Causation and complicity in a Crime According to Georgian and Anglo-American Law

Causation in Complicity in a Crime According to Georgian and Anglo-American Law

Tsikarishvili Kakha

ABSTRACT. According to Georgian law, causation is objective ground for liability for complicity. Anglo American Law does not require causation for complicity. Person may be liable as accomplice if his conduct has contributed to the commission of the offence by the principle. However, some scholars in Anglo American law recognize causation in complicity, though they think that in every case we should distinguish between causal and non causal accomplices.

Keywords: Complicity, principle, aider, objective side of the crime, risk creating offence, civil agent doctrine, concealment of the crime, causation, result, freewill, condicio sine qua non, “but for test”.

1. Introduction

Complicity in a crime is one of the interesting and complex problems of the general part of criminal law. In spite of the fact that the mentioned institution is comprehensively examined in Georgian juridical literature, there are still lots of important disputable issues even today.

Study of foreign countries’ experience shows that despite the approachment and harmonization of legal systems advanced countries maintain different approaches to the institutes of general part of criminal law, one of which is complicity in a crime.

In modern legal systems there is diversity of opinions about the basis of punishability of complicity, forms of its manifestation, objective and subjective connection between the act of a culpable accomplice in crime and the outcome, the difference between principle offender and an accomplice in crime and so on.

The present paper concerns one of important themes – a causation between the act of a culpable accomplice in crime and the result. It should be noted that according to the doctrine and court practice predominated in Anglo-American law stating causation between the act and the result is not required. In such a case a question is arisen - if not on a causation, then on what ground the liability for complicity is based. On the other side the issue of the objective ground of of liability for complicity isfirmly established in Georgian criminal law, though its certain aspects are causing different opinions.

2. Causation in Complicity in Georgian Criminal Law

Causation in Georgian criminal law is an element of the objective composition of the act, which is expressly required by written . According to part one of Article 8 of Criminal Code: `If a crime is considered completed only when an act has caused an unlawful result or created a specific threat of the occurrence of such result, it shall be necessary to establish causation between this act and the result or threat.~ Part two of the same article for establishing causation uses hypothetical elimination method (hypothetical elimination method): `Causation shall exist when an act constituted a necessary condition for the unlawful result or specific threat provided for under the relevant article of this Code, without which this time the result or such threat would not have occurred.” .

In Georgian criminal law it is firmly established that complicity implies the existence of casual connection between an act of the accomplice in crime and the result.

In opinion of Professor Otar Gamkrelidze causation in complicity has double meaning: firstly it functions as some kind of guarantee; it is the limit, beyond which responsibility can’t be spread for complicity in a crime. Secondly, the object of encroachment of a principal and accomplicein the crime is one and the same thing.

In the Soviet criminal law the necessity of establishing causation in complicity was confronted by A. Vishinsky, who shared the approach of English criminal law of that time and considered that any connection of a person with a crime was sufficient for complicity. By this approach concealment of a crime is one of the forms of complicity . T. Tsereteli correctly mentions, that the concept “any connection’’ is so broad and infinitive, that it would have been followed by fixing a criminal responsibility on persons, who not only had not participated in the crime, had not even known anything about it” .

According to T. Tsereteli, “The unity of objective side of the participants’ act first of all is expressed in such a way that each participant’s conduct must be in causative connection with the criminal result. So this result must be a product of their common activity .

T. Tsereteli criticizes the approach of some Western Criminal jurisdictions, which denies the existence of causative connection between the participant’s act and the result of a crime to such extent that “a perpetrator, which decides “freely” to commit a crime, always starts a chain of a new and independent causative connection” .

She says: “A special nature of psychological regularity allows us to substantiate the causative character not only of the principal’s act, but also of the instigator’s and helper’s acts. A human being is able by means of volitional act to have influence on the world around, to submit its regularities to the consciously set goal. But at the same time a human’s will is conditioned not by his will itself, not from emptiness, but by the human’s environment. As much the person’s will is determined by the human environment, as much personby his any act does not start a new chain of causation, which terminates the chain existed before, but he continues it, adding new rings to it” .

According to T. Tsereteli, it is not hard to establish causative connection between the act and the bad result, when an assisting offender physically participates in committing a crime, for example, when a person handed a firearm to the perpetrator to commit murder or brought him a ladder to get into a storage house in order to rob it. T. Tsereteli concludes, that “in these cases a physically assisting person creates the necessary condition, without which a criminal result would not have been carried out” , but more complicated is a causative connection between a psychical accomplice in crime and a criminal result. The influence of a psychical accomplice in crime will pass in consciousness of the perpetrator, will become a motive of his volitional act and so he will be involved in the chain of the causative connection” .

The opinion that the participants’ act must be in causative connection with the criminal result was recognized in the theory of the Soviet Criminal Law and it was also shared by court practice . The evidence of it is the judgment of the Criminal Panel of Supreme Court of the Soviet Union dated on the 15th of July,

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