The General Part

Title III
Penalties

Chapter VI
Personalisation of penalties

Section 2
Legal and judicial aggravating and 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.

The General Part

Title III
Penalties

Chapter VI
Personalisation of penalties

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

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.

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 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.

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).