The Problem of the legally protected in the crime of conspiracy

In our Criminal Code conspiracy appears as a crime against public tranquility, and more specifically, against the public peace, that is, "assimilated in its harmfulness" to crimes of disorder (article 315 º CP) advocacy of crime ( article 316 º CP), an offense to the memory of the dead (article 318 º CP) and intermediary organs and tissues onerous (Article 318-A of the CP). In countries like Argentina, according to the original name used by the Criminal Code of 1921 (1), conspiracy appears as a crime against "public order". In this regard, it should pause to consider those two titles used by the aforementioned laws, to determine which is more appropriate to circumscribe what we seek to protect through the crime of conspiracy to commit a crime.

According to Soler is meant by public order "social peace and confidence in the peaceful development of certain civil proceedings" (2). For its part, takes the definition Fontan Balestra Public Order Molinari: "Public policy is the peace and tranquility that is the fact that individuals and collective individuals adjust their activity to the rules governing life in society" (3).

Nuñez conspiracy to affect the public peace by the anxiety produced by the existence of associations aimed at committing crimes (4). Argentine jurist Carlos Creus indicates that the formation of a conspiracy disturbs the public peace, not only because knowledge of its existence produces social unrest, but also because of the danger involved for the preservation of social order (5).

As noted above lines, both titles used by various laws are presented as containing equivalent concepts, which, however, in the opinion of Patricia S. Ziffer (6), would be better expressed by the idea of ​​tranquility that more fully reflects the appearance of group alarm is considered the foundation of the criminality of the conspiracy. This reference to the social alarm is also found in Gomez, who relates that "public order offenses are crimes that do not fall on any specific legal right, but they were suppressed, not because the unreal injure public order referred but, to produce its effect, which is the common alarm, attack the right to peace of mind that all citizens have (7).

But in truth, if it is to be able to determine the legally protected in the crime of conspiracy through the notion of public peace or public order, difficult to find what is to be protected by the criminal in examination, since, as will be noted both concepts put accent the "public nature of the impairment," then we wonder what will happen when the existence of the association becomes aware of the general society and therefore not affected?. As we noted, understood from the titles mentioned above implies the conspiracy to marginalize secret associations, which certainly occur in a vastly larger number, since, as is logical, the success of partnerships depends mainly on the failure to transcend, making it unlikely that our reality is this a conspiracy that seeks to hold their criminal activities, causing insecurity in the population. This course advertising is present in crimes such as rioting, advocacy of crime, among others, which, by the way, if you are located in our Penal Code in Title for Crimes against Public Peace.

According to another interpretation of the legal right, the "passing theory", present in the German doctrine, whose primary exponent is Rudolphi, "the conspiracy does not protect a legally autonomous, but the legally protected are the respective objects of protection of the special part. Otherwise, suppress meaningless when secret organizations have not committed any crime "(8). Thus, the function for this theory of the crime of conspiracy would be to prevent the danger that comes from these associations to the legal. We believe that only highlight the progress of the punishment, that is, the danger posed by the existence of the conspiracy to different legal interests of the public peace is not enough to explain the reason for the autonomy of the infringement, since where to begin execution of a specific crime, it could not justify a penalty for the crime of conspiracy.

Other positions point to argue that the legally protected interest in the crime of conspiracy is the proper exercise of the right of association, that is, it seeks to safeguard the proper exercise of a constitutional right whose abuse can be punished. However, analyzing this thesis, which is associated with criminal intent does not exceed the limits of the right to associate, but acts against this law (9).

In conclusion we state that determine the legally protected interest in the crime of conspiracy is a fairly complicated, and this problem is just a sample of the range of controversial situations presented by this type of crime, difficult to understand in fact a criminal law, therefore, we are confident not only that the reader will examine each of the theses, providing each of criticizing them, but not outright discard any of these positions taken by the doctrine. We agree with those who claim that we are facing a crime that has no legal right itself, but the offense of conspiracy protects the legal rights to protect other types of crime in the special part, sufficient endangerment of these, but not ruling out the likely involvement of the same.