Individualization of punishments. Chapter VIII. Individualization of punishments. Criminal Code of the Republic of Moldova
Excerpt from the Criminal Code of the Republic of Moldova
Title VIII. Individualization of punishments
Article 75. General criteria for individualizing punishment
(1) A person found guilty of committing a crime shall be sentenced to a fair punishment within the limits set forth in the Special Part of this Code and in strict accordance with the provisions of the General Part of this Code. When determining the category and term of punishment, the court shall take into account the gravity of the crime committed, its motive, the identity of the offender, the circumstances of the case that mitigate or aggravate liability, the influence of the punishment imposed on the correction and re-education of the offender, as well as the living conditions of his family.
(2) In the case of alternative punishments provided for the committed offense, the prison sentence is of an exceptional nature and is applied when the gravity of the offense and the personality of the offender make it necessary to apply the prison sentence, and another punishment is insufficient and would not achieve its purpose. A harsher punishment, from among the alternatives provided for the commission of the offense, is established only if a milder punishment, from among those mentioned, will not ensure the achievement of the purpose of the punishment. The exceptional nature of the application of the prison sentence is to be argued by the court.
(3) For the commission of a minor or less serious offense, the punishment is applied to the minor only if it is assessed that taking the educational measure is not sufficient to correct the minor.
Article 76. Mitigating Circumstances
(1) When determining the penalty, the following shall be considered mitigating circumstances:
a) the commission of a minor or less serious crime for the first time;
b) the commission of the crime by a minor or by a person who has reached the age of 18 but has not reached the age of 21;
c) the commission of the crime as a result of a combination of serious personal or family circumstances;
d) the commission of the act by a person with reduced responsibility;
e) prevention by the perpetrator of the harmful consequences of the committed crime, voluntary repair of the damage caused or removal of the damage caused;
f) self-denunciation, active contribution to the discovery of the crime or the identification of the criminals or admission of guilt;
g) illegality or immorality of the victim's actions, if they caused the crime;
h) commission of the crime as a result of physical or psychological coercion, which does not remove the criminal nature of the act, or given material, service or other dependence;
i) the commission of the crime by a person in a state of intoxication, caused by the involuntary or forced consumption of alcohol, drugs, precursors, ethnobotanicals or their substitutes or by the consumption of these substances without being aware of their effect;
j) the commission of the crime by exceeding the legal limits of legitimate defense, detention of the offender, state of extreme necessity, justified risk or as a result of the execution of the order or disposition of the superior;
k) the serious damage, by the committed crime, to the perpetrator of it or the weight of the burden of the punishment, applied to him, due to his advanced age, state of health or other circumstances;
l) the expiration, from the moment of the commission of the offense, of at least 2/3 of the limitation period for criminal liability, provided for this offense, or the exceeding of the reasonable term for examining the case, taking into account the nature of the act, if the delay was not caused by the perpetrator.
(2) The court may consider as mitigating circumstances other circumstances, not provided for in paragraph (1).
(3) When determining the punishment, the court shall not consider as mitigating the circumstance that is provided for by law as a constitutive element of the offense.
Article 77. Aggravating circumstances
(1) When determining the penalty, the following shall be considered aggravating circumstances:
a) the commission of the crime by a person who has previously been convicted of a similar crime or for other acts relevant to the case;
c) the commission of the crime through any form of participation;
d) the commission of the crime for reasons of prejudice;
e) the commission of the crime knowingly against a minor or a pregnant woman or taking advantage of the known or obvious helplessness of the victim, which is due to advanced age, illness, disability or other factor;
f) committing a crime against a person in connection with the performance by him of his official or public duties;
g) committing a crime through or in the presence of minors, persons in difficulty, mentally retarded persons or persons dependent on the perpetrator;
h) committing a crime through acts of particular cruelty or by mocking the victim;
i) committing a crime through means that pose an increased social danger;
j) committing a crime by a person in a state of intoxication, caused by the consumption of alcohol, drugs, precursors, ethnobotanicals or their substitutes. The court has the right, depending on the nature of the crime, not to consider this as an aggravating circumstance;
k) committing the crime with the use of weapons, ammunition, explosive materials or devices imitating them, specially prepared technical means, harmful and radioactive substances, medicinal preparations and other chemical-pharmacological preparations, as well as with the application of physical or psychological coercion;
m) committing the crime by taking advantage of the state of emergency, natural disasters, as well as mass disorders;
n) committing the crime by using the trust granted.
(2) If the circumstances mentioned in paragraph (1) are provided for in the corresponding articles of the Special Part of this Code as signs of these components of crimes, they cannot be simultaneously considered as aggravating circumstances.
Article 78. Effects of mitigating and aggravating circumstances
(1) If the court finds mitigating circumstances in the commission of the offense, the main punishment shall be reduced or changed as follows:
a) if the minimum imprisonment sentence provided for in the corresponding article of the Special Part of this Code is less than 10 years, the punishment may be reduced to this minimum;
b) if a fine is imposed, it may be reduced to the lower limit.
(2) If the court finds mitigating circumstances in the commission of the offense, the complementary punishment, provided for by law for the offense committed, may be removed.
(3) In the event of aggravating circumstances, the maximum penalty provided for in the relevant article of the Special Part of this Code may be applied.
(4) In the event of aggravating and mitigating circumstances, the reduction of the penalty to the minimum or its increase to the maximum provided for in the relevant article of the Special Part of this Code is not mandatory.
(5) If there are exceptional mitigating circumstances, the penalty may be applied in accordance with the provisions of art.79.
Article 79. Application of a more lenient punishment than that provided for by law
(1) Taking into account the exceptional circumstances of the case, related to the purpose and motives of the act, the role of the perpetrator in committing the crime, his behavior during and after the crime, other circumstances that significantly reduce the gravity of the act and its consequences, as well as the active contribution of the participant in a group crime to its discovery, the court may apply a punishment below the minimum limit provided for by the criminal law for the respective crime, or a more lenient one, of another category, or may not apply the mandatory complementary punishment. The minor age of the person who committed the crime is considered an exceptional circumstance. The commission of the crime by persons who have reached the age of 18 but have not reached the age of 21 may be considered by the court as an exceptional circumstance.
(11) Both a mitigating circumstance and a combination of such circumstances related to the situations mentioned in paragraph (1) may be considered exceptional.
(3) In the case of conviction of adults for committing particularly serious crimes, the court may impose a penalty below the minimum limit provided for by the criminal law, but constituting at least two thirds of the minimum penalty provided for by this Code for the crime committed.
(4) The provisions of paragraph (1) shall not apply to adults in the case of the application of the penalty of life imprisonment, in the case of recidivism of crimes or the commission of crimes provided for in art. 1661 paragraphs (2)–(4).
Article 80. Application of the penalty in the event of the conclusion of the plea agreement and the cooperation agreement
(1) If the accused person concludes a plea agreement and the court accepts this agreement, the penalty limits provided for in the Special Part of this Code shall be reduced by one third.
(2) If the accused person concludes a cooperation agreement and the court accepts this agreement, the penalty limits provided for in the Special Part of this Code shall be reduced by two fifths. When determining the prison sentence, conditional suspension of the execution of the penalty or partial suspension of the execution of the penalty shall be applied, in the manner provided for by law.
(3) By way of derogation from paragraph (1), if the person charged with the commission of the offences provided for in art. 264 para. (2), (4), (6) and art. 2641 concludes a plea agreement, and the court accepts this agreement, the reduction referred to in para. (1) shall apply only to the maximum penalty limit provided for in the Special Part of this Code.
Article 801. Application of the penalty in the case of a trial based on evidence administered during the criminal investigation phase
(1) If the defendant has admitted committing the acts indicated in the indictment and has requested that the trial be conducted based on evidence administered during the criminal investigation phase, he shall benefit from a reduction by one-fourth of the penalty limits provided for in the Special Part of this Code in the case of a fine, unpaid community service or imprisonment.
(2) If the defendant has admitted committing the acts indicated in the indictment for the crimes provided for in art. 1811–182, 239–240, 2421, 2422, 256, art. 264 para. (2), (4), (6), art. 2641, 324–3351, 370 and requested that the judgment be made on the basis of the evidence administered during the criminal investigation phase, he benefits from a reduction of one-fourth only of the maximum penalty limit provided for in the Special Part of this Code in the case of a fine, unpaid community service or imprisonment.
Article 81. Application of punishment for an uncommitted crime
(1) When applying punishment for an uncommitted crime, the circumstances under which the crime was not completed shall be taken into account.
(2) The amount of punishment for preparation of a crime that does not constitute a recidivism may not exceed half of the maximum of the most severe punishment provided for in the corresponding article of the Special Part of this Code for a completed crime.
(3) The amount of punishment for an attempted crime that does not constitute a recidivism may not exceed three-quarters of the maximum of the most severe punishment provided for in the corresponding article of the Special Part of this Code for a completed crime.
(4) Life imprisonment shall not apply to preparation of a crime and attempted crime.
Article 82. Application of punishment for repeated offenses
(1) When applying punishment for repeated offenses, the number, nature, gravity and consequences of previously committed offenses, the circumstances by virtue of which the previous punishment was insufficient to correct the offender, as well as the nature, gravity and consequences of the new offense shall be taken into account.
(2) The amount of punishment for dangerous and especially dangerous recidivism may not be less than two-thirds of the maximum punishment provided for in the corresponding article of the Special Part of this Code. If only mitigating circumstances are established, the court may establish the punishment within the limits provided for the offense in the Special Part of this Code.
Article 83. Application of the penalty for participation
The organizer, instigator and accomplice of a crime, provided for by the criminal law, committed intentionally shall be punished with the penalty provided for by law for the perpetrator. When determining the penalty, the contribution of each person to the commission of the crime, as well as the provisions of art.75, shall be taken into account.
Article 84. Application of the penalty in the case of a concurrent offense
(1) If a person is declared guilty of committing two or more offenses without having been convicted for any of them, the court, pronouncing the penalty for each separate offense, establishes the final penalty for concurrent offenses by cumulating, in whole or in part, the penalties applied, but for a term not exceeding 25 years of imprisonment, and with regard to persons who have reached the age of 18 but have not reached the age of 21 – for a term not exceeding 20 years and with regard to minors – for a term not exceeding 12 years and 6 months. If the person is found guilty of committing two or more minor and/or less serious crimes, the final sentence may also be established by absorbing the lighter sentence into the more severe sentence.
(11) If a person is found guilty of committing two or more crimes without having been convicted of any of them, the court, when pronouncing the sentence, other than imprisonment, for each separate crime, establishes the final sentence for the concurrent crimes by cumulating, in whole or in part, the sentences applied, the final sentence being within the maximum sentences provided for in the General Part of this Code.
(2) Any of the complementary punishments provided for in the corresponding articles of the Special Part of this Code, which establish liability for the crimes of which the person was found guilty, may be added to the main punishment applied in the case of a concurrent offense. The final complementary punishment established by the total or partial accumulation of the complementary punishments applied may not exceed the term or maximum amount provided for in the General Part of this Code for this category of punishments.
(3) If for the concurrent offenses, main punishments of different categories are established, the cumulation of which is not provided for in Article 87, and the court does not find grounds for absorbing one punishment by another, they shall be executed independently.
(4) In accordance with the provisions of paragraphs (1)-(3), the sentence shall also be determined if, after the sentence has been pronounced, it is found that the convicted person is also guilty of committing another crime committed before the sentence was pronounced in the first case. In this case, the term of the sentence shall include the duration of the sentence executed, in whole or in part, on the basis of the first sentence.
(5) In the case of concurrent crimes, when a life sentence and one or more prison sentences or other categories of punishment have been determined, life imprisonment shall be applied as the final sentence.
Article 85. Application of the penalty in the case of a cumulation of sentences
(1) If, after the sentence has been pronounced, but before the full execution of the sentence, the convicted person has committed a new crime, the court shall add, in whole or in part, to the penalty imposed by the new sentence the unexecuted part of the penalty established by the previous sentence. In this case, the final penalty may not exceed a term of 30 years of imprisonment, and in respect of persons who have reached the age of 18 but have not reached the age of 21 – a term of 20 years and in respect of minors – a term of 15 years.
(11) If, after the sentence has been pronounced, but before the full execution of the sentence, the convicted person has committed a new crime, the court shall add, in whole or in part, to the sentence imposed by the new sentence the unexecuted part of the sentence established by the previous sentence. In this case, the final sentence, other than imprisonment, may not exceed 40,000 conventional units, 480 hours of unpaid community service, 20 years in the case of deprivation of the right to hold certain positions or to exercise a certain activity, 10 years in the case of deprivation of the right to drive means of transport and for an unlimited period in the case of deprivation of a legal person of the right to exercise a certain activity.
(2) The accumulation of complementary sentences in the case of accumulation of sentences shall be carried out under the conditions of art.84 paragraph (2).
(3) The final sentence in the case of a cumulation of sentences must be greater than the sentence established for the commission of a new offense and than the unexecuted part of the sentence pronounced by the previous sentence of the court.
(4) When cumulating sentences, if one of the sentences establishes the sentence of life imprisonment, the final sentence shall be life imprisonment.
Article 86. Application of the sentence in the case of the execution of the decision of a foreign state
(1) When executing the decision of a foreign state, the court shall replace the custodial sentence pronounced in the foreign state with a sentence provided for by its own criminal law for the same act, without aggravating the criminal situation of the convicted person established by the decision of the foreign state. If the law of the foreign state provides for a penalty lower than the minimum provided for in the domestic law, the court shall not be bound by this minimum and shall apply a penalty corresponding to the penalty imposed in the foreign state.
(2) Any part of the penalty imposed in the foreign state and any period of provisional detention served by the convicted person shall be deducted in full by the court decision on the recognition of the foreign state's decision.
(3) When executing the foreign state's decision on the application of a fine or the confiscation of a sum of money, the court shall establish its amount in national currency, applying the official exchange rate of the Moldovan leu valid at the time of the decision on the recognition of the foreign state's decision, without exceeding the maximum penalty set by the foreign state for such an act.
(4) Fines and confiscations of property resulting from the execution of decisions of a foreign state shall be the property of the Republic of Moldova, without prejudice to the rights of third states.
Article 87. Method of determining the term of the final sentence in the case of cumulation of different sentences
(1) When cumulating different main sentences applied in the case of a concurrent offense or a cumulation of sentences, one day of imprisonment corresponds to 4 hours of unpaid community service.
(2) The other sentences cumulated with imprisonment shall be executed independently.
Article 88. Calculation of the terms of punishment and calculation of preventive arrest
(1) The terms of deprivation of the right to hold certain positions or to exercise a certain activity and of imprisonment shall be calculated in days, months and years, and those of unpaid community service - in hours.
(2) When computing or accumulating the penalties mentioned in paragraph (1), with the exception of unpaid community service, as well as when replacing the penalty, their calculation in days is allowed.
(3) The time the person is under preventive arrest until the trial of the case shall be included in the term of imprisonment, calculating one day for one day, and in the term of unpaid community service - calculating one day of preventive arrest for 4 hours of unpaid community service.
(4) The duration of preventive arrest and the execution of the prison sentence, imposed by court decision, for the crime committed abroad shall be included in the term of the sentence, in the event of the person's extradition under the terms of the law, calculated one day for one day.
(5) For a convicted person who was under preventive arrest until the case was set for trial, upon the establishment of a fine, deprivation of the right to hold certain positions or to exercise a certain activity as the main punishment, the court, taking into account the term of being under preventive arrest, shall mitigate the established punishment or release him completely from its execution.
(6) The time during which the convicted person, during the execution of the punishment, undergoes hospital treatment shall be included in the duration of the punishment, except in the case where he caused his own illness, which was ascertained during the execution of the punishment. The duration of the execution of the punishment with unpaid community service shall not include the time during which the convicted person is absent from work.
