Mitigating circumstances are the causes of reduction of sentence for a crime, such as the fact that the defendant is under 21, for example. They are provided for in the Article 65 of the Penal Code (CP).
See also the meaning of mitigating.
After establishing the base penalty for a certain crime, the judge considers the extenuating circumstances, which reduce the penalty, and the aggravating circumstances, which may increase, to compose the sentence. These must be presented by lawyers for both parties during the process.
There are jurisprudence in Brazilian Criminal Law that consider Premenstrual Tension (PMT) as a mitigating circumstance of a crime, as it acts as a disturbance of the mental state.
According to the Brazilian Penal Code, the mitigating circumstances of a crime are:
- Minority attenuator: when the defendant is under 21 years of age.
- Confession mitigation: if the defendant assumed the crime spontaneously, he may have the sentence reduced.
- A defendant over 70 years of age at the time of sentencing must also have his sentence reduced.
- Repairing the damage before the trial date, or trying to avoid or lessen the consequences of the crime.
- Ignorance of the law is also a mitigating factor in the penalty. It is possible for the defendant to claim that he did not know that what he was doing was a crime. The resource is widely used in administrative crimes defenses.
- Whether the crime was committed under duress or in order to carry out orders from someone in authority.
- Whether the motivation was for social or moral value.
- And finally, if the criminal action was caused in the midst of a riot, influenced by a crowd. As long as the defendant was not the cause of the situation.
The use of mitigating circumstances is mandatory when determining the sentence, not just a suggestion to the judge.
Article 66 of the Penal Code defines the so-called generic or unnamed mitigating circumstances. Events not determined by article 65 but which are exceptions to be considered according to the case. The clearest example of a generic mitigation is the defendant's regret.
Aggravating circumstances
In addition to extenuating circumstances, a judgment takes into account aggravating circumstances. Those that can increase the time of the sentence.
Aggravating circumstances are provided for in articles 61 and 62 of the Penal Code (CP) and are more subjective than mitigating ones. They involve a wide range of circumstances, the most usual in Brazilian law being the fact that the defendant is again committing a crime, if the motive is futile, if the defendant was drunk at the time, and if there was an attempt to hide the crime.