Judge‘s Discretion in Imposing Sentences
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Abstract
The article analyses rules of the Code of Criminal Law of the Republic of Lithuania (hereinafter – the Criminal Code) which regulate imposing sentences. This is done from the viewpoint of judge’s discretion in imposing sentences. The author sets out four major reasons which, in his opinion, justify the necessity of the existence of judge’s discretion.
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First of all, due to rapid development of economic, social and political relations in the present Lithuanian society and change of values and priorities in recent years, the legislator finds it difficult to draw up legal rules which would be effective for a long time because it is complicated to make an accurate assessment of development and changes of social relations and to provide for all possible legal relations in legal rules.
Second, in theory social relations can be regulated in legal acts with much detail, so that only one particular decision established in legislation could be applied for a case in question. Taking into account that specific cases are very different, such legal acts would be very casuistic and cumbrous, therefore modern states nowadays usually employ lawmaking technique on the basis of which legal acts which are being drafted specify features of social relations which are most important for law application, meanwhile the application of legal regulation to a specific case is left, to a certain extent, to the discretion of the judge.
Third, during the lawmaking process it can happen that the legislator intended to draw up a clear rule with only one meaning, however, the formulation turned out to be ambiguous and so the judge has to clear up the content of the rule himself, to the extent of his discretion.
Forth, the legislator intentionally draws up and issues legal rules the application of which is left for the discretion of the judge.
The article discusses features typical of judge’s discretion, such as legality, lawfulness, justice, and presents the notion of judge’s discretion in imposing sentences.
Judge’s discretion in imposing sentences is an activity of the judge in relation to imposing sentences pursuant to the requirements of the criminal code and principles of the criminal law when the criminal code provides for more than one alternative solution.
The second part of the article is devoted to ways which can be used by the legislator to restrict the judge’s freedom of choice in a sentence imposing process. This can be done employing such elements of lawmaking technique as legal constructions, presumptions of law, fictions of law and legal terminology.
Legal constructions are models, typical wordings used by the legislator when drawing up legal rules.
A presumption of law is an assumption set forth in legislation with respect to the existence of certain facts and circumstances and reliability thereof in the presence of certain facts.
A fiction is a lawmaking element which recognizes something which does exist to be non-existing and vice versa.
Legal terminology should be unambiguous, stable, unified and professional.
In the author’s opinion, an important role in restricting judge’s free choice is played by the sanction set forth in the article providing for liability for a particular criminal act contained in the specific part of the Criminal Code. The version of the Criminal Code which was in force as on 26-05-2004 contained even 196 out of 229 articles of the specific part covering elements of criminal acts which provided for alternative sanctions. This equals to 85,59 % of the sanctions established in the articles of the specific part of the Criminal Code. Such sanctions give the judge more freedom in imposing sentences. The Criminal Code in force on 26 May 2004 contained 22 articles sanctions in which provided for minimum magnitude of punishment. This makes up only 9,6 % of the articles of the specific part of the Criminal Code.
The author points out that courts of appeals and cassation help to reduce a possibility of a mistake or abuse when enjoying the freedom granted to the judge in a sentence imposing process.
93
First of all, due to rapid development of economic, social and political relations in the present Lithuanian society and change of values and priorities in recent years, the legislator finds it difficult to draw up legal rules which would be effective for a long time because it is complicated to make an accurate assessment of development and changes of social relations and to provide for all possible legal relations in legal rules.
Second, in theory social relations can be regulated in legal acts with much detail, so that only one particular decision established in legislation could be applied for a case in question. Taking into account that specific cases are very different, such legal acts would be very casuistic and cumbrous, therefore modern states nowadays usually employ lawmaking technique on the basis of which legal acts which are being drafted specify features of social relations which are most important for law application, meanwhile the application of legal regulation to a specific case is left, to a certain extent, to the discretion of the judge.
Third, during the lawmaking process it can happen that the legislator intended to draw up a clear rule with only one meaning, however, the formulation turned out to be ambiguous and so the judge has to clear up the content of the rule himself, to the extent of his discretion.
Forth, the legislator intentionally draws up and issues legal rules the application of which is left for the discretion of the judge.
The article discusses features typical of judge’s discretion, such as legality, lawfulness, justice, and presents the notion of judge’s discretion in imposing sentences.
Judge’s discretion in imposing sentences is an activity of the judge in relation to imposing sentences pursuant to the requirements of the criminal code and principles of the criminal law when the criminal code provides for more than one alternative solution.
The second part of the article is devoted to ways which can be used by the legislator to restrict the judge’s freedom of choice in a sentence imposing process. This can be done employing such elements of lawmaking technique as legal constructions, presumptions of law, fictions of law and legal terminology.
Legal constructions are models, typical wordings used by the legislator when drawing up legal rules.
A presumption of law is an assumption set forth in legislation with respect to the existence of certain facts and circumstances and reliability thereof in the presence of certain facts.
A fiction is a lawmaking element which recognizes something which does exist to be non-existing and vice versa.
Legal terminology should be unambiguous, stable, unified and professional.
In the author’s opinion, an important role in restricting judge’s free choice is played by the sanction set forth in the article providing for liability for a particular criminal act contained in the specific part of the Criminal Code. The version of the Criminal Code which was in force as on 26-05-2004 contained even 196 out of 229 articles of the specific part covering elements of criminal acts which provided for alternative sanctions. This equals to 85,59 % of the sanctions established in the articles of the specific part of the Criminal Code. Such sanctions give the judge more freedom in imposing sentences. The Criminal Code in force on 26 May 2004 contained 22 articles sanctions in which provided for minimum magnitude of punishment. This makes up only 9,6 % of the articles of the specific part of the Criminal Code.
The author points out that courts of appeals and cassation help to reduce a possibility of a mistake or abuse when enjoying the freedom granted to the judge in a sentence imposing process.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
