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.
Sentencing - national proceedings
Determination of sentence - national proceedings
Aggravating factors - national proceedings
Mitigating factors - national proceedings
EDIT.