The defendant's supererogatory behavior as mitigation basis

Abstract

The paper offers a dogmatic reconstruction of the fundament and elements of the mitigating circumstances which are based upon the supererogatory trial behaviour of the accused. For that purpose, the paper presents a general taxonomy of so called 'modifying circumstances', fixed in arts. 11, 12 and 13 of the Penal Code, putting to work a systematic distinction between circumstances related and circumstances alien to the given offence. Upon this basis, the paper elucidates the distinctive nature of those circumstances which —being alien to the offence— concern the accused's trial behavior, so that the specific criteria that ought to guide the application of the corresponding rules can be properly determined.