The General Part

Title III
Penalties

Chapter VI
Personalisation of penalties

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

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.

The General Part

Title III
Penalties

Chapter VI
Personalisation of penalties

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

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.

The General Part

Title III
Penalties

Chapter VI
Personalisation of penalties

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

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.

The General Part

Title III
Penalties

Chapter VI
Personalisation of penalties

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

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.

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).