BOOK I
GENERAL PART

TITLE III
CIRCUMSTANCES

SINGLE CHAPTER
GENERAL RULES

Article 51. Determination of the measure of penalty

1. Measure of penalty is determined according to the perpetrator's guilt and prevention requirements, within limits defined by law.

2. In determining a specific penalty, the court shall consider all circumstances that are not part of the defined crime but that either aggravate or mitigate the perpetrator's acts.

3. The court ruling shall explicitly mention the grounds for the measure of penalty adopted.

Article 52. General aggravating circumstances

1. General circumstances aggravating the responsibility of the perpetrator are all those prior to, during or after the fact that, although not part of the legal description of the act, yet reveal a higher degree of unlawfulness of the act, conduct or guilt of the perpetrator, thus increasing the need for punishment.

2. General aggravating circumstances may include the following :
a) The crime is committed with disloyalty, as occurs in cases of betrayal, ambush, waiting or disguise
b) The crime is committed against persons using means or ways that directly or indirectly seek to ensure execution without the danger that could result from possible defense of the victim.
c) The crime is committed by fraud, deceit, abuse of power or authority, or by taking advantage of circumstances of place and time.
d) The crime is committed for payment or to receive a sum or reward.
e) The crime is motivated by racism, or any other discriminatory sentiment on grounds of gender, ideology, religion or beliefs, ethnicity, nationality, sex, sexual orientation, illness or physical disability of the victim.
f) The perpetrator has the special duty to not commit the crime, to hinder its commission or to take action to punish the same, or takes advantage, for commission of the crime, of public authority that the same holds or invokes.
g) Not being a case of recurrence, the perpetrator has committed one or more crimes of a similar nature in the course of three years prior to the time the crime for which the same is being tried was committed, regardless of the time when judgment is rendered.
h) The crime is committed at the same time as another crime in order to facilitate the execution of one or more other crimes ;
i) Commission of the crime was facilitated by the perpetrator's entrance or attempted entrance into the victim's residence or using poison, flooding, fire, explosion; sinking or damaging a vessel or using a weapon ;
j) The commission of the crime or the use of its consequences having been facilitated by cooperation of two or more persons ;
k) The perpetrator intentionally and inhumanely increases the victim's suffering, causing the latter unnecessary suffering for consummation of the crime, or any other acts of theft, cruelty or destruction also unnecessary for commission of the crime.
l) The victim is or was a spouse or is in a de-facto relationship identical thereto, or is a parent or descendant, sibling, adoptee or adopter of the perpetrator.
m) The victim is particularly vulnerable by reason of age, illness or physical or mental disability, whenever said circumstance is not part of the definition of the crime itself .

Article 53. Recurrence

1. Any person who commits a crime of intent individually or under any form of joint participation that is punishable with effective imprisonment superior to 6 months, after having received final sentence of an effective penalty of imprisonment superior to 6 months due to a previous crime of intent, and it be found that, according to the circumstances of the case, the previous sentence or sentences have failed to serve as sufficient warning against crime to the perpetrator, the same shall be considered a repeat offender.

2. There is no recurrence if, between the commissions of one and the other crime, more than four years have elapsed, not considering the time that the perpetrator has been subject to a procedural measure, penalty or security measure involving deprivation of liberty.

3. In the event of recurrence, the minimum limit of the penalty applicable to the crime is increased by one-third and the maximum limit remains unchanged, however the aggravation cannot exceed the measure of the heaviest penalty applied in previous convictions.

Article 54. Habitual criminality

1. Whenever any person commits a crime of intent, and an actual prison sentence exceeding one year should be applied, and cumulatively, the following requirements are met :

a) The perpetrator has previously committed three or more crimes of intent and has been punished by effective imprisonment ;
b) Less than three years having elapsed between each of the crimes ;
c) Assessment of both the acts and personality of the perpetrator reveals a strong or dangerous tendency toward crime ;

The applicable penalty will be that for the crime committed with its minimum and maximum limits increased by one-third.

2. Provisions of this law shall prevail over any specific rules for punishing recurrence .


Article 55. General mitigating circumstances

1. Any circumstances that preceded, accompanied or occurred after commission of the crime and that reflect favorably on the perpetrator are considered general mitigating circumstances of the liability of the same.

2. General mitigating circumstances may include, inter alia, the following :

a) The causes of exclusion referred to in the previous chapter, whenever not all of the requirements provided are met for the cause for exclusion to produce effect.
b) The perpetrator acts in consequence of incidents that cause violent emotion, obsession or other emotional state of a similar passion, or reacts to provocation by means of an immediate act.
c) The perpetrator appears before the authorities voluntarily, before knowing of the existence of a criminal proceeding against him or her.
d) The perpetrator spontaneously confesses having committed the crime or decisively contributes to ascertaining the circumstances in which the criminal act occurred.
e) Presence of acts demonstrating sincere repentance of the perpetrator;
f) Low intensity of intent or negligence.
g) Reconciliation between victim and perpetrator.

Article 56. Extraordinarily mitigating circumstances

1. Apart from the cases expressly provided in the law, the penalty provided in the definition of the crime is extraordinarily mitigated, whenever any circumstances have arisen prior to, concurrently with or after commission of the crime that, jointly or individually, reduce, to a large extent, the unlawfulness of the perpetrator's conduct, guilt or need for penalty.

2. The following circumstances may, among others, be considered for the purpose of the previous subarticle :

a) The perpetrator's actions were influenced by a serious threat or orders from another person on whom the perpetrator is dependant or to whom obedience is due ;
b) The perpetrator's conduct was prompted by an honorable reason, by a strong solicitation or temptation from the victim him or herself or by unjust provocation or unwarranted offense ;
c) The perpetrator makes reparation of damage caused or diminishes its effects, at any time in the proceeding but before the date of the first trial hearing ;
d) The perpetrator has maintained good conduct long after the crime was committed ;
e) The perpetrator has a noticeably diminished criminal liability.

Article 57. Degrees of extraordinarily mitigating circumstances

1. Whenever special mitigation of the penalty occurs, it does so relatively to the limits of the applicable penalty :
a) The maximum limit of the penalty of imprisonment shall be reduced by one third ;
b) If the minimum limit of imprisonment is equal to or greater than three years, said limit shall be reduced to one-fifth and, to the minimum established by law if the minimum limit of imprisonment less than three years ;
c) The maximum limit of the penalty of fine shall be reduced by one third and the minimum limit reduced to the legal minimum ;
d) If the maximum limit of the penalty of imprisonment does not exceed 3 years, the penalty of imprisonment may be replaced by a penalty of fine within general limits.

2. An extraordinarily mitigated penalty that was specifically set may generally be replaced or even suspended.

Article 58. Concurrent circumstances

1. Any circumstances that alter the abstract scope of the definition of the crime shall result in application of the extraordinary mitigation provided for in the article above.

2. If two or more de facto circumstances occur that alter the abstract scope of the type of crime, only one shall be considered pursuant to provisions of the subarticle above, the remaining circumstances being considered as circumstances of a general nature when determining the penalty.

BOOK I
GENERAL PART

TITLE IV
LEGAL CONSEQUENCES OF CRIME

CHAPTER VII
DETERMINATION OF PENALTIES

Article 90. General principles

1. Whenever the law establishes a penalty, it refers to the crime in its consummated form.

2. The concrete extent of the penalty within the scope of the abstract penalty shall be determined in the following manner :

a) Any modifying aggravating circumstances of recurrence and habitual criminality, as described in articles 53 and 54, shall be applied to the abstract penalty corresponding to the consummated crime ;
b) Any extraordinarily mitigating circumstances shall be taken into consideration, in the absence of any modifying circumstances, if provisions in the previous paragraph have been met or based on the abstract penalty for the consummated crime.

Article 91. Determination of a specific penalty

1. Once the abstract scope of the penalty has been determined under the terms of the previous article, the court shall assess all circumstances that, not forming part of the legal definition itself nor having been weighed in light of the previous article, either aggravate or mitigate the liability of the convict.

2. Upon weighing these latter circumstances, the court shall determine the exact extent of the penalty deemed necessary to protect legal interests essential to life in society and to reintegrate the perpetrator into society within the limits established in the definition of the crime or resulting from application of the previous article.

3. Under no circumstance may the extent of the penalty applied to the convict exceed the limit befitting the guilt.

Article 92. Special case of the penalty of fine

In the event of the penalty of fine, the provisions of this chapter are applicable in determining the duration of the fine without prejudice to provisions in subarticle 75.2 for calculating the amount corresponding to each day of fine.

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 77
Applicable penalties
1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute:
(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
(b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
2. In addition to imprisonment, the Court may order:
(a) A fine under the criteria provided for in the Rules of Procedure and Evidence;
(b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.