When the court renders its final decision regarding the conviction or acquittal of the defendant, it must also determine the type and degree of the sentence. The process of adapting the type and severity of the punishment is known in legal theory as the individualization of the sentence. In this process, the court must consider several elements, the most important of which is the type and degree of punishment provided by the legal provision under which the defendant is charged. In any case, the sentence cannot fall outside the limits set by law, except when, for special reasons, the court may go below the statutory minimum.

The court also takes into account the circumstances in which the event occurred, as well as the personal circumstances of the offender at the time of committing the criminal act or at the time of sentencing. In the Penal Code, these are referred to as aggravating or mitigating circumstances. Aggravating circumstances are expressly listed in the law, and no other circumstance may be considered as such (in legal theory, there is debate as to whether aggravating circumstances constitute new charges, but this discussion falls outside the scope of this article). Their significance lies in the fact that they increase the severity of the sentence or exclude the application of alternative punishments. These are provided under Article 50 of the Penal Code.

Some aggravating circumstances include:

·        Committing the offense driven by base motives;

·        Committing the offense to hold another criminally liable, conceal another’s liability, or evade punishment for another offense;

·        Committing the crime with cruelty or brutality;

·        Committing the crime while under electronic surveillance;

·        Committing the crime by abusing public office or religious duty;

·        Committing the crime against children, pregnant women, or persons unable to defend themselves;

·        Committing the offense during or after the issuance of judicial protection orders against domestic violence;

·        Committing the offense against representatives of foreign states;

·        Committing the offense against elected officials or public servants because of their duties;

·        Committing the crime by exploiting family, cohabitation, friendship, or hospitality relationships;

·        Committing the offense in cooperation with others or on more than one occasion;

·        Committing the crime based on motives related to gender, race, color, ethnicity, language, gender identity, sexual orientation, political beliefs, etc.

In addition to aggravating circumstances, the law also provides for mitigating circumstances, which may result in a lighter sentence or allow for alternative punishments. Article 48 of the Penal Code provides:

Mitigating circumstances include:

·       When the act was committed under motives of positive moral or social value;

·        When the act was committed under the influence of psychological distress caused by provocation or unlawful acts of the victim or another person;

·       When the act was committed under the influence of unlawful actions or orders of a superior;

·       When the perpetrator shows deep remorse;

·        When the perpetrator has compensated for the damage caused by the offense or has actively helped to eliminate or reduce its consequences;

·       When the perpetrator voluntarily presents himself before the competent authorities after committing the crime;

·       When the relations between the perpetrator and the victim have been normalized.

In practice, defendants often seek to present mitigating circumstances before the court, such as: personal or family health reasons, educational commitments, specific family care responsibilities, or economic hardship. It is in the defendant’s interest to submit supporting documents such as family certificates proving dependent children, medical records, proof of disability benefits, unemployment certificates, or social assistance records, school enrollment certificates, or declarations showing reconciliation with the victim.

Since the number of mitigating circumstances is not limited, defendants may submit any written evidence that proves facts which might mitigate the severity of the punishment. However, such facts cannot merely be asserted orally in court; they must be supported by evidence, usually official documents issued by the competent authority.