GENERAL PART

Chapter VIII
SPECIFYING PUNISHMENTS

Article 75. General Criteria for Specifying Punishment

(1) An equitable punishment within the limits set by the Special Part of this Code and in strict compliance with the provisions of the General Part of this Code shall be applied to a person found guilty of the commission of a crime. When determining the category and the term of punishment, the court shall take into consideration the seriousness of the crime committed, its motive, the personality of the guilty person, the circumstances of the case that mitigate or aggravate liability, the impact of the punishment on the rehabilitation and re-education of the guilty person, as well as the living conditions of his/her family.

(2) The more severe punishment among the alternatives provided for by law for the commission of a crime shall be applied only when a milder punishment among the specified ones cannot ensure the achievement of the purpose of the punishment.

(3) Punishment for a minor or less serious crime shall be applied to a juvenile when it is assessed that educational measures are not sufficient for that juvenile's rehabilitation .

GENERAL PART

Chapter VIII
SPECIFYING PUNISHMENTS

Article 76. Mitigating Circumstances

(1) When determining a punishment, the following shall be considered as mitigating circumstances :

a) commission for the first time of a minor or a less serious crime ;
b) commission of a crime by a juvenile ;
c) commission of a crime due to difficult personal or family circumstances ;
d) commission of a crime by a person with limited mental capacity ;
e) prevention by the guilty person of prejudicial consequences of the crime committed, voluntary repair of the damage caused, or the elimination of the damage caused ;
f) self-denunciation, active contribution to solving the crime and to identifying the criminals, or admitting guilt ;
g) the illegality or immorality of the victim's actions if such were the reason for the crime ;
h) the commission of a crime as a result of physical or mental coercion that does not exclude the criminal nature of the act, or of financial or work dependence or other natural coercion ;
i) the commission of a crime by a person in a state of intoxication caused by the involuntary or forced consumption of substances mentioned in article 24, or by the consumption of these substances not being aware of their effects ;
j) the commission of a crime in excess of the legal limits of legitimate defense, capturing a criminal, a state of extreme necessity, reasonable risk or as a result of executing an order or command from a superior ;
k) the serious impact of the crime committed on its perpetrator or the heavy burden of the punishment applied to him/her due to his/her advanced age, health condition, or other circumstances ;
1) expiry at the moment of the commission of the crime of at least 2/3 of the criminal liability limitation period provided for this crime or excess of the reasonable timeframe for hearing the case, considering the nature of the act, provided that the delay was not caused by the perpetrator.

(2) The court may consider other circumstances not specified in par. (1) as mitigating circumstances.

(3) By determining the punishment, the court shall not consider as mitigating a circumstance defined by law as a constitutive element of the crime.

GENERAL PART

Chapter VIII
SPECIFYING PUNISHMENTS

Article 77. Aggravating Circumstances

(1) When determining punishment, the following shall be considered as aggravating circumstances :

a) the commission of a crime by a person who previously was convicted for a similar crime or of other acts relevant to the case ;
b) severe consequences caused by the commission of the crime ;
c) the commission of a crime with any form of participation ;
d) the commission of a crime due to social, national, racial, or religious hatred ;
e) the commission of a crime against a person known to be under 14 years of age or against a pregnant woman or by taking advantage of the victim's known or obvious helpless condition caused by advanced age, disease, physical or mental handicap, or another factor ;
f) the commission of a crime against a person in connection with his/her professional or social duties ;
g) the commission of a crime using juveniles, persons in difficulty, mentally retarded persons, or persons dependent on the perpetrator ;
h) the commission of a crime through extremely cruel acts or humiliation of the victim ;
i) the commission of a crime by means that pose a great social danger ;
j) the commission of a crime by a person in a state of intoxication caused by the consumption of substances mentioned in article 24: the court has the right, depending upon the nature of the crime, not to consider this as an aggravating circumstance ;
k) the commission of crime with the use of weapons, ammunition, explosive substances, or similar devices, specially prepared technical devices, noxious and radioactive substances, medical and other chemical/pharmaceutical preparations, and the use of physical and mental coercion ;
[Letter I) excluded by Law No. 277-XVI dated 18.12.2008, in force as of 24.05.2009]
m) the commission of a crime by taking advantage of a state of emergency, natural calamities, and mass disorders ;
n) the commission of a crime by abusing someone's trust.

(2) If the circumstances mentioned in par. (1) are also set forth in the corresponding articles of the Special Part of the this Code as evidence of these criminal components, they may not be concurrently considered as aggravating circumstances.

GENERAL PART

Chapter VIII
SPECIFYING PUNISHMENTS

Article 78. Effects of Mitigating and Aggravating Circumstances

(1) If the court ascertains the presence of mitigating circumstances in the commission of a crime, the main punishment shall be reduced or changed as follows :

a) if the minimum term of imprisonment set in the corresponding article of the Special Part of this Code is less than 10 years, the punishment may be reduced to this minimum ;
b) when a fine is applied, it may be reduced to its lowest limit ;
c) if the law specifies life imprisonment for the crime committed, it shall be substituted by imprisonment for 15 to 25 years.

(2) If the court ascertains the presence of mitigating circumstances in the commission of a crime, the complementary punishment provided by the law for the crime may be eliminated.

(3) In the case of aggravating circumstances, the maximum punishment set in the corresponding article of the Special Part of this Code may be applied.

(4) In the case of a concurrence of aggravating and mitigating circumstances, the reduction of the punishment to the minimum or its increase to the maximum set in the corresponding article of the Special Part of this Code shall not be mandatory.

(5) Where exceptional mitigating circumstances exist, the punishment may be applied according to the provisions of article 79.

GENERAL PART

Chapter VIII
SPECIFYING PUNISHMENTS

Article 82. Application of Punishment for Recidivism

(1) The punishment for recidivism, dangerous recidivism, and extremely dangerous recidivism shall be applied with due consideration of the number, nature, seriousness, and consequences of previously committed crimes, the circumstances due to which previous punishment was insufficient for the rehabilitation of the guilty person, as well as the nature, seriousness, and consequences of the new crime.

(2) The punishment for recidivism may not be less than half, for serious recidivism it shall be at least two thirds and for extremely serious recidivism at least three fourths of the maximum term of the most severe punishment set by the corresponding article of the Special Part of this Code.

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).