murder; they amounted to attempted conspiracy to commit murder. No matter what, Lacour would never have been a murderer, just an accomplice. Without having acted immediately and directly to commit the crime, he did not have a punishable attempt under the law of intent (although his actions could nonetheless be sanctioned under other criteria).
Attempted insurance fraud has given place to an important piece of jurisprudence: simply simulating a fire is merely a non-punishable act of preparation, because it does not result immediately and directly in disbursement of the policy amount. On the other hand, submitting a claim to the insurance company after making a false statement to the police would constitute the beginning of execution for the crime of fraud. A false declaration or statement, accompanied by fraudulent manoeuvers, or by staging or manipulating the evidence, have also been considered to amount to a beginning of execution.
Failure to voluntarily desist An attempt is a failed crime and the failure of that crime was contrary to the will of its author. On the other hand, preparing then voluntarily desisting from the criminality before the crime is committed halts any prosecution.
This mechanism can be explained differently. The person who voluntarily renounces his criminal business has shown that he wasn't dangerous. The law encourages future wrongdoers to renounce their path and offers impunity as a reward. One can equally explain the mechanism by justifying its prevention of criminal attempts: the idea is to punish the person whose irrevocable criminal intention has not yet led him to carry out the crime in question. So the person who renounces his criminal intentions proves by doing so that they were not irrevocable, and therefore in law there was no attempted crime.
If the attempt failed for reasons beyond the intentions of its author, such as a missed shot, an unexpected passerby or the arrival of law enforcement, a stooge unexpectedly quitting, or sometimes the actions of the victim (a rapist fleeing because of victim's screams),Crim. 26 avril 2000. the attempted crime is punishable.
The failure to voluntarily desist does not necessarily require the intervention of an outside force: Crim. 10 janvier 1996 held that an attempted rape which could not be completed due to the criminal's sexual dysfunction was nevertheless an attempted rape.
The problem may arise where the causes of the criminal stopping before he commits a crime was are mixed; for example, a moralizing friend dissuades an offender from committing a planned burglary.(Crim. 20 mars 1974). Circumstances in such cases have not forced him to desist but he hasn't independently or spontaneously opted not to commit the crime either.
The letter of the law, article 121-5 of the penal code, specifies that an attempted crime has occurred when the criminal action did not succeed solely because of circumstances independent of the defendant's actions.
The problem of an offender who flees in fear, for example, perhaps because he heard a noise, must be evaluated on a case-by-case basis. Jurisprudence generally seems to lean towards impunity when the fear was spontaneous.
Voluntarily desisting must come before the action is taken in order to absolve the defendant of responsibility. Some specialized statutes reward active repentance after an offense is committed, the conspiracy statutes for example, but these remain the exception. Penal law does not as such take into account voluntarily desisting from further offenses after a crime has been committed, seeing this as remorse with no judicial value.
Moral element The author of the attempted crime must have had the intent to carry it out. This element, which does not seem particularly remarkable at first glance, is nonetheless essential. This criminal intent justifies preventing attempted crime, regardless of any disturbances of the public order.
A special case of attempt: the impossible infraction Impossible offenses are those which were not carried out, not because of clumsiness or a chance intervening event, but because of an objective impossibility to commit the offence.
Some impossibilities are legislated into criminality: for example, the old penal code defined a crime of aborting a woman believed to be pregnant. This can be compared to provisions that refer to real or supposed attributes of certain persons, especially in matters of discrimination (article 225-1) of the penal code. It might seem impossible to be guilty of antisemitism towards a person who isn't Jewish, but this putative infraction is nonetheless outlawed.
Hypothetical impossible infractions unanticipated by legislators remain. Initially, 19th-century jurisprudence considered that if an offense was impossible it was also impossible to outlaw it. Since the offense had not been committed, the only possible grounds to prosecute it would be as an attempted crime.
The reasoning that leads to impunity relies on the very definition of an attempt: starting to execute the criminal action means performing the individual physical movements that lead directly and immediately to the criminal act. When the action is impossible there can exist no actions that tend to lead to it either directly or immediately. Therefore, no punishable attempted crime takes place; what does occur is a disturbance in the public peace.
This reasoning, which has legality going for it as well as a certain rationality, however, allowed offenders to escape prosecution who had nonetheless demonstrated their dangerousness and the irrevocability of their criminal determination. Faced with this reproach, jurisprudence took a middle path, seeking inspiration in doctrinal propositions which notably sought to distinguish between absolute and relative impossibility.
The former occurs when the object of the infraction does not exist, such as in the murder of a corpse, or when the means are intrinsically ineffective, such as poisoning with a non-toxic substance. Relative impossibility exists when the object of it exists but cannot for the moment be reached, or when the means used could have succeeded, a badly-aimed bullet for example. The doctrine also proposed a distinction between impossibility in fact (prosecutable) vs impossibility in law, where a critical element of the infraction is missing.
None of these criteria proved intellectually or judicially satisfactory. The Court of cassation, the French court of final appeal, eventually elected to systematically prosecute impossible infractions within its jurisdiction; see the Perdereau decision of 16 January 1986. In this case the crime was the attempted murder of a cadaver.