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 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).