A New Perspective on Criminal Liability for Preparatory Acts

In the past, the criminalization of preparatory acts in the penal code was a rare occurrence. However, this perspective shifted in 1994 with the inclusion of Article 46 in the Criminal Code, which established a general provision for the criminalization of preparing serious offenses. This cahier is dedicated to exploring the boundaries that this article sets for criminal liability concerning preparatory acts.

Since the introduction of this provision, two amendments have followed in 2002 and 2007. As a result, the phrases "in association" and "evidently" were removed from the legal definition. The latter modification ignited a discussion in legal literature about whether it led to a subjectification of the criminalization. This question is closely tied to the interpretation of the landmark judgment made by the Supreme Court in 2007 in the criminal case of Samir A. Therefore, this cahier extensively examines how the recent lower court decisions apply the criteria outlined in that verdict from both an objective and subjective perspective.

Many publications on the topic of preparatory acts have become partially outdated due to the aforementioned legislative changes and the Samir A. case. This cahier aims to fill this gap by providing an up-to-date overview of the current state of criminalization concerning preparatory acts. As we commemorate twenty years since the submission of the bill that led to the controversial implementation of the current Article 46 in the Criminal Code, it is an opportune moment to reassess the situation. Furthermore, this publication presents a personal standpoint on the interpretation of Article 46, placing the legislator's intended rationale for this criminalization at the forefront. Ultimately, it concludes with an argument advocating for a moderately objective approach to preparatory acts.