BOOK I
General provisions on felonies and misdemeanours, the persons responsible, the penalties, security measures and other consequences of criminal offences

TITLE I
On felonies and misdemeanours

CHAPTER IV
On the circumstances that aggravate criminal accountability

Article 22

The following are aggravating circumstances

1. Perpetrating the act with premeditation.
There is premeditation when the convict commits any of the offences against persons using means or ways to do so that tend directly or especially to assure them, without risk to his person that might arise from defence by the victim.

2. Perpetrating the act using a disguise, abuse of superiority, or taking advantage of the circumstances of the place, time or aid from other persons that weaken the defence of the victim or facilitate impunity of the convict.

3. Perpetrating the act for a price, reward or promise.

4. Committing the offence for racist or anti-Semitic reasons, or another kind of discrimination related to ideology, religion or belief of the victim, ethnicity, race or nation to which he belongs, his gender, sexual orientation or identity, illness suffered or disability.

5. To deliberately and inhumanely increase victim’s suffering, causing unnecessary suffering while committing the crime.

6. Acting with abuse of confidence.

7. When the convict avails himself of his public status.

8. Having a criminal record.

There is recidivism when, when committing the crime, the convict has been sentenced by final judgement for a felony under the same category in this Code, as long as it is of the same nature.

For the purposes of this Section, a cancelled criminal record or one that should be cancelled shall not be counted.

BOOK I
General provisions on felonies and misdemeanours, the persons responsible, the penalties, security measures and other consequences of criminal offences

TITLE III
On penalties

CHAPTER II
On application of penalties

SUBCHAPTER 1. GENERAL RULES ON APPLICATION OF PENALTIES

Article 65

1. Aggravating or mitigating circumstances consisting of any cause of a personal nature shall only aggravate or mitigate the accountability of those fulfilling those circumstances.

2. Those that involve the material execution of the act, or the means used to perpetrate it, shall only be of use to aggravate or mitigate the accountability of those who have had knowledge of thereof at the moment of the action, or of their co-operation in the crime.

3. When the inducer or the necessary co-operator do not fulfil the conditions, qualities or personal relations that are the basis for the convict being guilty, the Judges or Courts of Law may impose a lower degree of punishment to that stated by Law for the crime concerned.

Article 66

1. In application of the punishment, in the case of malicious offences, the Judges or Courts of Law shall abide by the following rules, according to whether or not there are mitigating or aggravating circumstances :

1. When only one mitigating circumstance concurs, the lower half of the punishment the Law sets for the offence shall be applied.
2. When two or more mitigating circumstances concur, or one or several highly qualified ones, and there are no aggravating ones whatsoever, they shall apply the punishment that is lower by one or two degrees to that established by Law, in view of the number and entity of those mitigating circumstances.
3. When only one or two aggravating circumstances concur, they shall apply the punishment from the top half of that set by Law for the offence.
4. When there are more than two aggravating circumstances and no mitigating ones whatsoever, the higher degree of punishment to that established by Law, in its lower half, may be imposed.
5. When the aggravating circumstance of recidivism concurs, with the qualification that the offender was a convicted offender by final judgement at the time, of at least three felonies under the same title of this Code, as long as of the same nature, the higher degree of punishment to that foreseen by Law for the felony concerned may be applied, taking preceding convictions into account, as well as the severity of the new felony committed. For the purposes of this rule, criminal records that are cancelled, or that should be, shall not be taken into account.
6. When there are no mitigating or aggravating circumstances, the punishment established by Law for the offence committed shall be applied, to the extent deemed appropriate, in view of the personal circumstances of the criminal and to the greater or lesser severity of the fact.
7. When mitigating and aggravating circumstances concur, these shall be valued and compensated rationally to individualise the punishment. In the event of a qualified ground of attenuation persisting, the lower degree of punishment shall be applied. If a qualified ground of aggravation is maintained, the upper half of the punishment shall be applied.
8. When Judges or Courts of Law apply a punishment that is more than one degree lower, they may do so to its full extent.

2. In felonies involving negligence, the Judges or Courts of Law shall apply the penalties at their prudent discretion, without being subject to the rules set forth in the preceding Section.

Article 66 bis

In application of the penalties imposed on legal persons, the terms set forth in rules 1. to 4 and 6 to 8 of the First Section of Article 66 shall apply, as well as the following :

1. In the cases that are established by the provisions of Book II, to decide on imposition and the extent of the penalties foreseen under Sub-Sections b) to g) of Section 7 of Article 33, the following must be taken into account :

a) Their need to prevent continuity of the criminal activity or its effects ;
b) Their economic and social consequences, and especially the effects on workers ;
c) The post in the structure of the legal person held by the natural person or body that failed in its duty to control.

2. When the penalties foreseen under Sub-Sections c) to g) of Section 7 of Article 33 are imposed with a limited duration, the latter may not exceed the maximum term of a sentence of imprisonment foreseen in the event of the felony being committed by a natural person.

In order to impose the penalties foreseen in Sub-Sections c) to g) for a term exceeding two years it shall be necessary for any of the following two circumstances to concur :
a) For the legal person to be a repeat offender ;
b) For the legal person to be used instrumentally to commit criminal offences. The latter case shall be deemed to arise whenever the lawful activity of the legal person is less important than its unlawful activity.

For permanent imposition of the penalties foreseen in Sub-Sections b) and e), and to hand down a term exceeding five years of those foreseen in Sub-Sections e) and f) of Section 7 of Article 33, it shall be necessary for any of the following two circumstances to concur :

a) For it to be a case of fact foreseen under rule 5 of Section 1 of Article 66 ;
b) For the legal person to be used instrumentally to commit crimes. The latter case shall be deemed to arise whenever the lawful activity of the legal person is less important than its unlawful activity.

Article 67

The rules of the preceding Article shall not be applied to the aggravating or mitigating circumstances that the Law has taken into account in describing or penalising an offence, or those that are thus inherent to the offence, without concurrence of which it could not have been committed.

Article 68

In the cases foreseen in circumstance one of Article 21, the Judges or Courts of Law shall impose a lower punishment in one or two degrees to that stated in the Law, considering the number and entity of the requisites absent or concurring, and the personal circumstances of their principal, without prejudice to application of Article 66 of this Code.

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).