Criminal Intent (Dolo) and Mistake of Fact in Penal Law

Understanding Criminal Intent (Dolo)

Concept, Elements, and Types of Dolo

Concept of Criminal Intent

Criminal intent (dolo) is defined as the awareness and willingness to commit an act that constitutes the objective elements of a crime. If the intended result is not achieved due to factors beyond the subject's will, it may lead to consideration of responsibility for negligence (as defined in Item 5 of the original document) or attempted crime (cf. Item 11 of the original document).

Elements of Criminal Intent

• Intellect: Awareness of the factual elements of the crime.
• Volition: The will to commit the act.

Types of Criminal Intent

Depending on the intensity with which the intellectual and volitional elements appear, the following types of intent can be distinguished:

• Direct Intent (First Degree): The act committed perfectly aligns with the author's ultimate goal or deep desire.
• Indirect Direct Intent (Second Degree): The act committed does not directly match the author's primary desire, but it is accepted or used as a necessary means to achieve the desired effect.
• Eventual Intent (Conditional Intent): The subject foresees a high probability of the result occurring and, despite this, proceeds with the action, accepting its possible production. Eventual intent often borders on conscious recklessness and can be challenging to distinguish. Criteria for definition include the probability theory and the theory of will.

Mistake of Fact (Error de Tipo)

(Article 14.1 and 14.2 of the Spanish Penal Code)

Concept of Mistake of Fact

A mistake of fact occurs when there is ignorance regarding the presence of any of the factual elements that constitute a specific criminal offense.

This is distinct from a mistake regarding the wrongfulness of the act (error de prohibición), which is addressed in Article 14.3 of the Spanish Penal Code (vid. Item 8 of the original document).

Classes of Mistake of Fact

Mistake Regarding an Act Constituting the Offense

• Vincible Mistake

  Concept:

  A mistake that could have been avoided if the appropriate standards of care had been applied.

  Criminal Liability:

  The presence of a vincible mistake may lead to punishment for reckless behavior, but only if such reckless behavior is expressly defined as a crime (Article 12 of the Spanish Penal Code). If not, the act remains unpunished.

• Invincible Mistake

  Concept:

  A mistake that could not have been avoided, even if the appropriate standards of care had been applied.

  Criminal Liability:

  Acts committed under an invincible mistake of fact are unpunished.

Mistake on Qualifying Element or Aggravating Circumstance

• Criminal Liability:

  Such an error prevents the qualifying element or aggravating circumstance from being taken into consideration for criminal liability.

Other Subjective Elements of Unjust Acts

These are subjective components, distinct from criminal intent (dolo), that are present in certain specific crimes.