The General Part

Title III
Penalties

Chapter VI
Personalisation of penalties

Section 1
General provisions


General rules for penalty personalisation

Art.87 – (1) When establishing and applying penalties for natural persons, one shall take into account the provisions of the general part of this code, the penalty limits set forth by the special part, the seriousness of the act committed, the person of the perpetrator and the mitigating or aggravating circumstances.

(2) When, for the offence committed, the law provides alternative penalties, one shall take into account para.(1), both in choosing one of the alternative penalties, as well as in setting its proportional size.

(3) Penalties increased because of aggravating causes shall be executed in the treatment appropriate for the penalty provided in the law for the offence committed.

(4) When establishing and applying penalties for legal persons, one shall take into account the provisions of the general part of this code, the penalty limits set forth for natural persons by the special part, the seriousness of the act committed and the mitigating or aggravating circumstances.

(5) Aggravating and mitigating causes for the penalty, accepted by the court, must be motivated in the decision.


Section 2
Legal and judicial aggravating and mitigating circumstances Legal mitigating circumstances


Legal mitigating circumstances

Art.88 – The following situations shall be legal mitigating circumstances :

• a) commission of the offence during powerful confusion or emotion, determined by a
challenge of the person injured, caused either by violence, by a serious infringement of the person’s dignity or by other serious illicit actions ;
b) exceeding the limits of legitimate defense or state of necessity ;
c) commission of the act with a motive or a purpose that emphasizes the low degree of danger represented by the person of the perpetrator ;
d) if by a minimum infringement of one of the values defended by the law and by its concrete contents the act has a low degree of seriousness.

Legal aggravating circumstances

Art.89 – The following situations shall be legal aggravating circumstances :

• a) commission of the act by two or more persons together ;
b) commission of the offence by methods or means that represent a public danger ;
c) commission of the offence by an adult perpetrator, if it was committed together with a minor ;
d) commission of the offence for ignoble reasons ;
e) commission of the offence by a person who took advantage of the situation caused by calamity ;
f) commission of the offence against a person who is unable to defend him/herself or to express his/her will, against a minor under the age of 15 or against family members ;
g) commission of the offence in order to elude prosecution, arrest or execution of the penalty for oneself or for another ;
h) commission of the offence in order to facilitate or conceal the commission of an offence.

Judicial mitigating circumstances

Art.90 – (1) The following situations can be judicial mitigating circumstances :

• a) the perpetrator’s good conduct prior to committing the offence ;
b)consistence of the perpetrator in removing the result of the offence or repairing the damage caused ;
c) the perpetrator’s attitude after commission of the offence, emerging from his/her presentation before authorities, honest behaviour during the trial, facilitation of discovery or arrest of the participants.

(2) The circumstances enumerated in the present Article are examples.

Judicial aggravating circumstances

Art.91 – Any situation other than those enumerated in Art.89 that gives the act a serious nature can be an aggravating circumstance.

Effects of mitigating circumstances

Art.92 – (1) In case of mitigating circumstances the main penalty for natural persons shall be amended as follows :

• a) when, for the offence committed, the law provides life detention, severe detention shall be applied ;
b) when, for the offence committed, the law provides severe detention, strict imprisonment shall be applied ;
c) when, for the offence committed, the law provides strict imprisonment, the penalty of imprisonment or that of community service or the fine in the form of days/ fine shall be applied ;
d) when, for the offence committed, the law provides imprisonment, community service or fine in the form of days/fine shall be applied ;
e) when, for the offence committed, the law provides only the fine in the form of days/fine, the penalty from 5 to 20 days shall be applied.

(2) When there are mitigating circumstances, the complementary penalty of deprivation of rights, provided in the law for the offence committed, can be removed, and in the case of legal persons the complementary penalty of dissolution or suspension of the activity or of one of the activities of the legal entity cannot be applied.

(3) Lowering the penalty under the legal limits is compulsory for legal mitigating circumstances and optional in the other cases.

Effects of aggravating circumstances

Art.93 – (1) In case of aggravating circumstances, for natural persons a penalty that can be increased by 5 years can be applied, within the limits of the immediately superior penalty, if the law does not provide otherwise.

(2) In case of application of the fine in the form of days/fine, an increase of no more than a third of the special maximum may be applied while not exceeding the general maximum.

(3) When there are aggravating circumstances, for legal entities the penalty of the fine shall be applied up to the special maximum in Art.80 para.(2) or (3), which may be increased by one third.

Concurrence between aggravating and mitigating circumstances

Art.94 – (1) In case of concurrence of aggravating and mitigating circumstances, the court shall apply Art.92 or 93, depending on whether the mitigating or the aggravating circumstances are dominant. When mitigating circumstances are dominant, the aggravating circumstances shall be ignored, and if aggravating circumstances are dominant, the mitigating circumstances shall be ignored.

(2) In case of equivalence of these circumstances, a penalty shall be applied ignoring the aggravating or mitigating circumstances.

The General Part

Title III
Penalties

Chapter VI
Personalisation of penalties

Section 7
Penalty calculation


Length of execution

Art.110 - (1) The length of execution for penalties of detention shall be established beginning with the day when the convict began execution of the final decision of conviction.

(2) The day when the penalty execution commences and the day it ceases shall be calculated as part of the length of execution.

(3) The time in which the convict, during penalty execution, is ill in a hospital, shall be considered a part of the length of execution, except for cases when the illness is deliberately self-inflicted, and this circumstance is found during the penalty execution.

Calculating detainment and preventive arrest

Art.111- (1) The time spent in detainment and preventive arrest shall be deducted from the duration of the penalty pronounced. Deduction shall be done also when the convict has been prosecuted or tried, at the same time or separately, for several concurrent offences, even if he/she was removed from prosecution, if the criminal prosecution has ended or he/ she was acquitted or the criminal trial for the act that determined the detainment or preventive arrest has concluded.

Calculation of detention executed outside the country

Art.112 – For offences committed according to Art.11, 12 or 13, the part of the penalty, as well as the detainment or preventive arrest executed outside the country shall be deducted from the duration of the penalty applied for the same penalty by Romanian courts.

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).