BOOK I
GENERAL PART
TITLE III
CIRCUMSTANCES
SINGLE CHAPTER
GENERAL RULES
Article 51. Determination of the measure of penalty
1. Measure of penalty is determined according to the perpetrator's guilt and prevention requirements, within limits defined by law.
2. In determining a specific penalty, the court shall consider all circumstances that are not part of the defined crime but that either aggravate or mitigate the perpetrator's acts.
3. The court ruling shall explicitly mention the grounds for the measure of penalty adopted.
Article 52. General aggravating circumstances
1. General circumstances aggravating the responsibility of the perpetrator are all those prior to, during or after the fact that, although not part of the legal description of the act, yet reveal a higher degree of unlawfulness of the act, conduct or guilt of the perpetrator, thus increasing the need for punishment.
2. General aggravating circumstances may include the following :
a) The crime is committed with disloyalty, as occurs in cases of betrayal, ambush, waiting or disguise
b) The crime is committed against persons using means or ways that directly or indirectly seek to ensure execution without the danger that could result from possible defense of the victim.
c) The crime is committed by fraud, deceit, abuse of power or authority, or by taking advantage of circumstances of place and time.
d) The crime is committed for payment or to receive a sum or reward.
e) The crime is motivated by racism, or any other discriminatory sentiment on grounds of gender, ideology, religion or beliefs, ethnicity, nationality, sex, sexual orientation, illness or physical disability of the victim.
f) The perpetrator has the special duty to not commit the crime, to hinder its commission or to take action to punish the same, or takes advantage, for commission of the crime, of public authority that the same holds or invokes.
g) Not being a case of recurrence, the perpetrator has committed one or more crimes of a similar nature in the course of three years prior to the time the crime for which the same is being tried was committed, regardless of the time when judgment is rendered.
h) The crime is committed at the same time as another crime in order to facilitate the execution of one or more other crimes ;
i) Commission of the crime was facilitated by the perpetrator's entrance or attempted entrance into the victim's residence or using poison, flooding, fire, explosion; sinking or damaging a vessel or using a weapon ;
j) The commission of the crime or the use of its consequences having been facilitated by cooperation of two or more persons ;
k) The perpetrator intentionally and inhumanely increases the victim's suffering, causing the latter unnecessary suffering for consummation of the crime, or any other acts of theft, cruelty or destruction also unnecessary for commission of the crime.
l) The victim is or was a spouse or is in a de-facto relationship identical thereto, or is a parent or descendant, sibling, adoptee or adopter of the perpetrator.
m) The victim is particularly vulnerable by reason of age, illness or physical or mental disability, whenever said circumstance is not part of the definition of the crime itself .
Article 53. Recurrence
1. Any person who commits a crime of intent individually or under any form of joint participation that is punishable with effective imprisonment superior to 6 months, after having received final sentence of an effective penalty of imprisonment superior to 6 months due to a previous crime of intent, and it be found that, according to the circumstances of the case, the previous sentence or sentences have failed to serve as sufficient warning against crime to the perpetrator, the same shall be considered a repeat offender.
2. There is no recurrence if, between the commissions of one and the other crime, more than four years have elapsed, not considering the time that the perpetrator has been subject to a procedural measure, penalty or security measure involving deprivation of liberty.
3. In the event of recurrence, the minimum limit of the penalty applicable to the crime is increased by one-third and the maximum limit remains unchanged, however the aggravation cannot exceed the measure of the heaviest penalty applied in previous convictions.
Article 54. Habitual criminality
1. Whenever any person commits a crime of intent, and an actual prison sentence exceeding one year should be applied, and cumulatively, the following requirements are met :
a) The perpetrator has previously committed three or more crimes of intent and has been punished by effective imprisonment ;
b) Less than three years having elapsed between each of the crimes ;
c) Assessment of both the acts and personality of the perpetrator reveals a strong or dangerous tendency toward crime ;
The applicable penalty will be that for the crime committed with its minimum and maximum limits increased by one-third.
2. Provisions of this law shall prevail over any specific rules for punishing recurrence .
Article 55. General mitigating circumstances
1. Any circumstances that preceded, accompanied or occurred after commission of the crime and that reflect favorably on the perpetrator are considered general mitigating circumstances of the liability of the same.
2. General mitigating circumstances may include, inter alia, the following :
a) The causes of exclusion referred to in the previous chapter, whenever not all of the requirements provided are met for the cause for exclusion to produce effect.
b) The perpetrator acts in consequence of incidents that cause violent emotion, obsession or other emotional state of a similar passion, or reacts to provocation by means of an immediate act.
c) The perpetrator appears before the authorities voluntarily, before knowing of the existence of a criminal proceeding against him or her.
d) The perpetrator spontaneously confesses having committed the crime or decisively contributes to ascertaining the circumstances in which the criminal act occurred.
e) Presence of acts demonstrating sincere repentance of the perpetrator;
f) Low intensity of intent or negligence.
g) Reconciliation between victim and perpetrator.
Article 56. Extraordinarily mitigating circumstances
1. Apart from the cases expressly provided in the law, the penalty provided in the definition of the crime is extraordinarily mitigated, whenever any circumstances have arisen prior to, concurrently with or after commission of the crime that, jointly or individually, reduce, to a large extent, the unlawfulness of the perpetrator's conduct, guilt or need for penalty.
2. The following circumstances may, among others, be considered for the purpose of the previous subarticle :
a) The perpetrator's actions were influenced by a serious threat or orders from another person on whom the perpetrator is dependant or to whom obedience is due ;
b) The perpetrator's conduct was prompted by an honorable reason, by a strong solicitation or temptation from the victim him or herself or by unjust provocation or unwarranted offense ;
c) The perpetrator makes reparation of damage caused or diminishes its effects, at any time in the proceeding but before the date of the first trial hearing ;
d) The perpetrator has maintained good conduct long after the crime was committed ;
e) The perpetrator has a noticeably diminished criminal liability.
Article 57. Degrees of extraordinarily mitigating circumstances
1. Whenever special mitigation of the penalty occurs, it does so relatively to the limits of the applicable penalty :
a) The maximum limit of the penalty of imprisonment shall be reduced by one third ;
b) If the minimum limit of imprisonment is equal to or greater than three years, said limit shall be reduced to one-fifth and, to the minimum established by law if the minimum limit of imprisonment less than three years ;
c) The maximum limit of the penalty of fine shall be reduced by one third and the minimum limit reduced to the legal minimum ;
d) If the maximum limit of the penalty of imprisonment does not exceed 3 years, the penalty of imprisonment may be replaced by a penalty of fine within general limits.
2. An extraordinarily mitigated penalty that was specifically set may generally be replaced or even suspended.
Article 58. Concurrent circumstances
1. Any circumstances that alter the abstract scope of the definition of the crime shall result in application of the extraordinary mitigation provided for in the article above.
2. If two or more de facto circumstances occur that alter the abstract scope of the type of crime, only one shall be considered pursuant to provisions of the subarticle above, the remaining circumstances being considered as circumstances of a general nature when determining the penalty.
Sentencing - national proceedings
Determination of sentence - national proceedings
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