PART ONE
GENERAL PART

CHAPTER TWO
SANCTIONS

Title Two
General Sentencing Guidelines

Section 34
Guidelines for Imposition of Penalties

(1) A penalty serves the purpose of protecting the society from the perpetrator of crime by preventing him from continuing to commit crime, and creating conditions for his re-education with a view to making him lead a regular life and, at the same time, discouraging other persons from committing crime; moreover, a penalty expresses moral condemnation of the offender by the society.

(2) An offender may be imposed only the type and degree of penalty that is provided for in this Act ; a Special Part of this Act sets out the sentencing guidelines governing exclusively a custodial sentence.

(3) A penalty is intended to punish only the offender, so as to minimise the impact on the offender's family and his close persons.

(4) A court determines the type and the degree of penalty in particular on the basis of the mode of the commission of crime and its consequence, culpability, motive, aggravating circumstances, mitigating circumstances, the person of the offender, his personal situation and rehabilitation potential.

(5) In determining the type and amount of punishment, the court shall consider

a) in the case of accomplices, also the extent, to which the actions performed by each of them have contributed to the commission of the criminal offence,
b) in the case of an organiser, a person who commissioned the criminal offence, an instigator, and an abettor, also the importance and character of their participation in the commission of the criminal offence,
c) with regard to the preparation for a felony and the attempted criminal offence, also the extent, to which the actions performed by the offender have brought the criminal offence nearer to its completion as well as the circumstances and reasons for its non-completion.

(6) The penalties referred to in Section 32 may be imposed separately or concurrently. The court shall have to impose a custodial sentence for every criminal offence which, according to the Special Part of this Act, carries a maximum custodial penalty of at least five years.

(7) The following penalties may not be imposed concurrently :

a) imprisonment and home arrest,
b) imprisonment and community service work,
c) pecuniary penalty and forfeiture of property,
d) forfeiture of a thing and forfeiture of property,
e) prohibition of residence and expulsion

(8) When the court delivers a life sentence, it may also decide not to grant the possibility of parole to the offender who

a) committed two or more particularly serious felonies,
b) met two or more parallel conditions warranting the application of a higher sentencing rate,
c) committed the criminal offence as a member of a criminal group or a terrorist group, or
d) was already punished for committing the criminal offence referred to in Section 47 paragraph 2.

PART ONE
GENERAL PART

CHAPTER TWO
SANCTIONS

Title Two
General Sentencing Guidelines

Mitigating and aggravating circumstances

Section 36

A mitigating circumstances shall be as follows :

a) the offender has committed the criminal offence in a state of justified emotional distress,
b) the offender has committed the criminal offence because of the lack of knowledge or experience,
c) the offender has committed the criminal offence due to the consequences of an illness,
d) the offender has committed the criminal offence at an age close to that of juveniles or as an elderly person, if this fact had an influence on his mental or volitional ability,
e) the offender has committed the criminal offence under the pressure of dependency or subordination,
f) the offender has committed the criminal offence under threat or duress,
g) the offender has committed the criminal offence due to an emergency that he did not bring about himself,
h) the offender has committed the criminal offence under the influence of a stressful personal or family situation, which he did not cause himself,
i) the offender has committed the criminal offence trying to avert an attack or other danger, or acting under the circumstances which, subject to the fulfilment of other conditions, exclude criminal liability without, however, fully meeting the requirements of necessary self-defence, extreme necessity, exercising the rights or performing the duties or the consent of the injured party, authorised use of a weapon, permissible risk, or acting as an agent,
j) the offender had led a regular life before he committed the criminal offence,
k) the offender contributed to the elimination of adverse effects of the criminal offence, or voluntarily offered compensation for inflicted damage,
l) the offender confessed to having committed the criminal offence, and showed signs of effective repentance,
m) the offender reported his criminal offence to the competent authorities,
n) the offender co-operated with the competent bodies in the investigation of his criminal activities, or
o) the offender contributed to identifying or convicting an organised group, a criminal group, or a terrorist group.

PART ONE
GENERAL PART

CHAPTER TWO
SANCTIONS

Title Two
General Sentencing Guidelines

Mitigating and aggravating circumstances

Section 38

(1) The circumstance that constitutes the statutory element of a criminal offence may not be considered as a mitigating circumstance, an aggravating circumstance, the circumstance warranting a lower than minimum statutory penalty, or the circumstance warranting a higher penalty.

(2) When determining the type and degree of penalty, the court shall have to take account of the relative weight and importance of mitigating and aggravating circumstances.

(3) If the weight of mitigating circumstances prevails, maximum statutory penalty shall be reduced by one third.

(4) If the weight of aggravating circumstances prevails, minimum statutory penalty shall be increased by one third.

(5) In case of a repeated felony, the statutory minimum penalty shall be increased by one half ; and the provision of paragraph 4 shall not apply.

(6) In case of repeated commission of a particularly serious felony, the minimum statutory penalty shall be increased by two thirds; and the provisions of paragraphs 4 and 5 shall not apply.

(7) The provisions of paragraphs 4 through 6 shall not apply in case of concurrent sentences or cumulative sentences pursuant to Section 41 paragraph 2 or Section 42 if the parallel application of these provisions were inappropriately harsh on the offender.

(8) Maximum penalty shall be reduced or minimum penalty shall be increased in cases defined in paragraphs 3 through 6 only within the applicable statutory penalty range ; the basis for reducing or increasing the penalty shall be the difference between the maximum and the minimum statutory penalty. Maximum statutory penalty may not be reduced, nor may minimum statutory penalty be increased in case of criminal offences which, according to the Special Part of this Act, carry a custodial penalty of twenty-five years or life imprisonment.

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.