Post-Offense Behaviors, Mitigating & Aggravating Circumstances in Criminal Law
Post-Offense Behaviors
Confession and Reparation (Section 21.4 & 21.5)
The current regulation distinguishes between confession made before the accused is aware of legal proceedings (21.4) and reparation of the crime’s effects at any time during the procedure before the oral hearing (21.5).
This distinction is relevant in cases of reduced culpability. These can be configured objectively, applying if they occur before the accused is aware of legal proceedings or before the trial’s conclusion. Reparation of the crime’s effects concludes at the oral hearing.
Mitigating Circumstances (Section 21.6)
Section 21.6 (“any other circumstance of similar significance to the above”) allows for a lighter sentence in situations not explicitly covered but similar to those listed, offering a legal clause of analogy beneficial to the accused. Recent years have seen its application in cases of undue procedural delay through no fault of the prisoner.
Aggravating Circumstances
Aggravating circumstances generally increase the objective gravity of the crime or increase the reproach to the perpetrator, leading to a distinction between objective and subjective circumstances.
Objective vs. Subjective Circumstances
Objective circumstances relate to increased severity of the crime or ease of execution, regardless of the perpetrator’s culpability. The principle of proportionality between punishment and guilt justifies the increased penalty.
Subjective circumstances increase the reproach to the perpetrator for the act committed, reflecting a greater devaluation of the author, without objectively making the crime more serious.
General Classification
Objective Circumstances:
- Increased severity of harm (malice, 22.5)
- Ease of execution or facilitated impunity (treachery 22.1, abuse of superiority 22.2, price/reward/promise 22.3, breach of trust 22.6, reliance on public office 22.7)
Subjective Circumstances:
- Racist or discriminatory motives (22.4)
- Recidivism (22.8)
Specific Objective Circumstances
Cruelty involves intentionally increasing the victim’s suffering unnecessarily.
Treachery involves methods designed to ensure the crime’s success by nullifying the victim’s defense. This includes disguise and exploiting the victim’s vulnerability.
Abuse of Superiority includes exploiting circumstances of place, time, or assistance from others (e.g., nighttime, deserted location, gang). This also covers crimes committed during fires, shipwrecks, or disasters.
Crimes for Price, Reward, or Promise (22.3) applies to both the payer (inductor) and the perpetrator. However, its applicability to the inductor is debated.
Specific Subjective Circumstances
Racist or Discriminatory Motives (22.4) often coincide with other aggravating factors like cruelty or abuse of superiority.
Recidivism (22.8) refers to being sentenced for a prior offense within the same section of the Code, involving the same nature of crime, legal right, and mode of attack. Rule 66.1.5 allows for increased penalties for repeat offenders with three prior felony convictions within the same section.
Mixed Circumstances (Article 23Cp)
Article 23Cp addresses the relationship between the perpetrator and the victim, which can either mitigate or aggravate liability depending on the crime’s nature, motives, and effects. Jurisprudence tends to consider the relationship aggravating in crimes against persons and mitigating in property crimes. The relationship need not involve a maintenance bond, and it may have no effect on the sentence.
The death of a family member falls under homicide with circumstances of kinship, potentially mitigating in some cases (e.g., euthanasia).