GENERAL PROVISIONS

CHAPTER VI
RELEASE FROM CRIMINAL LIABILITY

Article 39. Release from Criminal Liability on the Basis of Mitigating Circumstances

A person who commits a misdemeanour or a negligent crime may be released from criminal liability by a reasoned decision of a court where :

1) he commits the criminal act for the first time, and
2) there are at least two mitigating circumstances provided for in paragraph 1 of Article 59 of this Code, and
3) there are no aggravating circumstances.

GENERAL PROVISIONS

CHAPTER VIII
IMPOSITION OF A PENALTY

Article 59. Mitigating Circumstances

1. The following shall be considered as mitigating circumstances :

1) the offender has provided assistance to the victim or otherwise actively avoided or attempted to avoid more serious consequences ;
2) the offender has confessed to commission of an act provided for by a criminal law and sincerely regrets or has assisted in the detection of this act or identification of the persons who participated therein ;
3) the offender has voluntarily compensated for or eliminated the damage incurred ;
4) the criminal act has been committed due to a very difficult financial condition or desperate situation of the offender ;
5) the act has been committed as a result of mental or physical coercion, where such a coercion does not eliminate criminal liability ;
6) the commission of the act has been influenced by a provoking or venturesome behaviour of the victim ;
7) the act has been committed at the request of the victim, who is in a desperate situation ;
8) the act has been committed in violation of conditions of arrest of a person who has committed the criminal act, direct necessity, discharge of professional duty or performance of an assignment of law enforcement institutions, conditions of industrial or economic risk or lawfulness of a scientific experiment ;
9) the act has been committed by exceeding the limits of self-defence, where a criminal law provides for liability for exceeding the limits of self-defence ;
10) the act has been committed in a state of extreme agitation caused by unlawful actions of the victim ;
11) the act has been committed by a person of diminished legal capacity ;
12) the act has been committed by a person intoxicated by alcohol or drugs against his will ;
13) a voluntary attempt to renounce commission of the criminal act has been unsuccessful.

2. A court may also recognise as mitigating other circumstances which have not been indicated in paragraph 1 of this Article.

3. When imposing a penalty, a court shall not take into consideration a mitigating circumstance which is provided for in a law as constituting the body of a crime.

GENERAL PROVISIONS

CHAPTER VIII
IMPOSITION OF A PENALTY

Article 61. Imposition of a Penalty in the Presence of Mitigating and/or Aggravating Circumstances

1. When imposing a penalty, a court shall take into consideration whether only mitigating circumstances or only aggravating circumstances, or both mitigating and aggravating circumstances have been established and shall assess the relevance of each circumstance.

2. Having assessed mitigating and/or aggravating circumstances, the amount, nature and interrelation thereof, also other circumstances indicated in paragraph 2 of Article 54, a court shall make a reasoned choice of a more lenient or more severe type of a penalty as well as the measure of the penalty with reference to the average penalty.

3. The average penalty provided for by a law shall be determined as the aggregate of the minimum and maximum measure of a penalty provided for in the sanction of an article, which is subsequently divided by half. Where the sanction of the article prescribes no minimum measure of a penalty for a committed criminal act, the average penalty shall be determined on the basis of the minimum measure of a penalty fixed for that type of penalties.

4. Where the offender voluntarily confesses to commission of a crime, sincerely regrets it and actively assists in the detection of the crime as well as there are no aggravating circumstances, a court shall impose upon him a custodial sentence not exceeding the average penalty provided for in the sanction of an article for the committed crime or a non-custodial sentence.

5. A court may impose a custodial sentence not exceeding the average penalty provided for in the sanction of an article for the committed crime upon a person who participated in the commission of a premeditated murder, where he makes a confession regarding all the criminal acts committed by him and actively assists in the detection of the premeditated murder committed by members of an organised group or a criminal association.

6. Paragraph 5 of this Article shall not apply to the organiser or leader of a premeditated murder, organised group or criminal association.

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).