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Conditions Of Liability To Punishment In Respect Of Crimes

TITLE III CONDITIONS OF LIABILITY TO PUNISHMENT IN RESPECT OF CRIMES
CHAPTER I CRIMINAL RESPONSIBILITY
 

     Section 1- Ordinary Responsibility

Article 48- Criminal Responsibility and Irresponsibility.
(1)    The criminal who is responsible for his acts is alone liable to punishment under the provisions of criminal law.
(2)    A person is not responsible for his acts under the law when, owing to age, illness, abnormal delay in his development, deterioration of his mental faculties, one of the causes specified under Article 49sub-article 1 or any other similar biological cause, he was incapable at the time of his act, of understanding the nature or consequences of his act, or of regulating his conduct according to such understanding.
(3)    The Court may order in respect of an irresponsible person such suitable measures of treatment or protection as are provided by law (Arts. 129-131).

Article 49- Partial Responsibility.
(1)    He who owing to one of the causes specified under Article 48 sub-article (2) above, or a derangement or an abnormal or deficient condition or any other similar biological cause was, at the time of his act, partially incapable of understanding the nature or consequences thereof or regulating his conduct according to such understanding shall be partially liable to the punishment specified for the crime committed. The court shall determine the sentence in accordance with Article 180.
(2)    In addition to a penalty the Court may order such appropriate measures of treatment, correction or protection as are provided by law (Arts. 129-131).

Article 50- Crimes Committed in a State of Irresponsibility Caused by Intoxication or Other Similar Conditions.
(1)    The provisions excluding or reducing liability to punishment shall not apply to any person who, in order to commit a crime or knowing that he could commit a crime, intentionally put himself into a condition of absolute irresponsibility or of limited responsibility by means of alcohol or drugs or any other means.
The general provisions of this Code are applicable in such a case.
(2)    If a criminal by his own fault has put himself into a condition of absolute irresponsibility or of limited responsibility while he was aware, or could or should have been aware, that he was exposing himself, in such a condition, to the risk of committing a crime, he shall be tried and punished under the ordinary provisions governing negligence, if the crime committed is punishable on such a charge (Art. 59).
(3)    In the case of a crime which was neither contemplated nor intended and was committed in a state of absolute irresponsibility into which the criminal put himself by his own fault, the provision of Article 491 of the Special Part of this Code relating to crimes against public safety shall apply.
(4)    No person shall be liable to punishment where he commits a crime while in a state of absolute irresponsibility, into which he has been coerced or for which he has no fault on his part.

Article 51-  Expert Examination in Doubtful Cases.
(1)    When there is a doubt as to the responsibility of the accused person, whether absolute or partial, the Court shall obtain expert evidence and may order an enquiry to be made as to the character, antecedents and circumstances of the accused person.
Such evidence shall be obtained particularly when the accused person shows signs of a deranged mind or epilepsy is deaf and dumb or is suffering from chronic intoxication due to alcohol or due to drugs.
(2)    The expert or experts shall be appointed by the Court under the ordinary rules of procedure. The Court shall define their terms of reference and the matters to be elucidated.
The expert evidence shall describe the present condition of the accused person and its effect upon his faculties of judgment and free determination. It shall, in addition, afford guidance to the Court as to the expediency and the nature of medical treatment of safety measures.
(3)    On the basis of the expert evidence the Court shall make such decision as it thinks fit. In reaching its decision it shall be bound solely by definite scientific findings and not by the appreciation of the expert as to the legal inferences to be drawn there from.

            Section II- Infants and Juvenile Delinquents

Article 52- Infancy: Exoneration from Criminal Provisions.
Infants who have not attained the age of nine years shall not be deemed to be criminally responsible. The provisions of this Code shall not apply to them.
Where a crime is committed by an infant, appropriate step may be taken by the family, school or guardianship authority.

Article 53- Special Provisions Applicable to Young Persons.
(1)    Where a crime is committed by young persons between the ages of nine and fifteen years, the penalties and measures to be imposed by the courts shall be only those provided in Articles 157-168 of this Code.
Young persons shall not be subject to the ordinary penalties applicable to adults nor shall they be kept in custody with adult criminals.
(2)    The provisions of Articles 158-168 of this Code shall not apply unless the criminal is convicted.
However, where the young person is irresponsible, the provisions of Articles 129-133 shall apply.

Article 54- Expert Evidence and Enquiry.
(1)    For the purpose of assessing sentence the Court may require information about the conduct, education, position and circumstances of the young criminal. It may examine his parents as well as the representatives of the school, guardianship authorities and the institutions concerned.
The Court may require from the above-mentioned persons and institutions the production of any files, particulars, medical and social reports in their possession concerning the young person and his family.
(2)    The Court before passing penalties or measures may order the young criminal to be kept under observation in a medical or educational centre, a home or any other suitable institution.
The Court may require the production of expert evidence regarding the physical and mental condition of the young person. The Court shall put such questions as may be necessary to any expert for the purpose of informing itself as to the physical and mental state of the young person and inquire what treatment and measures of an educational, corrective or protective kind would be most suitable.
(3)    In reaching its decision the Court shall be bound solely by definite scientific findings and not by the appreciation of the expert as to the legal inferences to be drawn.

Article 55- Assessment of Sentence.
In assessing the penalties or measures the Court shall take into account the age, character, degree of mental and moral development of the young criminal, as well as the educational value of the penalties or measures to be applied.
The Court may vary its order whenever it is of the opinion that this will help to achieve better results (Art. 164).

Article 56- Criminals over Fifteen but Under Eighteen years of Age.
(1)    If at the time of the commission of the crime the criminal was over fifteen by under eighteen years of age, he shall be tried under the ordinary provisions of this Code.
(2)    The Court may, in assessing sentence, take into account the circumstances of the case, in particular the age of the criminal, his incorrigible or dangerous disposion and the likelihood of his reform either by applying the general provisions regarding ordinary mitigation of penalties (Art. 179) or by applying one of the special penalties specified for young persons (Arts. 166-168).

CHAPTER II CRIMINAL GUILT

      Section I- Intention, Negligence and Accident.

Article 57- Principle; Criminal Fault and Accident.
(1)    No one can be punished for a crime unless he has been found guilty thereof under the law.
A person is guilty if, being responsible for his acts, he commits a crime either intentionally or by negligence.
(2)    No one can be convicted under criminal law for an act penalized by the law if it was performed or occurred without there being any guilt on his part, or was caused by force majeure, or occurred by accident.

          Sub-Section I-    Guilt in Case of a Simple Crime

Article 58- Criminal Intention
(1)    A person is deemed to have committed a crime intentionally where:
(a)    he performs an unlawful and punishable act with full knowledge and intent in order to achieve a given result; or
(b)    he being aware that his act may cause illegal and punishable consequences, commits the act regardless that such consequences may follow.
(2)    An intentional crime is always punishable save in cases of justification of excuse expressly provided by law (Arts. 68-81).
(3)    No person shall be convicted for what he neither knew of or intended, nor for what goes beyond what he intended either directly or as a possibility, subject to the provisions governing negligence.

Article 59-  Criminal Negligence.
(1)    A person is deemed to have committed a criminal act negligently where he acts:
(a)     by imprudence or in disregard of the possible consequences of his act while he was aware that his act may cause illegal and punishable consequences; or
(b)    by a criminal lack of foresight or without consideration while he should or could have been aware that his act may cause illegal and punishable consequences.
A Person is guilty of criminal negligence when, having regard to his personal circumstances, particularly to his age, experience, education, occupation and rank, he fails to take such precautions as might reasonably be expected in the circumstances of the case.
(2) Crimes committed by negligence are liable to punishment only if the law so expressly provides by reason of their nature, gravity or the danger they constitute to society.
The Court shall assess sentence according to the degree of guilt and the dangerous character of the criminal, and according to his realization of the possible consequences of his act or his failure to appreciate such consequences as he ought to have done.

         Sub-section II- Criminal Guilt in Case of Concurrence and Recidivism

Article 60-  Concurrent Crimes.
A person commits concurrent crimes:
a)  In cases of material concurrence, when the criminal successively commits two or more similar or different crimes, whatever their nature; or
b) in cases of notional concurrence, when the same criminal act simultaneously contravenes several criminal provisions or results in crimes with various material consequences; or
c) in the case of a criminal act which, though flowing from the same criminal intention or negligence and violating the same criminal provision, causes the same harm against the rights or interests of more than one person.

Article 61-   Unity of Guilt and Penalty.
(1)    The same criminal act or a combination of criminal acts against the same legally protected right flowing from a single criminal intention or negligence, cannot be punished under two or more concurrent provisions of the same nature if one legal provision fully covers the criminal acts.
(2)    Successive or repeated acts against the same legally protected right flowing from the same initial criminal intention or negligence constitute one crime; the criminal shall be punished for the said crime and not for each of the successive acts which constitute it.
Similarly, where the repetition or succession of criminal acts or the habitual or professional nature of a crime constitutes an element of an ordinary or aggravated crime, or where the criminal act is pursued over a period of time, the criminal shall be regarded as having committed a single crime and not concurrent material crimes.
(3)    In cases where the criminal is regarded to have intention to commit a specific crime, in particular where he committed a crime on property to obtain unlawful enrichment or he made counterfeit currency, used it or put it into circulation or executed a forged document and used it, the subsequent acts performed by the criminal himself after the commission of the main crime for the purpose of carrying out his initial criminal scheme shall not constitute a fresh crime liable to punishment and are merged by the unity of intention and purpose.

Article 62- Renewal of Guilt Entailing a Fresh Penalty.
When a criminal having committed a crime as specified in Article 61 commits with renewed criminal intention or negligence another crime of the same kind, whether against the same person or the same legally protected right, such crime constitutes a fresh crime and the Court shall aggravate the sentence on ground of concurrence as provided in Article 184.

Article 63-  Guilt in Case of Related Crimes.
When a criminal commits a crime with the intention or causing or facilitating the commission of another punishable crime the provisions regarding aggravation of penalty in case of concurrence shall apply (Art. 184), when this has been attempted unless such crime is declared by law to be an aggravated crime.

Article 64- Guilt in Case of Other Concurrent Material Crimes.
Where a criminal successively commits different crimes other than those specified in Article 62 and 63, the provisions of Article 184 of this Code shall apply.
Article 65- Gilt in Case of Notional Concurrence Violating Different Legal Provisions.
In case of notional concurrence where the act simultaneously contravenes different legal provisions, the punishment shall be determined in accordance with Article 187(1).
Article 66- Guilt in Case of Notional Concurrence Resulting in Crimes with Various Material Consequences.
(1)    When a given crime implying an injury to persons or property, or the use of arms, instruments or dangerous means, fire or explosives, poison or toxic substances, entails and injury whereby the elements constituting a second crime have materialized, whether it be bodily injury, injury to health, death of a human being or the destruction of another person’s property, the Court shall apply the following principles for determining the guilt and the penalty:
(a)    if the result achieved was intended or foreseen and accepted by the criminal (Art. 58(1)), when he committed the first crime, he shall be punished for both the first crime and the resulting crime and aggravation shall apply in accordance with the relevant provisions (Arts. 184 and 187(2)(a)), due regard being had to the combination of the elements constituting the two intentional crimes;
(b)    if an intentional crime results in a crime committed by negligence (Art. 59(1)) there shall be concurrence between the intentional act and the resulting crime due to negligence, and the Court shall increase the penalty accordingly (Art. 187(2)(a));
(c)    if the first crime committed by negligence results in another crime punishable for negligence, there shall be concurrence between the crimes committed by negligence and the Court shall aggravate the penalty accordingly (Art. 187(2)(b)).
(d)    Aggravation shall apply in particular where the criminal result was achieved by means endangering public safety, such as arson, explosion, use of explosives or where communication or public health are in danger as well as in the case of exposure of persons, maltreatment, brawl, abortion, rape or sexual outrages (Arts. 187(2)(c) and 184).

Article 67- Guilt in Case of Recidivism.
The Court shall aggravate the penalty on ground of recidivism (Art. 188) when a fresh intentional crime the minimum penalty of which is six months of simple imprisonment has been committed within five years of serving a sentence of imprisonment in whole or in part of having been remitted by pardon.

Section II- Lawful Acts, Justifiable Acts and Excuses
Sub-section I-  Lawful Acts

Article 68- Acts Required or Authorized by Law.
Acts required or authorized by law do not constitute a crime and are not punishable; in particular:
(a)    acts in respect of public, State or military duties done within the limits permitted by law;
(b)    acts reasonably done in exercising the right of correction or discipline; or
(c)    acts done in the exercise of private rights recognized by law, where the conditions and limits of the exercise of such rights are not exceeded.

Article 69-  Professional Duty.
An act done in the exercise of a professional duty is not liable to punishment when it is in accordance with the accepted practice of the profession and the doer does not commit any grave professional fault.

        Sub-section II- Justifiable Acts and Excuses

Article 70-  Consent of the Victim.
(1)    A crime is not liable to punishment where it is punishable upon complaint and where it is done with the consent of the victim or his legal representative.
(2)    Without prejudice to the provision of Article 573 of this Code, when any person, having entered into a contract of his own free will without any commercial purposes, donates while alive or causes to be donated after his death, his body, a part of his body or one of his organs to another person for personal use or to a juridical person for appropriate and necessary scientific research or experiment, the recipient shall not be criminally liable.

Article 71-  Absolute Coercion.
Whoever, without causing greater harm than he could have suffered, commits a crime under an absolute coercion which he could not possibly resist, is not liable to punishment. The person who exercised the coercion shall answer for the crime (Art. 32(1)(c).
The Court shall determine the existence of absolute coercion, taking into account the circumstances of the case, in particular the degree and nature of the coercion as well as the personal circumstances and the relationship of strength, age or dependency existing between the person who was subjected to coercion and the person who exercised it.

Article 72- Resistible Coercion.
If the coercion was not irresistible and the person concerned was in a position to resist it or avoid committing the act, the court shall pass sentence on the criminal (Art. 180).

Article 73-  Responsibility of Person Giving an Order.
In the case of an act committed by a subordinate on the express order of an administrative or military superior who was competent so to do, the person who gave the order is responsible for the crime committed and is liable to punishment, where the subordinate’s act constitutes a crime and did not exceed the order given (Art.58(3)).

Article 74-  Responsibility of the Subordinate.
(1)    The subordinate shall be liable to punishment if he was aware of the illegal nature of the order, in particular if he knew that the order was given without authority or knew the criminal nature of the act ordered, such as in cases of homicide, arson or any other grave crime against persons, or national security or property, essential public interests or international law.
(2)    The Court may, without restriction, reduce the penalty when the person who performed the act ordered was moved by a sense of duty dictated by discipline or obedience; in particular where the duty is of a compelling nature the Court shall reduce the penalty without restriction (Art. 180).
The Court may impose no punishment where, having regard to all the circumstances and in particular to the stringent exigencies of State or military discipline, the person concerned could not discuss the order received and act otherwise than he did.
(3)    In the event of an order being intentionally exceeded, the person who exceeded the order is alone responsible for the excess.

Article 75-  Necessity.
An act which is performed to protect from an imminent and serious danger a legal right belonging to the person who performed the act or a third party is not liable to punishment if the danger could not have been otherwise averted.
No exemption shall apply in the case of a similar act done by a person having a special professional duty to protect life or health; however, the Court may reduce the penalty without restriction (Art. 180).

Article 76-  Excess of Necessity.
If the abandonment of the threatened right could reasonably have been required in the circumstances of the case or if the encroachment upon the third party’s rights exceeded what was necessary or if the doer, by his own fault, placed himself in the situation involving danger or necessity in which he found himself, the Court may, without restriction, reduce the penalty. (Art.180).

Article 77-  Military State of Necessity.
(1)    An act done by an officer of a superior rank in active service to maintain discipline or secure the requisite obedience in the case of a military danger and in particular in the case of a mutiny or in the face of the enemy shall not be punishable if the act was the only means, in the circumstances, of obtaining obedience.
(2)    Where the officer exceeded what was required in the circumstances the Court shall, without restriction, reduce the penalty (Art. 180) or, if the circumstances were of a particularly impelling nature, may impose no punishment.

Article 78- Legitimate Defence
An act done in self-defence or the defence of another person against an unlawful attack or an imminent and unlawful attack against a legally protected right shall not be punishable if the attack or imminent attack could not have been otherwise averted and if the defence was proportionate to the needs of the case.

Article 79- Excess in Legitimate Defence.
(1)    When a person in repelling an unlawful attack or an imminent and unlawful attack exceeded the limits of legitimate defence by using disproportionate means or going beyond the acts necessary for averting the danger, the Court shall, without restriction, reduce the penalty (Art. 180).
(2)    The Court may impose no punishment when the excess committed was due to excusable fear, surprise or excitement caused by the attack.

Article 80- Mistake of Fact.
(1)    Whoever commits a crime under an erroneous appreciation of the true facts of the situation shall be tried according to such appreciation.
Where there is no criminal intention the doer shall not be punishable. Where he could have avoided the mistake by taking such precautions as were commanded by his personal position and the circumstances of the case (Art. 59), he shall be punishable for negligence in cases where such negligence is penalized by law.
(2)    Mistake as to a fact which constitutes a specified crime shall not exclude the punishment of the doer for another crime constituted by the act he performed.
(3)    The crime is committed where there is a mistake as to the identity of the victim or the object of the crime.

Article 81- Mistake of Law and Ignorance of Law.
(1)    Ignorance or mistake of law is no defence.
(2)    The Court shall, without restriction, reduce the punishment (Art. 180) applicable to a person who in good faith believed he had a right to act and had definite and adequate reasons for holding this erroneous belief.
The Court shall determine the penalty taking into account the circumstances of the case and, in particular, the circumstances that led to the error.
(3)    In exceptional cases of absolute and justifiable ignorance and good faith and where criminal intent is not apparent, the Court may impose no punishment.

           Section III-  Extenuating and Aggravating Circumstances

Article 82- General Extenuating Circumstances.
(1)    The Court shall reduce the penalty, within the limits allowed by law (Art. 179), in the following cases:
(a)    when the criminal who previously of good character acted without thought or by reason of lack of intelligence, ignorance or simplicity of mind;
(b)    when the criminal was prompted by an honorable and disinterested motive or by a high religious, moral or civil conviction;
(c)    when he acted in a state of great material or moral distress or under the apprehension of a grave threat or a justified fear, or under the influence of a person to whom he owes obedience or upon whom he depends;
(d)    when he was led into grave temptation by the conduct of the victim or was carried away by wrath, pain or revolt caused by a serious provocation or an unjust insult or was at the time of the act in a justifiable state of violent emotion or mental distress;
(e)    When he manifested a sincere repentance for his acts after the crime, in particular by affording succour to his victim, recognizing his fault or delivering himself up to the authorities, or by repairing, as far as possible, the injury caused by his crime, or when he on being charged, admits every ingredient of the crime stated on the criminal charge.
(2)    When the law, in a special provision of the Special part, has taken one of these circumstances into consideration as a constituent element or as a factor of extenuation of a privileged crime, the Court may not at the same time allow for the same circumstance to reduce the penalty applicable thereto.

Article 83-  Special Mitigating Circumstances: Family and Affection Relationships.
(1)    In addition to the cases specified under various provisions of this Code to be special mitigating circumstances under Article 180, the Court shall, without restriction, reduce the punishment (Art. 180) when the criminal acted in a manner contrary to the law and in particular failed in his duty to report to the authority or afford it assistance, made a false statement or deposition or supplied false information or assisted a criminal in escaping prosecution or the enforcement of a penalty, for the purpose of not exposing himself, one of this near relatives by blood or marriage or a person with whom he is connected by specially close ties of affection, to a criminal penalty, dishonour or grave injury.
The Court shall examine and determine the existence and adequate nature of the relationships invoked.
(2)    If the act with which the accused person is charged was not very grave and if the ties in question were so close and the circumstance so impelling that they placed him in a moral dilemma of a particularly harrowing nature the Court may exempt him from punishment other than reprimand or warning (Art. 122).
(3)    Nothing in this Article shall affect the provisions of Arts. 254 (4), 335(3) and 682(4).

Article 84-  General Aggravating Circumstances.
(1)    The Court shall increase the penalty as provided by law (Art. 183) in the following cases:
(a)    when the criminal acted with treachery, with perfidy, with a base motive such as envy, hatred, greed, with a deliberate intent to injure or do wrong, or with special perversity or cruelty;
(b)    when he abused his powers, or functions or the confidence, or authority vested in him;
(c)    when he is particularly dangerous on account of his antecedents, the habitual or professional nature of his crime or the means, time, place and circumstances of its perpetration, in particular if he acted by night or under cover of disturbances or catastrophes or by using weapons, dangerous instruments or violence;
(d)    when he acted in pursuance of a criminal agreement, together with others or as a member of a gang organized to commit crimes and, more particularly, as chief, organizer or ringleader;
(e)    when he intentionally assaulted a victim deserving special protection by reason of his age, state of health, position or function, in particular a defenceless, feeble-minded or invalid person, a prisoner, a relative, a superior or inferior, a minister of religion, a representative of a duly constituted authority, or a public servant in the discharge of his duties.
(2) When the law, in a special provision of the Special part, has taken one of the same circumstances into consideration as a constituent element or as a factor of aggravation of a crime, the court may not take this aggravation into account again.

Article 85-  Special Aggravating Circumstances: Concurrence and Recidivism.
In case of concurrence of crimes and recidivism, the penalty shall be aggravated according to the provisions of Articles 184-188 of this Code.

Article 86-   Other General Extenuating and Aggravating Circumstances.
The Court shall give reasons for applying general extenuating (Art. 179) or aggravating (Art. 182) circumstances not expressly provided for in this Code and shall state clearly its reasons for such application.