The pre-intentional crime in the Cuban Penal Code. Imputation approaches and punitive consequences

Abstract

This article examines the configuration of the “more serious result than intended” offence in the 2022 Penal Code (Arts. 8.5 and 8.6), taking Judgment No. 1897/2016 of the Cuban Supreme Court as its starting point. The central aim is to propose legislative reforms which, through the analysis of the delimitation of the categories of attribution and the inconsistencies of the current framework, ensure compliance with the mens rea requirement and the principle of proportionality. The research adopts a dogmatic-analytical design, with a qualitative approach, based on a review of legislation, case law, and legal doctrine. The findings show that the current regulation of the “more serious result than intended” offence reproduces tensions that require correction: the facultative mitigation rule under Art. 8.6 PC leaves to judicial discretion what should operate automatically once negligence with respect to the more serious result has been established, while also generating punitive asymmetries vis-à-vis the ordinary negligent offence. On this basis, two de lege ferenda proposals are advanced: (1) a “corrected continuity model,” which—building on the existing framework—would make mitigation mandatory and prevent offences involving a more serious result than intended from being sanctioned less severely than ordinary negligence; or (2) a model that reformulates Art. 8.5 PC as a rule of attribution and repeals Art. 8.6 PC, thereby relocating the sanctioning consequences to the regime of ideal concurrence of offences. Both approaches aim to ensure punitive coherence, strengthen legal certainty, and preserve the guarantist core of criminal law.