PART THREE
ON SANCTIONS

Chapter 29 On the Determination of Punishment and Exemption from Sanction

Section 1

Punishments shall, with due regard to the need for consistency in sentencing, be determined within the scale of punishments according to the penal value of the crime or crimes taken.

In assessing the penal value, special consideration shall be given to the damage, wrong or danger occasioned by the criminal act, to what the accused realised or should have realised about this, and to the intentions or motives he may have had. (Law 1988:942)

Section 2

In assessing penal value, the following aggravating circumstances shall be given special consideration in addition to what is applicable to each and every type of crime :

1. whether the accused intended that the crime should have markedly more serious consequences than it in fact had,
2. whether the accused manifested especial ruthlessness,
3. whether the accused exploited some other person's vulnerable position or that person's special difficulties in protecting himself,
4. whether the accused grossly exploited his position or otherwise abused a special confidence or trust,
5. whether the accused induced another person to take part in the crime by coercion, deceit or misuse of that person's youthfulness, lack of understanding or dependent status, or
6. whether the crime was part of a criminal activity which was especially carefully planned or carried out on a large scale and in which the accused had a significant role, or
7. whether a motive for the crime was to aggrieve a person, ethnic group or some other similar group of people by reason of race, colour, national or ethnic origin, religious belief or other similar circumstance. (Law 1994:306)

Section 3

In assessing penal value, the following mitigating circumstances shall be given special consideration in addition to what is prescribed elsewhere, if, in a particular case :

1. the crime was occasioned by the grossly offensive behaviour of some other person,
2. the accused, in consequence of a mental disturbance or emotional excitement, or for some other cause, had a markedly diminished capacity to control his actions,
3. the actions of the accused were connected with his manifestly deficient development, experience or capacity for judgement,
4. the crime was occasioned by strong human compassion or
5. the act, without being free from criminal responsibility, was such as is covered by Chapter 24.

The sentence imposed may be less severe than that prescribed for the crime in question if this is called for having regard to the penal value of the crime. (Law 1994:458)

Section 4

In determining the appropriate punishment, the court, if sufficient consideration cannot be given to the circumstances through choice of sanction or forfeiture of conditionally granted liberty, shall, besides the penal value of the crime, take reasonable account of whether the accused has previously been guilty of crime. In this connection, special consideration shall be given to the extent of any previous criminality, to the time that has elapsed between the crimes, and to whether the previous and the new criminality are similar in nature or whether in both cases they are of an especially serious character.

Section 5

In determining the appropriate punishment, the court shall, besides the penal value of the crime, give reasonable consideration to :

1. whether the accused has suffered severe bodily harm as a result of the crime,
2. whether the accused to the best of his ability has attempted to prevent, remedy or limit the harmful consequences of the crime,
3. whether the accused gave himself up,
4. whether the accused would suffer harm through expulsion by reason of the crime from the Realm,
5. whether the accused, as a result of the crime, has suffered, or there is good reason to suppose that he will suffer, dismissal from, or termination of, employment, or will encounter any other obstacle or special difficulty in the pursuit of his occupation or business,
6. whether the accused, in consequence of advanced age or ill health, would suffer unreasonable hardship by a punishment imposed in accordance with the penal value of the crime,
7. whether, having regard to the nature of the crime, an unusually long time has elapsed since its commission or
8. whether there exists any other circumstance that calls for a lesser punishment than that warranted by the penal value of the crime.

If any circumstance covered by the first paragraph exists, the court may, if there are special grounds for so doing, impose a less severe punishment than that prescribed for the crime.

Section 6

If, in view of a circumstance described in Section 5 it is manifestly unreasonable to impose a sanction, the court shall grant exemption from sanction.

Section 7

If a person commits a crime before attaining the age of twenty-one, special consideration shall be given to his youth in determining the punishment. A milder punishment than that prescribed for the crime may be imposed in such cases. No person shall be sentenced to life imprisonment for a crime committed before attaining the age of twenty-one.

Article 76
Sentencing
1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence.
2. Except where article 65 applies and before the completion of the trial, the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence.
3. Where paragraph 2 applies, any representations under article 75 shall be heard during the further hearing referred to in paragraph 2 and, if necessary, during any additional hearing.
4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.

Article 78
Determination of the sentence
1. In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.
2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime.
3. When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b).