The General Part
Title III
Penalties
Chapter VI
Personalisation of penalties
Section 1
General provisions
General rules for penalty personalisation
Art.87 – (1) When establishing and applying penalties for natural persons, one shall take into account the provisions of the general part of this code, the penalty limits set forth by the special part, the seriousness of the act committed, the person of the perpetrator and the mitigating or aggravating circumstances.
(2) When, for the offence committed, the law provides alternative penalties, one shall take into account para.(1), both in choosing one of the alternative penalties, as well as in setting its proportional size.
(3) Penalties increased because of aggravating causes shall be executed in the treatment appropriate for the penalty provided in the law for the offence committed.
(4) When establishing and applying penalties for legal persons, one shall take into account the provisions of the general part of this code, the penalty limits set forth for natural persons by the special part, the seriousness of the act committed and the mitigating or aggravating circumstances.
(5) Aggravating and mitigating causes for the penalty, accepted by the court, must be motivated in the decision.
Section 2
Legal and judicial aggravating and mitigating circumstances Legal mitigating circumstances
Legal mitigating circumstances
Art.88 – The following situations shall be legal mitigating circumstances :
• a) commission of the offence during powerful confusion or emotion, determined by a
challenge of the person injured, caused either by violence, by a serious infringement of the person’s dignity or by other serious illicit actions ;
b) exceeding the limits of legitimate defense or state of necessity ;
c) commission of the act with a motive or a purpose that emphasizes the low degree of danger represented by the person of the perpetrator ;
d) if by a minimum infringement of one of the values defended by the law and by its concrete contents the act has a low degree of seriousness.
Legal aggravating circumstances
Art.89 – The following situations shall be legal aggravating circumstances :
• a) commission of the act by two or more persons together ;
b) commission of the offence by methods or means that represent a public danger ;
c) commission of the offence by an adult perpetrator, if it was committed together with a minor ;
d) commission of the offence for ignoble reasons ;
e) commission of the offence by a person who took advantage of the situation caused by calamity ;
f) commission of the offence against a person who is unable to defend him/herself or to express his/her will, against a minor under the age of 15 or against family members ;
g) commission of the offence in order to elude prosecution, arrest or execution of the penalty for oneself or for another ;
h) commission of the offence in order to facilitate or conceal the commission of an offence.
Judicial mitigating circumstances
Art.90 – (1) The following situations can be judicial mitigating circumstances :
• a) the perpetrator’s good conduct prior to committing the offence ;
b)consistence of the perpetrator in removing the result of the offence or repairing the damage caused ;
c) the perpetrator’s attitude after commission of the offence, emerging from his/her presentation before authorities, honest behaviour during the trial, facilitation of discovery or arrest of the participants.
(2) The circumstances enumerated in the present Article are examples.
Judicial aggravating circumstances
Art.91 – Any situation other than those enumerated in Art.89 that gives the act a serious nature can be an aggravating circumstance.
Effects of mitigating circumstances
Art.92 – (1) In case of mitigating circumstances the main penalty for natural persons shall be amended as follows :
• a) when, for the offence committed, the law provides life detention, severe detention shall be applied ;
b) when, for the offence committed, the law provides severe detention, strict imprisonment shall be applied ;
c) when, for the offence committed, the law provides strict imprisonment, the penalty of imprisonment or that of community service or the fine in the form of days/ fine shall be applied ;
d) when, for the offence committed, the law provides imprisonment, community service or fine in the form of days/fine shall be applied ;
e) when, for the offence committed, the law provides only the fine in the form of days/fine, the penalty from 5 to 20 days shall be applied.
(2) When there are mitigating circumstances, the complementary penalty of deprivation of rights, provided in the law for the offence committed, can be removed, and in the case of legal persons the complementary penalty of dissolution or suspension of the activity or of one of the activities of the legal entity cannot be applied.
(3) Lowering the penalty under the legal limits is compulsory for legal mitigating circumstances and optional in the other cases.
Effects of aggravating circumstances
Art.93 – (1) In case of aggravating circumstances, for natural persons a penalty that can be increased by 5 years can be applied, within the limits of the immediately superior penalty, if the law does not provide otherwise.
(2) In case of application of the fine in the form of days/fine, an increase of no more than a third of the special maximum may be applied while not exceeding the general maximum.
(3) When there are aggravating circumstances, for legal entities the penalty of the fine shall be applied up to the special maximum in Art.80 para.(2) or (3), which may be increased by one third.
Concurrence between aggravating and mitigating circumstances
Art.94 – (1) In case of concurrence of aggravating and mitigating circumstances, the court shall apply Art.92 or 93, depending on whether the mitigating or the aggravating circumstances are dominant. When mitigating circumstances are dominant, the aggravating circumstances shall be ignored, and if aggravating circumstances are dominant, the mitigating circumstances shall be ignored.
(2) In case of equivalence of these circumstances, a penalty shall be applied ignoring the aggravating or mitigating circumstances.
Sentencing - national proceedings
Determination of sentence - national proceedings
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