Crimen (Beograd) (Jan 2018)
Aberratio ictus in criminal law
Abstract
This article discusses different legal solutions to situations referred to as 'aberratio ictus', in terms of its particular manifestation in criminal law. The concept of aberratio ictus, that can be translated as 'attack gone astray' is used to determine criminal responsibility of the offender, when his actions, directed to committing a specific offence, abberate from the expected course of events, resulting in harming an unintended object. Doctrinal solutions in this area variate between the theory of equivalence and the theory of concretisation, both of which impose exclusive arguments regarding the object of the intent. Thus, the first one emphasizes the protection of abstract values, that results in punishing the offender for the completed, intentional offence, despite the aberration. On the other hand, the reasoning behind the theory of concretization takes into account the relevance of the specific identification regarding the object of intent. According to this view, the offender is liable for the attempt towards the first object, accompanied with negligence liability for the result. It can be noticed that the legal nature of the protected objects appears as a decisive circumstance for determining criminal responsibility. Unlike the situations when the mentioned objects are not of equal values, where there is no doubt that aberratio ictus involves the responsibility consisting of the attempted offence, in addition to negligence towards the actual result, the equivalence of the attacked and harmed object, causes divergent opinions among different authors in legal theory. This affects not only the legal solutions in positive criminal law, which are mainly based on general rules, but also the judicial practice in this area, that is evidently not unique. Also, it can not be negated that these solutions are based on valuative criteria, giving the advantage to one value versus the other. After analyzing the application of suggested theories in practice and comparative legal solutions, the author pleads in favour of the attempt model, based on the theory of concretization, suggesting the possibility of its legal regulation in Serbian criminal law. Its advantages are therefore attached to better concordance with practical demands and main principles of criminal law in general.
