General Part

Chapter IV
Punishment

Section 35. Punishment and Objective Thereof

(1) Punishment as provided for in the Criminal Law is a compulsory measure which a court, within the limits of this Law, adjudges on behalf of the State against persons guilty of the commission of a criminal offence or in the cases provided for by law, determined by a public prosecutor by drawing up an injunction regarding the punishment.

(2) The objective of punishment is :

1) to protect the public safety ;
2) to restore justice ;
3) to punish the offender for a committed criminal offence ;
4) to resocialize the punished person ;
5) to achieve that the convicted person and other persons comply with the law and refrain from committing criminal offences.

General Part

Chapter V
Determination of Punishment

Section 46. General Principles for Determination of Punishment

(1) A punishment shall be determined to the extent provided for the committed criminal offence by the sanction of the relevant Section of the Special Part of this Law, conforming to the provisions of the General Part of this Law.

(2) In determining the type of punishment, the character of and harm caused by the criminal offence committed, as well as the personality of the offender shall be taken into account.

(3) In determining the amount of punishment, the circumstances mitigating or aggravating the liability shall be taken into account.

(4) The punishment of deprivation of liberty for a criminal violation and a less serious crime shall be applied if the purpose of the punishment cannot be achieved by determining any of the types of lesser punishment provided for in the sanction of the relevant Section.

Section 47. Mitigating Circumstances

(1) The following circumstances shall be considered as circumstances mitigating the liability :

1) the perpetrator of the criminal offence has admitted his or her guilt, has freely confessed and has regretted the offence committed ;
2) the offender has actively furthered the disclosure and investigation of the criminal offence ;
3) the offender has voluntarily compensated the harm caused by the criminal offence to the victim or has eliminated the harm caused ;
4) the offender has facilitated the disclosure of a crime of another person ;
5) the criminal offence was committed as a result of unlawful or immoral behaviour of the victim ;
6) the criminal offence was committed exceeding the conditions regarding the necessary self-defence, extreme necessity, detention of the person committing the criminal offence, justifiable professional risk, the legality of the execution of a command and order ;
7) the criminal offence was committed by a person in a state of diminished mental capacity.

(2) In determining a punishment, circumstances which are not provided for in this Law and which are related to the criminal offence committed, may be considered as circumstances mitigating the liability.

(3) A circumstance, which is provided for in this Law as a constituent element of a criminal offence, may not be considered to be a mitigating circumstance.

Section 48. Aggravating Circumstances

(1) The following may be considered to be aggravating circumstances :

1) the criminal offence constitutes the actual aggregation of criminal offences or recidivism of criminal offences ;
2) the criminal offence was committed while in a group of persons ;
3) the criminal offence was committed, taking advantage in bad faith of an official position or the trust of another person ;
4) the criminal offence has caused serious consequences ;
5) the criminal offence was committed against a woman, knowing her to be pregnant ;
6) the criminal offence was committed against a person who has not attained fifteen years of age or against a person taking advantage of his or her helpless condition or of infirmity due to old-age ;
7) the criminal offence was committed against a person taking advantage of his or her official, financial or other dependence on the offender ;
8) the criminal offence was committed with particular cruelty or with humiliation of the victim ;
9) the criminal offence was committed taking advantage of the circumstances of a public disaster ;
10) the criminal offence was committed employing weapons or explosives, or in some other generally dangerous way ;
11) the criminal offence was committed out of a desire to acquire property ;
12) the criminal offence was committed under the influence of alcohol, narcotic, psychotropic, toxic or other intoxicating substances ,;
13) the person committing the criminal offence, for purposes of having his or her punishment reduced, has knowingly provided false information regarding a criminal offence committed by another person ;
14) the criminal offence was committed due to racist motives ;
15) the criminal offence related to violence or threats of violence was committed against a person to whom the perpetrator is related in the first or the second degree of kinship, against the spouse or former spouse, or against a person with whom the perpetrator is or has been in unregistered marital relationship, or against a person with whom the perpetrator has a joint (single) household.

(2) Taking into account the character of the criminal offence, may decide not to consider any of the circumstances mentioned in Paragraph one of this Section as aggravating.

(3) In determining punishment, such circumstances may not be considered as aggravating which are not set out in this Law.

(4) A circumstance which is provided for in this Law as a constituent element of a criminal offence shall not be considered an aggravating circumstance.

Section 49. Determination of a Lesser Punishment than the Punishment Provided for by Law

(1) If a court, taking into account various mitigating circumstances and the personality of the offender, considers it necessary to impose a punishment which is less than the minimum limit for the relevant criminal offence provided for by the Law, it may reduce the punishment accordingly, setting out the reasons for such adjudication in the judgment.

(1 1) In determining the punishment of deprivation of liberty, which is less than the minimum limit for the relevant criminal offence provided for by the Special Part of the Law, a person may not be adjudged less than :

1) half of the minimum punishment for committing a serious crime provided for in the sanction of the relevant Section ;
2) two thirds of the minimum punishment for committing an especially serious crime provided for in the sanction of the relevant Section.

(2) Taking into account the circumstances mitigating the liability and the personality of the offender, a court may determine a type of lesser punishment for the commission of such serious crime, for which deprivation of liberty for a term exceeding five years is provided for in this Law, and for the commission of an especially serious crime, if the crime has not resulted in death of a human being, has not caused serious bodily injuries or disorders of psychical nature to at least one person or less serious bodily injuries to several persons, is not related to violence or threat of violence, is not related to illegal handling of narcotic and psychotropic substances and has not been committed in an organised group.

(3) Paragraphs one and two of this Section are not applicable if the court has found that the criminal offence was committed in aggravating circumstances.

(4) [8 November 2007]

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.