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