Normative qualification of facts in criminal attempts and the determination of the legal consequence

Abstract

This research analyzes the technical complexity faced by Ecuadorian judges when determining criminal sanctions in cases of attempted crimes. The central problem arises because Article 39 of the Comprehensive Organic Criminal Code requires calculating the sentence based on the penalty that would have been imposed had the crime been completed. This rule necessitates the formulation of a theoretical sentence, based on an assumption that cannot be verified. The difficulty in applying the rules of individualization increases with the complexity of the situations. The sentence and mitigating or aggravating circumstances are often based on the assumption that the crime was completed. The objective is to determine the legal limits of normative subsumption and sentencing guidelines. The research employs a qualitative, descriptive-documentary research method. It demonstrates that the judge should project an ideal fiction only for the purpose of calculating the reference sentence, but in no way may they use this fiction to attribute nonexistent results or apply aggravating circumstances whose application does not correspond to the facts established by the evidence. Arguments of substantial similarity and identity of reasoning can function as disguised modes of argumentation, especially if their objective is to increase the penalty. It is concluded that the penalty for attempted crimes must respect a clear limit: the law allows for projecting the penalty, but not for artificially completing reality. Judicial individualization must assess the danger created, the degree of execution, and the circumstances actually proven. If the judge fills factual gaps through analogy, they illegitimately expand the State's punitive power and violate due process.