Sobre la accesoriedad de la participación en los casos de tendencia interna trascendente

Abstract

In summary of the subsequent statements, the following five observations can be made in any case: – If perpetrator and participant differ in terms of personal characteristics, this difference will never lead to an adjustment of the elements of the offence, but to an adjustment in the range of punishment at most. – If perpetrator and participant differ in terms of act-related characteristics, this difference will under no circumstances result in an adjustment of the elements of the offence to the detriment of the participant, but—if at all—only for his benefit. – Both guiding principles mentioned above apply for elements that establish punishment as well as for elements that modify or exclude punishment. – Personal characteristics in terms of the first guiding principle above take account of the special need for prevention with regard to the perpetrator or participant who features those characteristics. In contrast, act-related characteristics in terms of the second guiding principle above refer to the wrong of the result or the action. Therefore, such characteristics refer to the scope of the injury of legal interests objectively caused or subjectively encompassed by the actor’s intent. –Personal and act-related characteristics retain their specific nature, independent of whether they are part of the objective elements of the offence or constitute extended mental elements within the mental elements of the offence.