Max Planck Institute for Foreign and International Criminal Law

This project began in 2005 with a request from the chief prosecutor of the International Criminal Court for the former Yugoslavia for an expert opinion from the Max Planck Institute. The focus of the expert opinion was the attribution of criminal responsibility for the commission of crimes carried out as part of a larger complex of criminal activity by a network composed of numerous individuals, a scenario seen repeatedly in the cases being tried by the court. This comparative law project on Latin America is a continuation of the original study. The research goal is to ascertain, on the basis of group crime, whether there is a Latin American model for the attribution of responsibility for acts that, taken together, make up complex crime, in order to lay the foundation for a Latin American Model Criminal Code – an attempt to prepare such a code was already made in the 1970s and 1980s. The central thesis is that all criminal law systems analyzed within the context of this study have responded to the problem of group crime with similar models of attribution.

To this end, nine countries were selected (Argentina, Brazil, Costa Rica, Chile, Columbia, Mexico, Peru, Uruguay, and Venezuela). Methodologically, the project is being conducted as follows: (a) the normative and doctrinal aspects of the individual models of attribution are studied and classified; (b) in each participating country, the disposition of cases that have arisen in practice in which criminal networks play a role and various groupings of people (as members of criminal organizations, mere accessories, etc.) participate is studied on the basis of that country’s normative system; in order to (c) compare the models and dispositions; and finally (d) to address the issue of the existence of a Latin American model of attribution for participation in crime.

Final results are not yet available. The results to date show, however, that all the countries under study exhibit, to a large extent, a similar foundation for the attribution of criminal liability to participants in crime. Most of the countries differentiate between perpetration (Täterschaft) and accessoryship (Teilnahme). The majority employs the doctrine of hegemony or control over the act (Tatherrschaftslehre). Several systems (Brazil, Mexico, Uruguay) orient themselves to the Italian criminal law doctrine, which does not mean, however, that they have adopted the "unitary" approach to participation in crime (Einheitstäterprinzip). In sentencing, the majority of the countries makes a quantitative distinction between perpetrators and instigators, on the one hand, and accessories, on the other; in the case of the latter, sentences are mitigated. To date it cannot be confirmed that Latin America has a model for perpetration and accessoryship that deviates from a doctrinal perspective from the current German model. In this respect, the adoption in many countries of the doctrine of hegemony or control over the act and – especially with regard to international crimes – the adoption of the theory of indirect perpetration (mittelbarer Täterschaft) in the context of hierarchical power structures are emphasized in the literature and case law. In comparison to the instrument of joint criminal enterprise as developed in the case law of the International Criminal Court for the former Yugoslavia, which, in its third category amounts to strict liability, each of the Latin American systems analyzed is further developed in a doctrinal sense and is, objectively, narrower in scope.