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Authorship v.

Complicity
The Portuguese overview, with regards to excessus mandati
Approach to Case II: HR 20 February 2007, NJ 2007, 263

Author: Sofia Meneses


Student number: S2822792
Date: November, 2014
Coordinator: Dr. Laura Peters

Preface
On Friday 17 October 2014, the Department of Criminal Law and Criminology of the
University of Groningen and the Groningen Centre of Law and Governance [hosted] an
international conference entitled Acting together in crime European and international aspects.
This conference focuss[ed] on criminal liability as it pertains to joint participation in criminal
offences.
Throughout the last decade, various judgments from the Dutch Supreme Court have
addressed this criminal concept and have expanded its interpretation. As a result, the legal
relationship between the Dutch concepts of joint perpetration (medeplegen) and assistance to
criminal offences (medeplichtigheid) has changed. During the conference, five decisions
rendered by the Dutch Supreme Court on joint perpetration and assistance to criminal offences
[were] discussed against the background of the law on participation in crime in Austrian, Dutch,
French, German and Italian law, and in the light of international criminal law.1

Description from Conference attended, entitled: Acting together in crime European and international aspects,
by the Department of Criminal Law and Criminology of the University of Groningen and the Groningen Centre of
Law and Governance.
1

Table of contents
Introduction ..................................................................................................................................... 4
Authorship v. Complicity ................................................................................................................ 5
.1.: Authorship............................................................................................................................ 5
.1.1.: Theories of Authorship ............................................................................................ 6
.1.2.: Co-authorship ........................................................................................................... 7
.2.: Case II............................................................................................................................... 8
Conclusion ...................................................................................................................................... 9
Bibliography ................................................................................................................................. 10
Appendix ....................................................................................................................................... 11

Introduction
One can talk of excessus mandati when one of the authors of a certain crime (the
immediate author, one of the co-perpetrators or the one who has been instigated), outreaches and
goes beyond what was previously settled between the wrongdoers, (e.g. battery instead of
assault) or even commits a different crime altogether (f.e. theft and rape, when what had been
stipulated was merely theft). Consequently, who, of all the parties involved, should be
considered an Author under Portuguese law, and who should answer for any excessus?
Extensive research and debate has created somewhat of a division that has been generally
accepted, despite legal debate: Co-perpetration entails a summa divisio between Authorship
(v.g., Article 26 of the Portuguese Penal Code [PPC]) and Complicity, given that the former
encompasses three concepts: (i) mediate authorship, (ii) co-authorship and (iii) instigation.
The latter refers to participation.
Thus, to unravel who should be considered as author and who should not, the present
chapter proposes to first distinguish between author and accomplice, mainly due to the
practical importance of said division and its effects: the accomplice is less punished than the
author (c.f. Article 27 PPC).
A brief comment on co-authorship will follow, concluding with the Portuguese view on
the excessus mandati theme, all illustrated with Case II: HR 20 February 2007, NJ 2007, 263
[Case II]2, previously debated on the Conference.

See Appendix.

Authorship v. Complicity
The definition of the concepts sub examine finds its core at the interpretation of Articles
26 and 27 PPC. The Articles read as follows:
Article 26
Authorship
He who performs the act, by himself or by someone as an intermediary, or who directly
participates in its execution, in agreement or together with other person, or other persons, or who
intentionally determines other person to carry out the act, is punishable as principal, if there has
been execution or the beginning of execution.
Article 27
Complicity
1. He who, intentionally or in whatever form, materially or morally helps other person to perform
an intentional act, is punishable as accomplice.
2. The penalty applicable to the accomplice is the one which is fixed for the principal, specially
mitigated.3

.1.: Authorship
Should one turn to the ontological concept of author4, one may realize that the legal
concept does not coincide with its definition, making it difficult to provide distinction between
authorship and participation. If EDUARDO CORREIAs doctrine5 was upheld, one would
regard the author solely as someone who performs the actus reus of a certain crime (an objective
view of the concept), thus giving rise to causality rules: author of a crime will be any subject
who has given cause to a crime. However, this restrictive concept would not provide a proper
scope of application, failing to encompass those who collaborated on the perpetration of said
3

RAMALHO, ., THEMUDO GILMAN, W., The Portuguese Penal Code (General Part) (ARTICES 1-130), Verbo
Jurdico, 2006, p. 9 (digital version)
4
Author definition: NOUN [COUNTABLE], /(r)/, FORMAL, the person who is responsible for something;
definition by http://www.macmillandictionary.com/dictionary/british/author.
5
CORREIA, E., with DIAS, F.s cooperation, Direito Criminal, II, Livraria Almedina, Coimbra, 1965, p. 246

crime, without actually performing it. This category of subjects cannot be punished if one
maintains a restrictive view; hence, shouldnt it be penalized as well, given that said crime would
(most likely, or even definitely) not have taken place without the mentioned help?
To paraphrase CORREIA 6 , one should note that, being of an accessory nature,
participation could be graded on many different levels, as many as the demands that one could
provide to punish an instigator and an accomplice; however, this would still not comprise those
cases for which the law demands specific intentions: those which only the instigator or the
accomplice have. Correspondingly, to punish them it would be necessary to use the concept of
mediate authorship, and acknowledge that co-perpetration is, before all, also authorship.
Therefore, one can bring to the equation the so-called Schuldteilnametheorie, meaning that
one is able to extend the authors punishment to the co-perpetrators, based on the fact that they
actually were a part of the actus reus, somewhat producing their guilt.

.1.1.: Theories of Authorship


Much like the German system in which the Portuguese system finds its roots two
theories characterize the concept of author: the Unified Theory and the Differentiated Theory;
the former being the theory which adopts an extensive concept of authorship, assigning blame
(and therefore becoming an author) to any subject who would take part in committing a crime,
regardless of its role being decisive or merely secondary. The latter7 theory being the one in
which author is the subject who triggers, controls and orientates the fact(s) towards producing
the result.
Subsequently, under the first theory, every accomplice qualifies as author, leaving the
Court to decide the extent to which the perpetrator should be punished, based on whether or not
they played a significant role; this means that the distinction between author and accomplice
surpasses to a judicial stage, and not legal. On the other hand, the (mentioned version of the)
Differentiated Theory acknowledges only one author, leaving the accomplice qualification for

Portuguese Supreme Court of Justice, Pires da Graa (Relator), in: Processo 3867/07, Judgment, 2009.
Specifically regarding the version of said theory adopted by the Portuguese system, already cited by ROXIN in
1970.
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those who intervene or participate on someone elses (the authors) domain of the fact (the
crime).

.1.2.: Co-authorship
Focusing on co-authorship or co-perpetration, Article 26 PPC states two requisites: (i)
joint decision, and (ii) joint performance; in this way, co-authorship is different from complicity
precisely because the accomplice is not a part of the decision-making-process. On the other hand,
when it comes to performing the wrongdoing, each participant has a decisive role to play, rather
than merely proving factual or psychic aid towards the perpetration of said crime. Helping
create the necessary conditions is what defines an accomplice8, whose performance is therefore
secondary and not determining (precisely due to his lack of domain over the fact; c.f. Article 27
PPC).

One should note that there an extra requirement: dolus of both the accomplice and of the author.

.2.: Case II
With this in mind and faced with Case II, under Portuguese law, on the one hand, all four
men would be considered co-authors, since C and As impute was significant and had domain
over the fact, given that they were encumbered with the very important task of vigilance.
On the other hand, with regards to Bs actions, the Portuguese rule states that9 the one to
be punished for the aggrandizement should be, accordingly, the one who performed it; however,
if the excessiveness can be attributed to the other co-perpetrators based on dolus eventualis or
negligence, the first one shall not take the blame in full, rather sharing it on each ones degree
of guilt. Therefore, and as the Portuguese Supreme Court of Justice10 very well laid it, it is
possible to state that in order to hold all of the involved parties responsible for the result, it
suffices to prove that all of them were able to predict said result, (at least based on dolus
eventualis or negligence, settling with the possibility of its occurrence).
As a result, under Portuguese law, all parties would be convicted for the excessus
mandati (physically) performed by B; more specifically, D would be convicted on the basis of
negligence and A and C for dolus eventualis.

10

Article 29
Guilt in participation
Each participant is punished according to his guilt, regardless of the punishment or degree of guilt concerning the other
participants.

Portuguese Supreme Court of Justice, Dinis Alves (Relator), in: Processo 3160/01, Judgment, 2001; Case in
which B stayed in the car waiting for A to rob a gas station, while A ended up murdering two employees while
trying to kill a costumer.

Conclusion
In essence, one can question whether or not the Portuguese solution is the most righteous,
or if further work and research should continue in search of a better resolution, seeking aid
through comparative law methods.
In my personal opinion, even though a more rightful solution may be yet to come, I
believe that the present solution has been built upon the correct premise: one should pay for
ones sins, but only to the extent that one has sinned. One cannot hold accountable individual A
in the same measure as one would B, if B was a mere accomplice to the crime who provided
information as to when the employee of the gas station would be on his break and therefore
leaving the cashier unaccounted for. Furthermore, if both are to blame and put into the same
category of authors, can we nonetheless disregard another different set of guilt stages? Is the
one holding the money and preparing to flee as guilty as the one who holds the knife to the
victims neck, threatening his life and preventing him from interrupting the theft?
To say that the individual that stays in the car watching the neighborhood is guilty,
cannot be disputed; likewise, no one can put into question the blame of the one who holds the
knife! However, when one comes across fifty shades of the same grey, should one stick to the
basic color or strive to find the most accurate label possible? Being guilty of facilitating
circumstances is not the same as being guilty of murder or manslaughter, for instance.
I believe that no individual is the same and blame cannot be assigned on one single level,
therefor giving reason to the Differentiated Theory, while condemning the Unified Theory.

Bibliography
Books
CORREIA, E., with DIAS, F.s cooperation, Direito Criminal, II, Livraria Almedina,
Coimbra, 1965, p. 246
RAMALHO, ., THEMUDO GILMAN, W., The Portuguese Penal Code (General
Part) (ARTICES 1-130), Verbo Jurdico, 2006, p. 9 (digital version)

Case Law
Case II: HR 20 February 2007, NJ 2007, 263
Portuguese Supreme Court of Justice, Pires da Graa (Relator), in: Processo 3867/07,
Judgment, 2009,
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/9c79877ed27fce8d8025
75f60038702b?OpenDocument;
Portuguese Supreme Court of Justice, Dinis Alves (Relator), in: Processo 3160/01,
Judgment, 2001, www.fd.unl.pt/docentes_docs/ma/tpb_ma_12559.doc.

Appendix
Case II: HR 20 February 2007, NJ 2007, 263
On Monday 8 March 2004, B drafts a plan with C to hold up X and demand his bank
card and PIN code. C says that he will ask D and A to join in.
The next day B meets with C, D and the accused (A) at Ds car. B gets himself and D a
balaclava and gloves. Then, they drive around altogether, making arrangements. Among other,
they talk about the division of the expected loot. They agree that C, D and A will get 1.000 euro
per person. Further, they agree that B and D will enter Xs house, and that C and A will keep
watch. If something would go wrong, C and A will call B and D.
Accordingly, the four men park the car and walk past the house of X. They see him
sitting in front of his television and they discuss once more on how to execute their plan. After
this, C goes to stand guard at the corner of the street, and A stands guard near a patch at the back
of the house.
B and D go to the back of the house and B knocks on the door. After two times knocking,
X opens the door. B pushes X inside and X starts screaming. B gets scared for a moment and
then keeps the mouth of X closed. While he holds X, the latter strikes back. Meanwhile, D has
entered the living room.
X grabs a knife off of the drain board. At that moment, B stands behind him. B picks up
the knife, swinging it at X. He first cuts X on his cheek. X screams and comes towards B. Then
B stabs X and hits him at the left side of his neck. X falls. B stabs three more times in the body,
after which X dies. During the altercation between B and X, D remains in the same room holding
80 euro he had found in the living room. B and D leave the house and walk to the car, where also
C and A arrived. Until that moment, A had continuously been waiting on the corner of the street.

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