Consummation, a fundamental concept in Criminal Law, defines the exact moment when an agent's conduct fulfills all the constituent elements of the incriminating type, allowing for the full subsumption of the fact to the norm. Its primary purpose is to delineate the boundary between an attempt and a completed criminal offense, establishing parameters for sentencing and assessing the effectiveness of punitive judicial protection.
Concept and Foundation
In the Brazilian legal system, consummation is the final stage of the iter criminis. Legally, it occurs when the agent performs all the elements described in the penal type (formal-objective theory). The Brazilian Penal Code adopts the theory of result, but with nuances that vary according to the nature of the offense, distinguishing between material, formal, and conduct crimes.
The legal nature of consummation is that of a marker for typical effectiveness. While an attempt (Art. 14, II, CP) constitutes an extension of punishability, consummation represents the exhaustion of the type. Classical doctrine, led by Nelson Hungria and Damásio de Jesus, teaches that a crime is consummated when the agent achieves the intended legal result or when the conduct reaches the entirety of the legal description.
Historical Origin and Evolution
The institute dates back to Roman Law, influenced by the distinction between conatus (attempt) and delictum perfectum. The historical evolution in Brazilian Law followed the transition from the 1890 Penal Code to the 1940 statute, consolidating the need for an objective criterion to remove subjectivity from punishment. In Comparative Law, the Germanic tradition (Vollendung) influenced national dogmatics by emphasizing the need for injury or the risk of injury to the protected legal interest as a benchmark for consummation.
Legal Provision
The normative basis for consummation is found in Article 14, item I, of Decree-Law No. 2.848/1940 (Penal Code), which establishes that a crime is consummated "when all the elements of its legal definition are met." The interpretation of this provision must be combined with the theory of legal interest, a pillar of modern Criminal Law.
Practical Application and Jurisprudence
The jurisprudence of the Superior Courts (STF and STJ) has consolidated fundamental theses on consummation, notably:
- Crimes against Property (Robbery and Theft): The theory of apprehensio or amotio is adopted. The STJ, through Precedent 582, established that in robbery, consummation occurs with the inversion of possession of the asset, even for a brief period and without the agent having peaceful and undisturbed possession.
- Formal Crimes: Consummation occurs with the practice of the described conduct, regardless of the occurrence of a naturalistic result (e.g., extortion, according to STJ Precedent 96).
- Crimes against Public Administration: Passive corruption, for example, is a formal crime, consummated with the solicitation of the undue advantage.
Related Principles and Doctrinal Divergences
The main doctrinal divergence lies in the distinction between consummation and "exhaustion" (exaurimento). Exhaustion occurs after consummation, when the agent achieves the final intended objective (e.g., homicide is consummated with death; exhaustion would be the concealment of the corpse). Although exhaustion does not alter consummation, it is a preponderant factor for sentencing, according to Article 59 of the CP. Another point of debate is consummation in improper omission crimes, where the result must be avoided by the guarantor, shifting the temporal marker to the moment when the omission becomes legally relevant.
Contemporary Relevance
Currently, the discussion on consummation has expanded to Economic and Cyber Criminal Law. In transnational and digital offenses, the determination of the "place of the crime" and the "time of the crime" (Art. 4 of the CP - Theory of Activity) is inseparable from the definition of consummation. The speed of consummation in virtual environment crimes challenges classical doctrine, requiring a reinterpretation of the moment of injury to the legal interest in automated systems.
Legal and Jurisprudential References
- BRAZIL. Decree-Law No. 2.848, of December 7, 1940. Penal Code. Art. 14, I.
- BRAZIL. Superior Court of Justice. Precedent No. 96: "The crime of extortion is consummated regardless of obtaining the undue advantage".
- BRAZIL. Superior Court of Justice. Precedent No. 582: "The crime of robbery is consummated with the inversion of possession of the asset through the use of violence or serious threat, even for a short time and following immediate pursuit".
- HUNGRIA, Nelson. Comments on the Penal Code. Rio de Janeiro: Forense.
- JESUS, Damásio de. Criminal Law: General Part. São Paulo: Saraiva.
