CHAPTER FIVE
THE RIGHT TO JUDICIAL AND OTHER LEGAL PROTECTION
Article 40
(6) The question whether an act is punishable or not shall be considered, and penalties shall be imposed, in accordance with the law in effect at the time the act was committed. A subsequent law shall be applied if it is more favorable for the offender.
PART ONE GENERAL
CHAPTER II CRIMINAL LIABILITY
Division 2 Culpability
Section 17 Culpability with Especially Aggravating Circumstances
Circumstances that condition application of a more severe sentence shall be taken into consideration,
a) if a more severe consequence is concerned, even if the offender caused it out of negligence, except for cases when the Criminal Code requires intentional culpability, or
b) if another fact is concerned, even if the offender was unaware of such a fact, although he/she could and should have been aware of it considering the circumstances and the personal relations, except for cases when criminal law requires that the offender was aware of such fact.
PART ONE GENERAL
CHAPTER V CRIMINAL PENALTIES
Division 1 Types of Criminal Penalties and General Principles Applying to their Imposition
Section 36 Types of Criminal Penalties
Criminal penalties are punishments and protective measures.
Section 37 General Provisions Applying to Imposition of Criminal Penalties
(1) Criminal penalties may only be imposed in accordance with the Criminal Code.
(2) An offender may not be sentenced to cruel or disproportionate criminal penalties. Human dignity may not be impaired by executing a criminal penalty.
Section 38 Proportionality of Criminal Penalties
(1) Criminal penalties shall be imposed with regard to the nature and gravity of the criminal offence committed and the personal situation of the offender.
(2) In cases where the imposition of a less severe criminal penalty to the offender will suffice, a more severe penalty may not be imposed.
(3) While imposing criminal penalties, the legally protected interests of parties injured by the criminal offence shall be taken into account.
1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence.
2. Except where article 65 applies and before the completion of the trial, the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence.
3. Where paragraph 2 applies, any representations under article 75 shall be heard during the further hearing referred to in paragraph 2 and, if necessary, during any additional hearing.
4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.