Abandonment of attempt in inchoate offences

Abstract

This article analyzes the applicability of the Brazilian concept of abandonment of attempt (article 15 of the Brazilian Penal Code) to inchoate offenses. The work confronts the prevailing thesis that emerged from the debates on crimes against democratic institutions (articles 359-L and 359-M of the Penal Code), which sustains that it is impossible to mitigate punishment for the abandoned attempt of an inchoate offense due to the structure of these crimes, which equate attempt with completion. Using the theory of norms and the systematic study of the criminal law system to demonstrate that the autonomous classification of attempt as an offence does not depart from the fundamental rules that governs attempt. It is argued that, as in common attempts (a form of crime incriminated by the combination of a supplementary clause in the General Part – secondary criminalization), abandonment of attempt in inchoate offenses affect punishability, aiming the deterrent effect over the final result sought by the agent (the abolition of the Democratic Rule of Law or a coup d’état). It is concluded that article 15 of the Penal Code, which establishes that abandoned attempts should be punished less severely should be applied also to inchoate offences. This solution is consistent with the criminal justice system and appropriate, as it preserves the incentive for the agent to interrupt the execution or prevent definitive damage to the legal right (marginal deterrent effect).