2024

DOI:https://www.doi.org/10.31178/AUBD/2024.02

Abstract: The absence ofan explicit mention of the legal nature of the aggravation of the penalty in cases where an offense is committed with the intent to obtain a financial benefit also stems from the different impact it has on the principal penalty, depending on whether that penalty is a fine or imprisonment. The consequences appear to correspond to a dual nature (one similar to the optional aggravation of the special limits of daily fines, and the other to the addition of a fine to the prison sentence) sui generis (as a special and alternative sanction to imprisonment or a fine, due to its optional nature, in the case of certain categories of offenses).

Regardless of the legal nature of the institution—whether it is a special or alternative penalty for certain categories of crimes or a special aggravating circumstance—its consequences are clear in terms of aggravating the penalty, and the manner in which the provisions of Article 61 and Article 62 of the Criminal Code are applied clarifies its aggravating nature and the mechanism for individualizing the penalty.

Given the explicit possibility of derogating from the provisions of the General Part of the Criminal Code, the question arises as to the limits of such derogations: could derogations also apply to the general maximum penalty, as regulated in the general part of the Criminal Code, or only with regard to the content of the sanctions, or also with regard to the sanctioning regime applicable to certain categories of persons subject to criminal law, or only in matters that do not affect the legality of the criminalization and punishment within the limits established by the general part of the Criminal Code.

If the law provides for special aggravating circumstances, in the absence of a specific provision, the effect of the increased penalty can only be that provided for in the general rule.

Keywords:punishment, alternative special sanction, crimes committed for financial gain, aggravating circumstance